YI v Minister for Immigration

[2017] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

YI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1235

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

First Applicant: GEUM JU YI

Second Applicant: GAYOUNG YI

Third Applicant: SEUNGYOUNG YI

Fourth Applicant: YUN YI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2725 of 2016

Judgment of: Judge Street

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicants: Ms A Gibbons

Solicitors for the Applicants: Sandhu Lawyers

Solicitors for the Respondents:

Mr K Eskerie

Sparke Helmore

ORDERS

1. The application for an adjournment is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2725 of 2016

GEUM JU YI

First Applicant

GAYOUNG YI

Second Applicant

SEUNGYOUNG YI

Third Applicant

YUN YI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Ms Gibbons of counsel, on behalf of the applicants in an application for a constitutional writ that was filed on 4 October 2016, seeks an adjournment of proceedings in respect of which on 1 June 2017 a notice of an intention to withdraw as lawyer was filed with the Court. Following the withdrawal there has been filed a notice of address for service in respect of a new solicitor and there were filed on two affidavits affirmed on 4 June 2017. There has been handed up to the Court a proposed amended application raising two grounds; 5 and 6. That amended application had in it deleted Ground 1. Counsel for the applicants indicated that she had not seen the amended application that was on the Court file and was given a copy.

2. That amended application repeated the same content of Ground 1, which had been deleted in the version of the amended application handed up by counsel. Counsel for the applicants indicated that she wished to press that Ground 1 in the amended application. From the bar table, Ms Gibbons of counsel said that she had instructions indicating that there may have been an interpretation problem specifically in relation to communications between the sponsor and the interpreter and that that difficulty of understanding was something that had only just come to light and, on that basis, she wished to obtain an adjournment so that she could obtain a transcript and consider whether or not it gives rise to any other basis for challenging the Tribunal’s decision.

3. The adjournment application was neither opposed nor consented to by the first respondent. These proceedings commenced on 4 October 2016 and were the subject of an order made by the Court on 8 February 2017 providing the applicants with an opportunity to file an amended application and affidavit evidence and submissions. The amended application that was filed was in fact filed outside the time identified by the Court and a further affidavit by the applicant was filed on 1 May 2017 prior to the withdrawal of the former solicitors. The applicant’s affidavits that have been filed in the Court do not identify any issue in relation to the interpretation or any problem with the interpreter.

4. The Court is not satisfied that a belated endeavour by the applicants to raise a fresh issue should be permitted at this late stage in respect of proceedings that have been the subject of orders made on 8 February 2017 fixing the matter for hearing. The adverse credibility findings by the Tribunal went well beyond any exchange between the sponsor and the interpreter. It was apparent on the Tribunal’s reasons that there had been adverse credibility findings and there has been ample opportunity since 8 September 2016 for the applicants to raise an issue if there was a genuine issue in respect of the interpreter. I am not satisfied in the circumstances of the present case that an adjournment is warranted in the administration of justice.

5. The application for an adjournment is refused.

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

Date: 18 July 2017