MZXLD v Minister for Immigration

[2007] FMCA 442

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXLD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 442

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Application for adjournment.

Applicant: MZXLD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 874 of 2006

Judgment of: McInnis FM

Date of last submission: 21 March 2006

Delivered at: Melbourne

Delivered on: 21 March 2006

REPRESENTATION

Counsel for the Applicant: Mr Cheung

Solicitors for the Applicant: Sky Legal

Counsel for the First Respondent: Mr A.J. Palmer

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The Applicant be granted leave to file and serve an Amended Application by 5.00pm on 28 March 2007.

2. The Applicant be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 28 March 2007.

3. The First Respondent be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 11 April 2007.

4. Liberty to apply is granted to the parties in relation to any matters arising out of these orders with any Application to be made by 5.00pm on 12 April 2007.

5. Pursuant to s.54 of the Federal Magistrates Act 1999 the Application shall be decided on written submissions without an oral hearing unless otherwise ordered.

6. Costs of the First Respondent be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 874 of 2006

MZXLD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, when the application was called on for hearing this day the legal representative of the Applicant made application for an adjournment.  Reliance was placed upon the affidavit of Noeline Suzette Dominica Perera, sworn 21 March 2007.  It was submitted in reliance upon that affidavit that an adjournment should be granted to permit the Applicant to file and serve an Amended Application and what I take to be substituted Contentions of Fact and Law. 

2. The Applicant seeks to provide an Amended Application in part to particularise what currently appears to be unparticularised grounds of appeal.  Specifically, reference was made to an allegation that there has been apprehended bias on the part of the Tribunal.  In brief terms, it was submitted that it is apparent on the record and on material currently before the Court of apprehended bias to the extent that the Tribunal in this instance has produced a voluminous decision purportedly signed on 24 May 2006 and that it had received on the same day submissions in response to a s.424A letter dated 10 May 2006.  As I understand it, the ground of apprehended bias is to be particularised to reflect those facts and other matters which are sought to be relied upon.

3. It is further evident that the Applicant seeks to otherwise amend the application in an endeavour to adduce evidence in support of contentions critical of the Tribunal's reliance upon a departmental report, which for convenience I will refer to as DFAT information.  It is contended that there are authorities to support the proposition that the Applicant be permitted to rely upon information obtained since the Tribunal decision and since the hearing of this matter by the Tribunal.  During the course of submissions the Court made it clear that it would be unlikely to receive additional country information during the course of judicial review when the Court's task was to consider whether there is indeed a jurisdictional error committed on the part of the Tribunal based upon the material then available before the Tribunal.

4. Further, as a preliminary view, the Court indicated that in making submissions critical of the Tribunal decision, if that criticism was simply criticism based upon what might be alleged to be a wrong finding of fact, or giving weight to country information which the Applicant asserts should not have been given by the Tribunal then the Applicant may have difficulty persuading the Court that there has indeed been jurisdictional error.  Those comments are raised in the context of the affidavit material to which I have referred, namely the affidavit of Ms Perera. 

5. The Court has only expressed a preliminary view and has taken the view that those matters, if they are sought to be pursued, can be the subject of further submissions to be relied upon by the Applicant that the Court is satisfied ought to be given as a matter of procedural fairness an opportunity to amend the application.  The Court can then include in its substantive decision a decision as to whether it will permit the Applicant to rely upon information obtained since the Tribunal decision. 

6. When considering the application for adjournment the Court took into account the fact that this application seeks judicial review of a decision dated 24 May 2006.  The application seeking judicial review was filed on 11 July 2006.  The solicitor on record for the Applicant appears to have been on record from at least August 2006.  On 9 August 2006 a Registrar of this Court made certain orders permitting the parties to file and serve additional material.  Further orders were made by a Registrar of the Court on 14 September 2006.  Amongst those orders was an order that the Applicant file and serve contentions of fact and law on or before 13 October 2006.  The Applicant in fact complied with that order. 

7. It is of significance, however, that the Registrar in the orders made on 14 September 2006 also ordered that the matter be listed for hearing on 21 March 2007.  It is claimed in support of the application for an adjournment that Counsel previously retained in this matter is no longer retained and that the legal representative, Mr Cheung, now acting for and on behalf of the Applicant instructed by the firm Sky Legal has only become involved approximately 10 days ago.

8. In my view, the chronology of the events clearly demonstrate that this Applicant has had ample opportunity, through the legal representatives, to properly prepare the case for hearing this day.  I find it unacceptable that lawyers representing the Applicant should at the last moment seek to adjourn this proceeding further.  However, this Court must consider the interests of the Applicant and the interests of justice, both to the Applicant and to the First Respondent.  In my view, albeit somewhat reluctantly, having regard to the chronology of events, I am prepared to make orders which would at least afford the Applicant the opportunity of filing and serving an Amended Application together with what I would describe as substituted facts and contentions. 

9. I have then indicated that I propose, subject to the parties seeking to persuade the Court otherwise, that the Court will deal with this application and decide this application on the written material as it is entitled, or able, to do.  If either party, however, seeks to persuade the Court to reconvene and conduct a further hearing enabling the parties to make oral submissions then that application will considered arising out of liberty to apply which I propose granting to the parties this day.

10. It should be stressed the Court does not yet have a final view concerning whether it will or will not receive the additional information now sought to be relied upon.  It is appropriate, however, to at least give the Applicant and those advising the Applicant the opportunity to provide written submissions in support of the proposed Amended Application, which no doubt may include written submissions seeking to persuade the Court that in this instance it ought to permit the Applicant to rely upon information obtained after the hearing date.  The Court will then consider that submission along with the First Respondent's submission, and in the absence of a further hearing determine the matter according to law.

11. It follows for the reasons given that the Court is prepared to make the following orders.

    (1)The Applicant be granted leave to file and serve an Amended Application by 5.00pm on 28 March 2007.

    (2)The Applicant be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 28 March 2007.

    (3)The First Respondent be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 11 April 2007.

    (4)Liberty to apply is granted to the parties in relation to any matters arising out of these orders with any Application to be made by 5.00pm on 12 April 2007.

    (5)Pursuant to s.54 of the Federal Magistrates Act 1999 the Application shall be decided on written submissions without an oral hearing unless otherwise ordered.

    (6)Costs of the First Respondent be reserved.

12. I shall direct that the reasons for the decision that I have just given shall be transcribed, and upon review shall constitute my reasons in this matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date: 21 March 2007