David Jaswant Singh v Minister for Immigration and Multicultural Affairs

[1998] FCA 1756

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	412 of 1998

BETWEEN:	DAVID JASWANT SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	TAMBERLIN J
DATE:	15 October 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter, an application for an adjournment has been made by Mr Singh.  This application is based on two grounds.  The first is that Mr Singh has not received any affidavit from the Australian Government Solicitor in relation to this case.  There is no dispute that he has a postal address, which is currently suite 314, 353 King Street, Newtown, in the state of New South Wales.  He has checked the postal box as recently as Monday of this week but has not received any documents in relation to the hearing. 

However, it is common ground that in late May 1998, he was furnished with a copy of the decision of the Refugee Review Tribunal (“the RRT”) together with a copy of the file of the RRT and that he has had this in his possession since that date.  I also note that the matter was fixed for hearing over four months ago, on 28 May 1998. There has, therefore, been ample opportunity for Mr Singh to pursue inquiries, to obtain any further material he wishes and to seek legal representation.

I note that on 11 August 1998, the Department of Immigration and Multicultural Affairs wrote to Mr Singh informing him that if he wanted access to the Departmental file under the Freedom of Information Act 1982 (Cth) (“the FOI Act”) he should file a proper request and make a payment in relation to the processing of that request. He informs me and I accept that the application was made on 6 September 1998. No attempt was made, apparently, to pursue this application in order to expedite the furnishing of the documentation. He informs me and I accept that he has not received any communication from the Department in relation to his application under the FOI Act.

In all the circumstances, I am satisfied that Mr Singh has had ample opportunity to prepare for this hearing.  I am informed that the only document which is proposed to be referred to in the hearing by the respondent is the decision of the RRT.  I also note that in the grounds of appeal, the basis stated for the appeal is that procedures were not followed as required by the Act. Reliance is placed on s 420 of the Act.

The other matter which is raised in the notice of appeal is that the decision involved an error of law, being an incorrect interpretation of the law or an incorrect application of law to the facts.  It is said that the RRT misconstrued the meaning of “persecution” and its application to the assaults and threats that took place because of the applicant's relationship with a lady of Fijian ethnicity.  It is further said that the RRT failed to make findings in respect of whether the applicant was a member of a particular social group.

Having regard to the fact that these are the bases of appeal and that the applicant has had access since May to the RRT file and has also had access to the reasons and decision of the RRT, I am not sufficiently satisfied that any case has been made out for an adjournment of the proceedings and accordingly the proceedings will continue. 

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             15 October 1998

For the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 1998
Date of Judgment:	15 October 1998