O’Donoghue v Minister for Immigration and Anor (No.2)

[2010] FMCA 463

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O’DONOGHUE v MINISTER FOR IMMIGRATION & ANOR (No.2) [2010] FMCA 463

PRACTICE & PROCEDURE – Application for adjournment of interim application.

Freedom of Information Act 1989, ss.33(d), 37(2)(b)
Migration Act 1958, s.375

Applicant: VINCENT THOMAS O’DONOGHUE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 3 of 2010

Judgment of: Raphael FM

Hearing date: 23 June 2010

Date of Last Submission: 23 June 2010

Delivered at: Sydney via videolink to Perth

Delivered on: 23 June 2010

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application for adjournment of the directions hearing dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PEG 3 of 2010

VINCENT THOMAS O’DONOGHUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 21 May 2010 Lucev FM handed down judgment in respect of an application that had been made and heard on 19 March 2010 for orders in respect of a substantive application for a review of a decision of the Migration Review Tribunal that had been made on 21 September 2009.  One of the orders sought by the applicant was that the matter be adjourned.  In respect of that application Lucev FM said, after considering the principles upon which an adjournment should be applied and considering Mr O’Donoghue’s argument that the matter ought to be adjourned pending the provision of documents which he has requested from the Department and the Tribunal by a request under the Freedom of Information Act 1989, that as Mr O’Donoghue has received all the documents requested by him, except those that are subject to a certificate under s.375A of the Migration Act 1958 (the “Act”), and those exempted under the provisions of ss.33(d) and 37(2)(b) of the Freedom of Information Act there was no basis to adjourn the application because Mr O’Donoghue had been provided with all relevantly disclosable documents.

2. Lucev FM also considered other grounds put forward by Mr O’Donoghue for an adjournment.  One related to a special leave application before the High Court in relation to certain extradition proceedings which were affecting him, some arguments relating to the place of birth of his children and the submissions that he had made concerning the manner in which the Tribunal came to its decision including a suggestion of bias.  Having taken all those matters into account, Lucev FM came to the view that he could not support an application for an adjournment.  He did give some orders sought by Mr O’Donoghue, those were that the interim application to amend the substantive application with respect to alleged bias and estoppel arising from alleged undertakings be allowed.  He gave leave for the applicant to file a further amended application by 21 June and for the respondents to file an amended response by 5 July. 

3. The matter was also transferred into my docket and adjourned for me to fix a directions hearing.  That directions hearing was fixed before Registrar Segal and the learned Registrar made orders which included the filing of further affidavits by the applicant on or before 21 June and the filing of a response by the respondent by 23 June.  The matter is set down for hearing on 5 July at 10.15 in Perth.

4. Mr O’Donoghue filed an application on 18 June seeking a review of the decision of Registrar Segal.  Effectively he wished the Registrar’s orders to be vacated so that the hearing date could be adjourned.  The court received that application on or about 18 June and immediately made arrangements for it to be heard today.  Mr O’Donoghue tells the court that he was not informed of the hearing until 5.00pm last night.  And has only just been made aware of the reason why he is in court today.  He tells the court that it is unreasonable for him to have to make a case for an adjournment today and seeks an adjournment of this directions hearing.  He does not give me a date upon which he thinks he will be ready but he says that the matter has been proceeding for a number of years and he sees no reason why it needs to be rushed at this stage. 

5. The application for an adjournment of the directions hearing is opposed by Mr Corbould on behalf of the respondent.  He says that Mr O’Donoghue filed the application, he should be able to speak to it.  He must have known when he filed the application why he wanted the orders that he sought.  This is a view which I endorse. Mr O’Donoghue is not any ordinary migrant seeking review of a decision of the Migration Review Tribunal, he is a solicitor of the Irish High Court.  He came to Australia for the purposes of taking up legal work within this country.  He would be well aware of the necessity of knowing why an application is being made and I do not think that even if the situation is as he said, and I have no reason to believe it is not, that he was not informed of the hearing until yesterday, he should not be able to put his points to me today as to why he seeks an adjournment of the substantive hearing that has been set down specially on 5 July.  The application for an adjournment of this interim application is refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1.7.10