VQAO v Minister for Immigration (No.1)

[2004] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VQAO v MINISTER FOR IMMIGRATION (No.1) [2004] FMCA 554

MIGRATION – Adjournment application refused.

PRACTICE AND PROCEDURE – Adjournment – delay – no satisfactory explanation – no arguable case – application refused.

Applicant: VQAO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 828 of 2003

Delivered on: 5 August 2004

Delivered at: Melbourne

Hearing Date: 5 August 2004

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr W.G. Gilbert

Solicitors for the Respondent: Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 828 of 2003

VQAO

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant seeks to review a decision of the Refugee Review Tribunal made on 23 May 2003.  The applicant by an application initially filed in the Federal Court of Australia on 4 July 2003 sets out the grounds of the application and in particular asserts that there is an error of law involving an incorrect application of the law to the facts as found by the tribunal and gives particulars as follows:

   a)The Tribunal misapplied the law relating to the definition of refugees for the purpose of the Act, including by failing to apply the law to the totality of the Applicant's circumstances;

   b)The Tribunal failed to give genuine and realistic consideration to the claims of the applicant that his involvements as an active member of the United National Party and he worked for the ‘Anti‑Dug Society’ and the threat made to him;

   c)The Tribunal failed to speculate about the possibility of the applicant being further harassed and persecuted upon his return to Sri Lanka.

2. Other grounds set out in the application assert that the decision involved an error of law involving an incorrect interpretation of the applicable law, and the particulars of that allegation are said to be that the tribunal misinterpreted the law relating to the definition of refugees for the purposes of the Act.  It is further claimed in the application that there is no evidence or other material to justify the making of the decision and the particulars in support of that ground referred to the assertion that the tribunal relied upon materials relating to the situation in Sri Lanka generally.  The other ground, which is ground 4 in the application, asserts the decision was not authorised by the Act and the particulars of that ground are that the applicant simply refers to and repeats the particulars to which I have made reference in relation to grounds 1 to 3.

3. When the matter came before the court this day the applicant sought an adjournment.  The application for adjournment has been opposed.  The basis upon which the applicant seeks an adjournment is to endeavour to obtain some legal assistance.  He has told the court from the bar table that approximately six weeks ago he contacted an organisation called Asylum Seekers Association who had agreed to offer him some assistance in redrafting the application and/or, as I understand it, perhaps to assist him in drafting submissions.

4. In opposing the application, reference by the respondent has been quite properly made to the chronology of events, which briefly involve a transfer of this application by order of the Federal Court on 28 July 2003, a hearing before a registrar of this court on 15 October 2003 when the matter was fixed for hearing this day, that is, approximately 10 months later, and at the same time orders were made whereby the applicant was to file and serve a supplementary book of documents by 30 January 2004, an amended application by the same date together with proper particulars of grounds relied upon, and contentions of fact and law by 13 February 2004 with consequential orders that the respondent likewise file and serve contentions of fact and law on or before 27 February 2004.  It is clear that on 15 October 2003 appropriate directions were made for the proper hearing of this matter this day, which, as I have indicated, is some 10 months after that particular hearing.  Pursuant to those orders made by the registrar, the respondent has ultimately filed contentions of fact and law on 6 May 2004 and although those contentions have been filed later than scheduled, it is clear that in the absence of the applicant's contentions of fact and law it would have been imprudent for those to be filed much earlier.

5. I am told by the respondent's counsel from the bar table that there was correspondence passing between the respondent's solicitors and the applicant as far back as 4 March 2004 and in that correspondence the applicant was alerted to the fact that he had not complied with the requirement to file and serve the amended application or his facts and contentions.  There has been no contact made by the applicant with the court or the respondent until the matter was called on for hearing this day. Nor was notice given of any intention to apply for an adjournment and nor, as I understand it, has there been any attempt made by the Asylum Seekers Association to contact the court or the respondent.

6. In matters of this kind it is argued for and on behalf of the respondent that the chronology should be taken into account and the court is entitled to consider whether or not there is an arguable application before the court.  Those matters together are to be taken into account in the exercise of the court's discretion which it undoubtedly has in relation to an application for an adjournment.

7. Normally where an applicant is unrepresented this court makes due allowance for that fact and is prepared to at least endeavour to accommodate the applicant as best the court can in terms of providing further time.  That is more likely to occur where there is some firm evidence before the court setting out the history of events since the matter was set down for hearing.  In the present case the information before the court  from the applicant is less than satisfactory in the sense that it was only six weeks ago that a further attempt was made to obtain the assistance of the Asylum Seekers Association.  I note for the sake of completeness that according to the court file and the registrar's reported listing that as at 15 October 2003 the applicant appeared to be assisted by a representative though legal aid was then refused.  A pro bono request apparently was to be made, although the outcome of that request is not clear.

8. On a proper reading of the material for the purposes of an application for an adjournment, it is not appropriate that I should make any final determination of the prospects of success or otherwise of this matter but it is appropriate that I at least endeavour to assess whether or not prima facie there is an arguable case.  It seems to me in relation to the grounds currently referred to in the application that at best the application could be described as one which is not particularly strong and indeed not what I would describe as an arguable case, though there may be points to be raised by the applicant in the course of the hearing which perhaps might elaborate upon the matters sought to be relied upon and to the extent that I am able I would grant the applicant an indulgence to perhaps raise matters that are not strictly found to be within the grounds or particulars set out in the application.  Even, however, making that allowance in circumstances of this application having regard to the reasons, my view is at this stage that this is not a particularly strong case.  That is one factor I am allowed to take into account in the exercise of my discretion.

9. It is important to note that all litigants should have the opportunity to properly present and prepare their case and all litigants should have an adequate opportunity to seek if they choose to do so appropriate legal assistance in the preparation and presentation of the case.  I am mindful of that fundamental proposition but in this case the chronology of events quite clearly establishes that there has been ample time and opportunity for the applicant to seek and obtain appropriate assistance.  A period of some 10 months has elapsed since the application came before the registrar for directions.  Indeed it is now over 12 months since the matter was transferred by the Federal Court to this court and it is noted that it is over 12 months since the application was made to the court.

10. In the circumstances, having regard to the delay, the unsatisfactory nature of the explanation as to the inactivity of the applicant between the hearing before the registrar in October 2003 and the date of this hearing, together with the assessment I have made of the strength of the case, in the exercise of my discretion the application for the adjournment is refused.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  5 August 2004