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MIGRATION - Application for adjournment.

VSAJ v Minister for Immigration (No.2) [2004] FMCA 570 (1 September 2004)

VSAJ v Minister for Immigration (No.2) [2004] FMCA 570 (1 September 2004)
Last Updated: 19 November 2004


[2004] FMCA 570

MIGRATION - Application for adjournment.

Judiciary Act 1908




File No:

MLG 1046 of 2003

Delivered on:

1 September 2004

Delivered at:


Hearing Date:

1 September 2004

Judgment of:

Phipps FM


Counsel for the Applicant:

Mr J. Belbruno

Solicitors for the Applicant:

Joseph Belbruno

Counsel for the Respondent:

Mr Heerey

Solicitors for the Respondent:

Blake Dawson & Waldron


(1) That the application for adjournment is refused.




MLG 1046 of 2003







1. This is an application for an adjournment of an application pursuant to s.39B of the Judiciary Act 1908 for relief by way of prerogative writ against a decision of the Refugee Review Tribunal made on 30 June 2003. Mr Belbruno, who appears for the applicant, makes the application for adjournment on the basis that he received a transcript of the first day of the hearing before the tribunal on Monday and has not yet had time to read it. He submits that in the context of this case, the transcript may be significant.

2. The applicant is a citizen of India who arrived in Australia on 13 August 2001. At that stage, he held a visitor's visa and gave as his reason for coming to the country as a honeymoon. He applied for a protection visa on 25 September 2001. A refusal of grant was made by a delegate of the respondent on 14 February 2002. On 5 March 2002, the applicant applied for review of that decision. The tribunal heard evidence from the applicant on two occasions: on 10 October 2002 and then again on 12 June 2003. It appears from the tribunal's reasons that there was a point at which the tribunal member considered the applicant seemed to be having difficulty understanding him and adjourned it to obtain a Hindi interpreter. The hearing resumed on 12 June 2003.

3. Following the tribunal's decision affirming the decision of the respondent's delegate not to grant a protection visa on 30 June 2003, the applicant lodged an application in the Federal Court on 19 August 2003 which was then transferred to this court. The application contained proforma allegations of jurisdictional error and set out no grounds. Directions were first given by a registrar on 15 October 2003 for the filing of an amended statement of claim and contentions of fact and law. There were further directions in December to the same effect and then an order in this court on 8 April 2004 which was made by consent extending the time for the applicant to file contentions of fact and law to 28 May 2004. That time limit was not met. The applicant had been unrepresented. On 17 June 2004, Mr Belbruno filed a notice of appearance on behalf of the applicant having just been retained and then filed contentions of fact and law on 11 August, which is two weeks ago. It is in that context that the application for an adjournment is made.

4. The applicant is a 31-year-old Ismaili Muslim from Bombay in Maharashtra. He claimed to fear being persecuted by Hindus because of his adherence to the Muslim faith. He gave evidence of joining the Muslim League in 1996. He said he was appointed a senior member of his branch in 1998. He then gave evidence of being present at the Muslim League office when Hindus attacked him and other Muslims. He said he was injured and was in hospital for 25 days. He said after release from hospital he was taken to a police station and threatened with torture. He said he was released because his parents paid a bribe. Two months later he said he was arrested again. He said that again a bribe was paid and that he fled to Bangalore but the police kept pursuing him.

5. He said that the chief inspector of the crime branch of the New Delhi branch of the Indian intelligence service then arrested him. He said a bribe was paid again and the chief inspector told him it was the last time he would help him and that he had to leave India as soon as possible. He went to stay with a friend, moved perhaps once or twice and then came to Australia.

6. The tribunal's reasons for rejecting the applicant's claim is that it did not believe him. It found that he was an untruthful witness and gave some details of why it found that to be the case. Mr Belbruno submits that these are serious claims that the applicant has made, that the tribunal's reasons are brief, that its reference to country information is very brief and it uses country information in coming to its conclusion. In those circumstances the transcript may well be relevant.

7. No affidavit has been filed explaining why the transcript had been obtained so late. It may be that there were cost constraints on the applicant, but there is no material before the court to that effect. There is no affidavit material explaining why it is only today that notice has been given of an application for adjournment. No explanation is given why it was not raised at an earlier stage that the applicant may wish to rely upon the transcript in its application for a prerogative writ in the courts. No particular error which might constitute a jurisdictional error is suggested other than in a general way. The applicant has not raised any allegation of breach of the rules of natural justice, although Mr Belbruno, in response to a question from me, said that might be something that might be raised once the transcript had been looked at.

8. But the overall circumstances of the case do not, at the moment, show where there could have been a breach of natural justice. The tribunal, when it got to a point where it thought the applicant was having some difficulty understanding it, adjourned to enable a Hindi interpreter to be retained. I note the transcript is only of the hearing in October 2002 and not the later hearing in July.

9. Again, in a response to something I put to Mr Belbruno, he said there might be a submission that there had been such an error in the fact-finding process as to affect the factual decision made by the tribunal in determining whether it was satisfied or not satisfied that the visa should be granted. That being a jurisdictional fact, that may require examination. But how there might have been such error is not suggested.

10. In the circumstances where the application to the courts was filed over 12 months ago, and relevance of the transcript has not been raised until this morning, no explanation has been given as to why it has not been raised until this morning and nothing other than general submissions put as to how the transcript might be relevant, I do not think, in the exercise of my discretion, that I should adjourn this application. I also note that the transcript has been available since Monday. It is not a particularly long transcript. It is 64 pages although it is, as I have said, only for the one day. In the circumstances, I refuse the application for adjournment.

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

Associate: Sherryn Kwong

Date: 19th October 2004
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