Refugee Status Appeals Authority
REFUGEE APPEAL NO. 112/92
AT AUCKLANDBefore: A R Mackey (Chairperson)
C M Treadwell (Member)
Counsel for the Appellant: Mr R Hooker & Mr G Monk
Representative of NZIS: No Appearance
Date of Hearing: 22 September 1995
Date of Decision: 22 September 1995
Date of delivery of reasons
for decision: 27 October 1995
DECISION ON APPLICATION FOR ADJOURNMENT______________________________________________________________________
The appellant is an Indian national of the Sikh faith, born in the Punjab.
On 22 September 1995 counsel for the appellant appeared in support of an application for an adjournment of the hearing of the appellant’s appeal. At the conclusion of the hearing of the application the appellant was advised that the adjournment would be allowed and that the reasons for the Authority’s decision would be delivered later, in writing. The Authority now records is reasons for its decisions.
BACKGROUNDIt is appropriate that we set out the chronological history of the appellant’s refugee application so that the present application can be seen in context.
3.7.89 Appellant arrives in New Zealand.
2.10.90 Appellant lodges application for refugee status, represented by Mr R Chambers, Barrister
21.8.91 Immigration Service interviews appellant, Mr Chambers present as counsel.
14.11.91 Appellant’s application for refugee status declined.
22.11.91 Notice of Appeal to this Authority is filed by Mr Chambers on behalf of the appellant.
20.8.92 Appeal is heard. Mr Chambers appears as counsel but appellant fails to appear.
12.11.92 The Authority delivers its decision, declining the appeal.
30.3.93 Vallant Hooker & Partners give notice that they are now instructed by appellant.
21.2.94 Vallant Hooker & Partners file application for rehearing of appellant’s appeal.
8.4.94 The Authority hears application for rehearing. Appellant represented by Mr Hooker. Application granted.
29.6.94 The Authority writes to Vallant Hooker & Partners advising that appeal is to be heard on 3 August 1994.
26.7.94 At Vallant Hooker & Partners’ request the appellant’s appeal hearing is adjourned sine die, pending resolution of Refugee Appeal No. 523/92.(1)
17.3.95 The Authority delivers its decision in Refugee Appeal No. 523/92.
24.5.95 The Authority writes to Vallant Hooker & Partners advising that the appellant’s appeal is to be heard on 20.6.1995.
.6.95 At the telephone request of Vallant Hooker & Partners, the appeal is rescheduled for 5.7.95.
19.6.95 Vallant Hooker & Partners write to the Authority seeking a further adjournment on the grounds that Mr Hooker is unavailable to appear as counsel for the rest of July.
29.6.95 The Authority writes to Vallant Hooker & Partners, advising that the appeal is set down for hearing on 3 August 1995.
.7.95 Vallant Hooker & Partners telephone the Authority to advise that Mr Hooker will not in fact be back in New Zealand in time for the hearing on 3 August 1995 and requesting a further adjournment.
1.8.95 The Authority writes to Vallant Hooker & Partners, advising that the appeal is set down for hearing on 31 August 1995.
8.8.95 Vallant Hooker & Partners write to the Authority to advise that Mr Hooker will not be back in New Zealand until 13 August 1995 and requesting an adjournment on the grounds that they are unsure whether he will be in a position to deal with the appeal on 31 August 1995.
16.8.95 The Authority telephones Vallant Hooker & Partners and obtains their confirmation that the appeal may proceed on 22 September 1995. The Authority also writes to Vallant Hooker & Partners to record that they had “confirmed the ...[fixture]”.
5.9.95 The Authority writes to Vallant Hooker & Partners:(i) enclosing a copy of the appellant’s Immigration Service file;(ii) giving notice that the Authority requires the appellant to file any submissions and any further evidence three clear days before the hearing;(iii) reminding the appellant that a refugee claimant carries the burden of proving his claim to refugee status;(iv) confirming that an interpreter has been arranged.21.9.95 Vallant Hooker & Partners send a facsimile to the Authority seeking an adjournment for at least two months on the grounds:(i) they require time to obtain further information on the recent assassination of the Punjab Chief Minister, Beant Singh;(ii) the appellant requires advance notice of any findings of fact in Refugee Appeal No. 523/92 Re RS (17 March 1995) upon which the Authority intends to rely in his case.21.9.95 The Authority sends a facsimile to Vallant Hooker & Partners requesting that both appellant and counsel appear at 9.00am on 22 September 1995 in respect of the adjournment application and requesting that they be ready to proceed to an immediate hearing of the appeal if in fact the application is not granted.
21.9.95 Vallant Hooker & Partners send a facsimile to the Authority notifying the Authority that if in fact the application is not granted the appellant will apply to the High Court on the morning of 22 September 1995 for an interim order restraining the Authority from hearing the appeal on that date.
It is against this background that Mr Hooker and Mr Monk appeared before the Authority at 9.00am on 22 September 1995. The appellant himself arrived some 15 minutes later.
SUBMISSIONS ON THE APPLICATION FOR ADJOURNMENT
The appellant did not produce any evidence in support of the application for an adjournment.
In his oral submissions, Mr Hooker put forward three grounds in support of the application for an adjournment.
First, he advised the Authority that he had only the previous day received confirmed instructions that the appellant in fact still wished Mr Hooker to represent him.
Second, time was needed to collate information regarding the assassination of Beant Singh. Mr Hooker advised the Authority that to his recollection this was not a case of police persecution, but of terrorist persecution. The assassination of Beant Singh, allegedly by Sikh militants, was therefore relevant to the appellant’s case.
Third, Mr Hooker submitted that one of the principles to be drawn from the decision of the High Court in Santokh Singh v Refugee Status Appeals Authority & Anor (unreported, Smellie J, Auckland High Court, 9 February 1994) was that the rules of natural justice require the Authority to give to every appellant, in advance of the hearing, notice of all factual information that is to be relied upon by the Authority in reaching its decision.
With this principle in mind Mr Hooker submitted to the Authority that the findings of fact in Refugee Appeal No. 523/92 Re RS (17 March 1995) on the question of relocation ought to be put to the appellant in advance of the hearing if in fact the Authority intends to rely upon them. Given that no such findings of fact have yet been put to the appellant by the Authority, Mr Hooker submitted that neither the appellant nor he had been able to prepare properly for the appeal and were therefore unable to proceed.
ASSESSMENT OF THE GROUNDS OF APPLICATIONWe propose to address in turn each of the three grounds of application, namely:
1. The assassination of Beanth Singh.
2. The question of the appellant's right to notice, in advance of the appeal hearing, of relevant information.
3. The state of preparedness of counsel.
1. The assassination of Beant Singh
The late Beant Singh was the Chief Minister of the Punjab. He was recently killed by a car bomb in New Delhi. His assassination was recorded in the New Zealand Herald of 2 September 1995 in the following terms:
“Police launch probe into assassination India mourns state leaderCHANDIGARH - Detectives and forensic experts were yesterday trying to find out how assassins managed to breach top security to kill India’s Punjab state Chief Minister and 15 other people with an apparent car bomb.The Chief Minister, Beant Singh, who was among the 19 most protected Indians, was blown up as he got into his bullet-proof car in Chandigarh outside the government secretariat building.“We cannot say when this [investigation] will finish,” a police officer said as the nation mourned the 73-year-old Singh politician who was credited with restoring peace in Punjab after 10 years of Sikh militancy.An Indian minister said in New Delhi that the investigation, assisted by intelligence agencies, would determine how the assassins breached the elaborate security surrounding Mr Beant Singh.
“We will certainly look into the security lapse,” the Minister of State for Internal Security, Mr Pilot, said. “We will get the cowardly culprits and they will be punished severely.”
A Sikh militant group, through to have been wiped out in a merciless police drive in Punjab launched after Mr Beant Singh took office in 1992, has claimed responsibility.The Babbar Khalsa said in a statement faxed to the United News of India news agency that Mr Beant Singh was killed because “he had betrayed the Sikh community”.“We had to give the death sentence to him because of this,” said the statement signed by Wadhawa Singh and Mahal Singh, two of the group leaders sought by Indian authorities.Mr Pilot said the assassination could boost Sikh militancy in Punjab, a prosperous state of 21 million people which borders Pakistan.New Delhi accuses Islamabad of arming and training Sikh militants. Pakistan denies this.
“It will boost the morale of the militants, the fact that they could get the Chief Minister,” Mr Pilot said. “That is one reason we need to get the killers.”
India has declared two days of mourning for Mr Beant Singh.The police were on maximum-security “red alert” yesterday in Punjab and adjoining Haryana state as well as in New Delhi.Mr Beant Singh, a leader of Prime Minister Rao’s Congress Party, was blown up by a powerful explosion late on Thursday local time.The ear-splitting blast also killed 15 others, including at least three elite “black cat” commandos and several policemen and aides of Mr Beant Singh. Nearly 20 others were injured, five of them seriously.Mr Pilot said it was still not clear where the bomb was placed although most newspapers said that it may have been smuggled into Mr Beant Singh’s cream-white car.” - AFPIt is Mr Hooker’s argument that the assassination of Beant Singh is relevant to the appellant’s case. Mr Hooker advised us that, as he recalled, the appellant’s case is one involving a fear of persecution by militants (non-state agents) and is not one involving a fear of persecution at the hands of state agents. In point of fact, in an affidavit sworn by the appellant on 11 February 1994 and filed by Vallant Hooker & Partners, the appellant states that he fears both state and non-state agents of persecution. Mr Hooker then advised the Authority that he had himself been to India recently and had learned (from whom was not disclosed) that Punjabi militancy is more widespread than previously supposed and that the death of Beant Singh was consistent with this. It was therefore appropriate, he submitted, that two months be allowed to the appellant to investigate the matter.
The Authority asked Mr Hooker whether, in the three weeks that had elapsed since Beant Singh’s assassination, either he or the appellant had put steps in train to obtain further information from India as to the implications for the appellant’s case. Mr Hooker advised the Authority that no such steps had been taken. Mr Hooker advised that he had only received confirmed instructions to appear for the appellant on the previous day (21 September 1995) and for this reason had not had time to organise such research.
It appears to the Authority from the Immigration Service filet hat Mr Hooker’s firm, Vallant Hooker & Partners, have been acting for the appellant since at least March 1993. Four previous adjournments or changes of hearing date have occurred, the first at Mr Hooker’s own request and the later three because of difficulties caused by his own personal timetable. The Authority was accordingly surprised to learn that “confirmed instructions” had only been received by Mr Hooker the previous day. There was certainly no indication on the file to contradict or amend his firm’s advice of 19 June 1995 that:“Mr Hooker of this office ... is counsel for the [appellant] ...”Or his firms’ advice of 8 August 1995 that:“... Mr Hooker of this office is responsible for the [appellant’s] file.”Mr Hooker explained that by the term “confirmed instructions” he meant that, until the previous day, there had been an element uncertainty as to whether he would be asked by the appellant to appear at the appeal hearing. The Authority enquired as to the reason why there had been some uncertainty but Mr Hooker was not willing to elaborate further, advising the Authority that in his view it was not relevant to his client’s application.
We take the contrary view. Subject to the rules of fairness, the granting of an adjournment is a matter involving the exercise of the Authority’s discretion. Bearing in mind the Authority’s concern to minimise the clear potential for abuse of the system by the adjournment of cases without proper reason, it should be obvious that the interests of an appellant with a genuine need for an adjournment are best served if a full and frank explanation is given to the Authority.
We return to the ground based upon the death of Beant Singh.
We do not accept that an adjournment is appropriate on this ground, for the following reasons:
1. Looking as it does to the future, the Refugee Convention requires an assessment to be made of prospective risk. A refugee claimant needs to establish a real chance of persecution in the future. See the decision of the Federal Court of Australia in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the decision of this Authority in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991). Because a degree of speculation is inevitably involved in the assessment required of the Authority it could be said that almost all developments and even possible developments in the claimant’s country of origin might impact on the assessment of the claim, thereby precluding any assessment of the real chance test as the picture’ of human rights conditions is constantly changing.
2. The affairs of man are, by their very nature, subject to change every day. If every development in an appellant’s home country were to provide grounds for an adjournment then few refugee claims would ever come to hearing. Common experience shows that the human rights situation in most countries changes from day to day. Seldom, if ever, do they reach a point of stasis which permits a static picture to be assessed. The picture is, more often than not, a changing one.
3. The Authority is not in a position to judge the relevance of any fact until the appellant’s case has been heard and due consideration given to the facts in their entirety. Indeed, were it otherwise, the Authority would be open to the accusation of pre-determination and bias.
4. It is impossible to predict whether a new fact or circumstance will prove, in the longer term, to benefit an appellant’s claim or to prejudice it. For example, the death of Beant Singh may indeed prove to be evidence of a resurgence of militancy in the Punjab and/or elsewhere. It may equally, however, result in a severe crackdown, leading to the reduction or virtual elimination of the militants’ power, a circumstance which would weaken the appellant’s claim. Neither the Authority, appellants nor their counsel can possibly know whether future developments will support or contradict an appellant’s claim or simply leave it unaffected. In the absence of proper grounds justifying a finding that an adjournment will help an appellant to better explain his or her claim, the granting of an adjournment simply for the reason that further, unspecified information might be worth obtaining is a step that the Authority will be slow to take.
We accept that it may well happen that information that is helpful to an appellant will come to light after the appellant’s hearing. That, at the end of the day, appears to be the core of Mr Hooker’s concern. We do not, however, accept that an appellant would be prejudiced simply because an adjournment is not granted. Such information would fall into two categories. First, there would be information that came to light after the appeal hearing but prior to delivery of the Authority’s decision. Second, there would be information that came to light after delivery of the Authority’s decision.
In the event of the former, that is to say information that came to light after the appeal hearing but prior to delivery of the Authority’s decision, all counsel and representatives who appear before the Authority are well aware that we will happily receive any new information right up to the moment of delivery of the decision itself. We will also receive and take into account any further submissions (on that new information or otherwise) as may be made. In appropriate circumstances we will reconvene to hear further oral evidence and/or submissions. If the new information reflects adversely on any information provided by the appellant at his earlier hearing then full account will be taken of the fact that the new information was not available to the appellant at that earlier time. In short, there will be no prejudice to the appellant whatsoever.
In the second situation, where information is received after the date of the decision, the appellant has the right to lodge a second refugee claim, pursuant to Clause 3 of the Terms of Reference of the Refugee Status Branch. There is a right of second appeal to the Authority, pursuant to clause 5(1)(f) of the Terms of Reference of the Authority. The appellant will of course need to establish that there has been a change in circumstances such that the new claim is based on significantly different grounds. Even that will not prejudice appellants with new, genuinely relevant, information. The Authority has made it clear in its decision in Refugee Appeal No. 2245/94 Re HB (21 September 1994) that this aspect of jurisdiction is not to be applied semantically or rigidly. To the contrary, it is to be applied in a pragmatic and realistic sense, taking into account the whole of the appellant’s circumstances, to determine whether he or she now meets the definition of a refugee.
Finally, where there is some advance notice of the likelihood of new information coming to hand it should be a simple matter for appellants or their representatives to advise the Authority of this at the conclusion of the appeal hearing. So long as a realistic amount of time is allowed (and that will depend upon the circumstances) the Authority will always be willing to defer delivery of its decision until that information is to hand and can be taken into account.
2. The question of the right to notice, in advance of the appeal hearing, of relevant information
Mr Hooker and Mr Monk appeared before the Authority as counsel for the appellant in Refugee Appeal No. 523/92 Re RS in a four-day hearing in August and September 1994. Evidence was given in that case in an effort to show that that particular appellant faced a real chance of persecution at the hands of Punjabi militants. For the reasons given at pp 68-82 of that decision, the evidence was found not to justify that conclusion.
At the adjournment application of the present appeal, Mr Hooker made the submission that there is an obligation on the Authority to put to the appellant, in advance of the appeal hearing, any finding of fact arising from the decision in Refugee Appeal No. 523/92 Re RS (17 March 1995) upon which the Authority intends to rely in determining the present appeal.
We do not agree. The decision of Smellie J in Santokh Singh imposes no such obligation. What Smellie J held at 12-18 was that a tribunal cannot take into account, when reaching its decision, any fact which has not been brought to the attention of the parties. Any material fact must be disclosed and an opportunity accorded to comment on the correctness of the fact or its relevance to the particular case. The judgment does not hold the disclosure must, of necessity, precede the hearing. The judgment is not authority for the proposition that the Authority must, in advance of hearing the evidence, bring to bear prophetic powers in order to divine the facts it will ultimately take into account in reaching its decision and thereupon embark upon the disclosure process. The Authority cannot be expected to know in advance of a hearing what information, if any, will be relevant. Once the hearing has been embarked upon and relevance has been determined, the disclosure process can meaningfully begin.
The appellant’s submission also overlooks the fact that it is the appellant who carries the burden of proof of establishing a claim to refugee status. In Refugee Appeal No. 523/92 Re RS (17 March 1995) the Authority held, at 17:“A person who claims the right to be recognised as a refugee under the Refugee Convention must necessarily be aware of the circumstances which justify the assertion that he or she holds a well-founded fear of persecution for one of the five Convention reasons. By making a claim to refugee status, that person must shoulder the obligation of establishing the claim as the facts on which it is based lie peculiarly within the knowledge of the claimant.This is a basic proposition which would ordinarily require no articulation given that a person in fear of persecution would be expected to make every effort to establish his or her claim.”Where a claim is based upon a fear of persecution at the hands of non-state agents (such as, for example, Punjabi militants) the claimant’s burden of proof necessarily includes the obligation of providing clear and convincing confirmation that his or her state is unable to protect the claimant. This is for two reasons. First, experience shows that non-state agents of persecution are often highly regionalised in terms of their operation. As a result, there is a need to explore whether there are safe regions within a claimant’s country to which he or she might reasonably be expected to relocate.
Second, the inclusion of this obligation is a natural consequence of the general principle that underlies the Refugee Convention, namely that the protection afforded by the Convention is of a surrogate nature and does not come into play until there is an absence of protection from the claimant’s own state. This approach was recently adopted by the Supreme Court of Canada in Canada (Attorney-General) v Ward  2 SCR 689 and by this Authority in its decision in Refugee Appeal No. 523/92 Re RS (17 March 1995) where it was held, at 37 (citing Ward):“.. the Court [in Ward] placed an onus on the claimant to provide clear and convincing confirmation of state’s inability to protect. If this cannot be done, the claim should fail: 724- 725:It was also recognised in Refugee Appeal No. 523/92 Re RS (17 March 1995) at 40-41, that if the question of relocation is to be raised and a claimant required to show clear and convincing confirmation of his or her state’s inability to protect, then fairness dictates that the Authority should ensure that the appellant is not taken by surprise by the issue. The Authority has a duty to ensure he or she has notice of the issue. This, of course, accords with Santokh Singh.“... clear and convincing confirmation of a state’s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialise. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognised in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.”We see no reason why this statement of principle should not also apply in the New Zealand context.”
However, the duty to ensure that appellants have such notice is not to be construed unrealistically. As the Authority pointed out in Refugee Appeal No. 523/92 Re RS (17 March 1995) at 41:“... the [Authority’s] obligation must be tempered with common sense. There are certain categories of cases where it is self-evidence that relocation is an issue either because of the nature of the case (particularly if it involves a non-state agent of persecution) or because of the country of origin (in India’s case, claimants from the Punjab) or both. Thus, over the past three and a half years the Authority has heard approximately 400 cases involving claimants from the Punjab which also involved a non-state agent of persecution. Our jurisprudence in this area is both detailed and extensive.... The position has been reached where it can be said that it is inevitable that a non-state agent case from the Punjab will raise the relocation issue. This is recognised in the way the vast majority of cases are presented and relocation is addressed as part of the appellant’s case. To suggest that in Punjab cases a claimant is entitled to sit back until the Authority raises the issue would be to reduce the rules of fairness to little more than a game in which technocratic justice is pursued for ulterior motives. We would expect that in the vast majority of cases, as happens now, that the relocation issue will be addressed without the Authority having to take the initiative to raise it. If in a particular case an appellant is genuinely caught by surprise, the Authority will look sympathetically at an application for further time to present evidence and in decision submissions directed to the issue”.We return to the present appeal and the application for an adjournment. It can be seen that the submission that the appellant is entitled to have put to him, in advance of the hearing of his appeal, all findings of fact in Refugee Appeal No. 523/92 Re RS (17 March 1995) upon which the Authority intends to rely is not supported by authority, least of all by the only case cited by Mr Hooker, namely Santokh Singh. In any event, the nature of the claim and the appellant’s background are such that the issue is one of which he can reasonably be expected to have notice already. Certainly, it was not part of Mr Hooker’s submission that he did not.
Further, there is a degree of artificiality to Mr Hooker’s submissions. As counsel in Refugee Appeal No. 523/92 Re RS (17 March 1995) he is in possession of both the evidence adduced in that case and also the Authority’s decision. An entire chapter of that decision at pp 68-88 is dedicated to an assessment of the evidence relating to the relocation issue. Santokh Singh involved disclosure of a previously unknown case. By contrast, Mr Hooker’s firm has acted for the appellant for over two and a half years. They have had a copy of the decision in Refugee Appeal No. 523/92 Re RS (17 March 1995) for over six months. We reject any suggestion that either they or the appellant are taken by surprise.
In summary, the onus is on an appellant to prove his claim to refugee status. Once he has presented his case there will be a duty on the Authority to make known to him any adverse information in the light of the evidence given which the Authority might possibly take into account and, in keeping with the decision of the High Court in Santokh Singh, the appellant will be given reasonable time to analyse and meet that information.
Before leaving this issue, we need to address a further point made by Mr Hooker. In the Vallant Hooker & Partners letter of 22 September 1995, written after the hearing of the appellant’s application for an adjournment and received by the Authority on 25 September 1995, Mr Hooker expands his original submission. He submits that the Authority is also obliged to disclose to the appellant, in advance of his hearing, any further findings of fact “about the level of activity of the terrorists in the State of Punjab, and in the greater area of India” that have been made decisions delivered by the Authority subsequent to the decision in Refugee Appeal No. 523/92 Re RS (17 March 1993).
For the reasons already given, we reject this submission. Until we have the appellant’s full evidence before us, we simply do not know what will or will not be relevant.
3. The State of Preparedness of Counsel
The Authority has a duty to ensure that an appellant’s appeal is heared as soon as time and resources permit.
The Authority also has a duty to protect the integrity of the refugee determination procedures by preventing the system being abused. Such abuse is minimised by the granting of adjournments only in cases where there are sound reasons for so doing. At present there are 394 appeals waiting to be heard by the Authority. Many of those appellants have been waiting for a hearing for over a year. Further delays caused by unnecessary adjournments will only aggravate the problem.
We have weighed these considerations against Mr Hooker’s advice that he is not ready to proceed. On balance, we have decided that the interests of the appellant are best served by the granting of an adjournment. It was clear from Mr Hooker’s lack of knowledge of the fact that his client’s case now incorporates a fear of state persecution (see the appellant’s affidavit of 11 February 1994, clause 2B(3)), that the appellant would be prejudiced if the hearing were to proceed. Thus, after five attempts by the Authority since May 1995 to set this matter down for hearing and the effluxion of five years since the appellant’s application for refugee status was first filed, the appellant’s case cannot be heard. Be that as it may, the fact remains that the appellant’s counsel is not ready to proceed.
THE AVAILABILITY OF PREVIOUS DECISIONS OF THE AUTHORITY
It remains only to mention two ancillary matters. The first is the question of the availability of previous decisions of the Authority.
In Santokh Singh, Smellie J took into account, when considering whether the appellant in that case had been taken by surprise, the fact that previous decisions of the Authority were not available to the public. It might be helpful to record that this situation no longer prevails. All decisions of the Authority are now available at both the Auckland District Law Society Library and at the Davis Law Library at the University of Auckland. The Davis Law Library also holds a comprehensive, up to date computerised database which allows all the Authority’s decisions to be accessed and researched.
It is also the case that all country information held by the Authority is, and always has been, freely available to appellants and their counsel. All counsel practising in the field of refugee law are aware of this. The availability of our decisions and country information, and the Authority’s aim to provide the maximum assistance to appellants was again outlined in a recent lunch-time seminar in August 1995 for practitioners representing appellants before the Authority, to which the present appellant’s solicitors were invited.
THE DUTY OF COUNSEL TO THE AUTHORITYThe second ancillary matter is that during the course of the hearing of the appellant’s application for an adjournment, the Authority drew to Mr Hooker’s attention the lateness of the Authority’s receipt of notice of the adjournment application (received the preceding day). It was pointed out to Mr Hooker by the Authority that other appellants had been deprived of the opportunity of being substituted in place of his client and that the Authority’s efficiency was hampered in such circumstances.
Mr Hooker expressed the view that his duty is to act in the best interests of his client only and that he has no interest in whether or not other appellants are inconvenienced.
Mr Hooker’s stance overlooks his duty to the Authority. Rule 8.01 of the Rules of Professional Conduct for Barristers and Solicitors (2nd edition) provides:“In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.”The Authority’s ability to administer justice is compromised if counsel, without good reason, fails to give notice of an adjournment application in time for alternative fixtures to be arranged. In the present case, no explanation was given as to why the Authority did not receive notice of the adjournment application until the last minute.
CONCLUSIONFor the reasons stated, and as advised to counsel at the conclusion of the hearing, the application for an adjournment of the appellant’s appeal is granted.
The appellant and his counsel must understand that no further adjournments will be granted for the reason that either of them is not ready to proceed.
The Secretariat is to confer with counsel for the appellant to arrange a fresh date for the hearing of this appeal which should then be confirmed in writing by counsel as a firm fixture, so that there is no further room for misunderstanding or confusion. The Secretariat is to bear in mind the availability of counsel as advised in Vallant Hooker & Partners letter of 22 September 1995.
“A R Mackey”
(1)For the full text of this decision, which concerned, inter alia, the question of relocation for a Punjabi Sikh with a claimed fear of a non-state agent, see Refugee Appeal No. 523/92 Re RS (17 March 1995)