Talukder v Minister for Immigration

[2020] FCCA 2115

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALUKDER v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2115

Catchwords:
PRACTICE AND PROCEDURE – Application in a case seeking an adjournment of proceedings – where adjournment previously granted – where applicant had ample time to put on new submissions – where grounds did not identify a proper case that warrants a further adjournment – where it was not in the interest of the administration of justice to further adjourn the proceedings – application in a case dismissed.  

Legislation:

Migration Act 1958 (Cth), s. 376

Applicant: BABUL MIAH TALUKDER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2117 of 2019

Judgment of: Judge Street

Hearing date: 31 July 2020

Date of Last Submission: 31 July 2020

Delivered at: Sydney

Delivered on: 31 July 2020

REPRESENTATION

Counsel for the Applicant: Mr L Bocabella, via Microsoft Teams

Solicitors for the Applicant: Hunt Lawyers

Solicitors for the Respondents: Ms G Ng, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application in a case filed on 22 July 2020 is dismissed.

DATE OF ORDER: 31 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2019

BABUL MIAH TALUKDER

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 16 August 2019, and are ones in respect of which the applicant is seeking a Constitutional writ, in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 July 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (Class UK) visa. 

2. The proceedings were the subject of orders made by a Registrar on 12 September 2019, fixing the matter for hearing on 27 July 2020, as well as making a number of orders, providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed in accordance with the orders made by the Registrar. 

3. On 20 July 2020, this Court made orders for the hearing to proceed by way of Microsoft Teams and audio link. The applicant belatedly instructed solicitors who filed a notice of appearance on 22 July 2020, and filed an application in a case on 22 July 2020, seeking an adjournment. Affidavit evidence was read in support of the same, as well as the hearing of the court book and the other affidavit of the applicant on the Court file.

4. The applicant’s affidavit evidence was entirely unsatisfactory in relation to explaining why an adjournment should be granted. The applicant was not represented by a legal practitioner, and the applicant’s assertions in relation to reliance upon a solicitor do not identify the taking of any of the steps that were referred to by the solicitor. 

5. Nonetheless, in the circumstances, where it was apparent that there was a lawyer being appointed, and where it was identified that there was a copy of a USB stick with a transcript that had been forwarded to the applicant’s representatives, the Court adjourned the application in a case for hearing today, as well as making an order fixing the matter for hearing today. 

6. Mr Bocabella, counsel on behalf of the applicant, has sought leave to file an amended application, which has been granted. That application identifies what are said to be five new grounds. Mr Bocabella confirmed that grounds 1 to 3 on the original application were not pressed. Mr Bocabella has filed submissions in support of the purported grounds.  Mr Bocabella has submitted that he wants an opportunity to put on further submissions. 

7. The Court is satisfied that the applicant has had ample opportunity to put on submissions in relation to the hearing of the matter today. The nature of the grounds are not sufficient in the circumstances of the present case to identify a proper case that warrants a further adjournment, given the history of the proceedings. Further, it is apparent that counsel for the applicant is in a position to argue the grounds contended to give rise to jurisdictional error. The Court has taken into account the weakness of those grounds in determining whether or not it is in the interest of the administration of justice to grant an adjournment.

8. Mr Bocabella relies upon the fact that the Minister neither consents to nor opposes the adjournment, it has taken the neutral position, and contends that there is no prejudice to the Minister. 

9. These are proceedings in relation to the history for which no proper explanation was given by the applicant in relation to the failure to comply with the Courts earlier orders, or any proper, informed description of what it was the applicant did in relation to the proposed strategy identified by the person who was not in fact appearing for him, and why it was the applicant waited until the very eleventh hour before seeking to instruct solicitors. Belated instructions of solicitors are not a proper ground of itself for an adjournment.

10. On the occasion that the matter was before the Court on 27 July 2020, the applicant had made a number of allegations as to the nature of the conduct of the Tribunal hearing. It was in the context of those allegations that the Court was willing to grant a further adjournment, and made orders providing the applicant an opportunity to put on affidavit evidence, an amended application and submissions, which the applicant has done. Those affidavits are ones in relation to which there is a transcript of the hearing that has been annexed. 

11. The Court has read the transcript. The transcript does not support, at all, the assertions of aggressive behaviour by the Tribunal advanced by the applicant in his affidavit, and the transcript is one that addresses the issues in respect of the s 376 certificate under the Migration Act 1958 (Cth).

12. Insofar as the affidavit evidence that has been put on, it is apparent that the applicant is in a position to advance the arguments that the applicant contends to arise on the amended application. 

13. It is not in the interest of the administration of justice to further adjourn these proceedings. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 21 August 2020