By Mr Anthony J Aristei
This is the first in a series of blogs that will focus on Migration Law.
If you have a matter in the Court or Tribunal and you are not ready to proceed with the final hearing, you may want to make an application for an adjournment.
Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Is your matter listed for a hearing? Call us at our 24/7 hotline +61 8 6323 8697. Kean Legal Barristers & Solicitors is ready to help.
When you make an application for a visa or appealing a decision where the visa has been refused, the Courts will often list the final hearing up to a year in advance. Up until the final hearing, the visa applicant is generally entitled to retain their pre-existing status, pending the outcome of the hearing. The aim of the lengthy time period is to ensure that both the migration authorities and the visa applicant are given a reasonable opportunity to put forward their respective cases for and against the grant of the particular class of Visa.
What is an adjournment?
To put it simply, an adjournment means that the court date or hearing is moved to a later date.
Generally, the Court or Tribunals are against changing a hearing date given the length of the time until the hearing and also the detailed directions for compliance by the respective parties. This however does not mean that the hearing date is ‘cast in stone’.
An applicant can make an application for the hearing date to be adjourned. The Court or Tribunal exercises a broad discretion, weighing the factors in favour of an adjournment, against the factors detracting from it.
What does the court look at?
The primary test is whether it is in the ‘Interests of Justice’ to allow or refuse the adjournment application. It is difficult to determine how likely a Court or Tribunal will grant an adjournment because the specific circumstances of every case are different.
Even where there is a ‘serious case’ for refusing an application for adjournment, the Court has in the past granted an adjournment because of the particular circumstances: see, for example, BMC15 v Minister for Immigration & Anor [2017] FCCA 1990.
What happens if an adjournment is granted?
If an adjournment is granted, the hearing date is vacated. At that point, there will usually be an adjournment to another directions hearing date- i.e, to enable both parties to re-program the steps and directions for a final hearing.
The most important direction to be made is for the relisting of a later hearing date. If an aggrieved client is concerned about any aspect of their legal representation by that time, it is important that they obtain alternate legal representation well before obtaining any relisted hearing date. If not, any future application for a further adjournment for that purpose is likely to be frowned upon.
In a future blog, we will focus on a range of different examples, where adjournment applications have been either allowed or refused.