FET18 v Minister for Home Affairs

[2019] FCA 1302

FEDERAL COURT OF AUSTRALIA

FET18 v Minister for Home Affairs [2019] FCA 1302

Appeal from:	FET18 v Minister for Home Affairs [2019] FCCA 604
File number:	NSD 403 of 2019
Judge:	COLVIN J
Date of judgment:	15 August 2019
Date of hearing:	15 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	Mr G Foster
Solicitor for the Appellant:	Sentil Solicitor & Barrister
Counsel for the First Respondent:	Mr D Clarke
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 403 of 2019

BETWEEN:

FET18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	15 AUGUST 2019

THE COURT ORDERS THAT:

1.The appellant's application for an adjournment be refused.

2.The first respondent do file and serve its written submissions in opposition to the two substantive grounds raised in the course of oral argument on or before 29 August 2019.

3.The appellant do file and serve submissions in reply on or before 12 September 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. In this matter, the refusal of the appellant's application for a safe haven enterprise visa was affirmed by the Immigration Assessment Authority in a decision made on 10 September 2018.  An application to the Federal Circuit Court for review on the basis of jurisdictional error was unsuccessful, and the appellant now brings an appeal to this Court against that decision.

2. The appellant seeks an adjournment for a number of months, at least until October.  In effect, the adjournment application is raised for the first time today.  The matter has been listed for some time, directions having been made on 23 April 2019 programming the matter for hearing so that it could be undertaken in these sittings of the Full Court.

3. The appellant has recently obtained legal representation.  It appears from the affidavit in support of the adjournment application that his solicitors were retained shortly prior to 11 August 2019.  An adjournment is sought to obtain a recording of the appellant's interview that followed his application for a safe haven enterprise visa.  The adjournment is sought because it is said that the terms of a finding by the Authority were not correct.  Relevantly the Authority's finding was (para 25):

   During the SHEV interview the applicant gave a plausible account of his involvement with the vigilante group, however, he said his involvement with the group was for six or eight months after he returned from Qatar.  He said there were no LTTE members in the group but that the LTTE monitored the group.  I accepted the applicant participated in the group to protect the people and that he was harassed as claimed, however, I do not accept that harassment was the reason he went to Qatar.

4. The claim that was actually made by the appellant was to the effect that it was after his involvement with that group and harassment as a result, that he went to Qatar.  His position on affidavit today is that he did not say in the interview that his involvement with the vigilante group was after he returned from Qatar and the reason for seeking the recording is to determine what the position is in relation to that recording.  It is clear that the recording was before the Authority (as appears from paras 5 and 6 of the Authority's reasons).

5. However, the issue about whether the involvement in the vigilante group occurred before or after the appellant returned from Qatar does not assume any significance in the course of reasons given by the Authority.  In particular I note that ultimately (at para 29), the Authority was prepared to accept that the appellant was harassed, detained and beaten on a number of occasions by Sri Lankan authorities from 2000 until 2008.  Then the finding was made that:

   Given the applicant was never charged with an offence, and he was released after each detention, I consider the treatment described by the applicant resulted from the troubling but routine treatment of Tamils at that time, rather than from any specific security concerns regarding the applicant.

6. In other words, the factual issue that has been identified does not impress as one which went to the jurisdiction of the Authority.  Counsel appearing for the appellant sought time in order to consider whether the issue might be framed in terms that might express a jurisdictional error, though frankly accepting that it was not an error that was of a character which provided the foundation for the ultimate conclusions expressed in the reasons.  In those circumstances I am not satisfied that there is any real purpose that would be served by the adjournment for the purposes of obtaining a copy of the recording of the interview.

7. The appellant has also put on an application to amend the grounds of review and short submissions in support of those grounds.  Those grounds are before me and are the subject of an application for leave which I am yet to consider.  To the extent that that application is also advanced in support of the application for an adjournment, it seems to me that the matters to be considered have been raised.  They are short points of legal argument and there is no reason why an adjournment should be granted in order to advance them.  For those reasons I refuse the application for an adjournment.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:

Dated:       15 August 2019