Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1313

FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1313 CITIZENSHIP AND MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal ("RRT") affirming decision of delegate refusing grant – application for adjournment of hearing of application to enable applicant to obtain further evidence Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth) ss 420, 476 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 73 ALJR 746 cited

NIZAM UDDIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 591 OF 2000 EMMETT J 4 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 OF 2000

BETWEEN: NIZAM UDDIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 4 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. There be a stay of orders 1 and 2 above up to an including 6 October 2000. 4. The applicant, if he wishes to apply to set aside orders 1 and 2 above and to adduce additional evidence, file and serve no later than 2 October 2000 a notice of motion made returnable before Emmett J on 6 October 2000 seeking such orders together with an affidavit setting out all of the evidence upon which he intends to rely. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 OF 2000

BETWEEN: NIZAM UDDIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 4 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh and arrived in Australia on 8 November 1996. He applied to the Department of Immigration & Multicultural Affairs ("the Department") for a protection visa on 31 December 1997. A delegate of the Minister refused the visa and the Refugee Review Tribunal ("the Tribunal"), differently constituted from the Tribunal from which this appeal is brought, affirmed the delegate's decision on 1 April 1999. The applicant sought review of the Tribunal's decision by the Federal Court and on 4 August 1999 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 27 April 2000 the Tribunal again confirmed the decision not to grant a protection visa. The applicant has now brought a further application to this Court. 2 When the matter came before me on 21 July 2000, I directed the applicant to file and serve any amended application, and any evidence on which he proposed to rely, on or before 4 August 2000. I listed the matter for hearing at 10.15 a.m. on 4 September 2000 and gave directions for the filing of submissions. I also reserved liberty to apply on three days' notice. On 21 July 2000, Mr Rashid Raashed, a migration agent who is not a legal practitioner, appeared for the applicant, with the leave of the Court. Mr Raashed said that further evidence was being sought from the Department concerning a matter that had been the subject of evidence before the Tribunal. I indicated that if the evidence was available on the day appointed for the hearing, it could then be tendered on behalf of the applicant. If for some reason the evidence was not available then an application could be made for an adjournment if need be. 3 The matter concerns the question of whether the applicant travelled to Greece in August 1996. In its reasons for decision the Tribunal made the following observation: "Of critical importance to this case is whether the applicant had to travel to Greece or not. This issue goes to both the credibility of the applicant as well as affecting whether some of the key incidents of his claim are possible." 4 When the matter came on for hearing today Mr Raashed again appeared for the applicant, without opposition from the Minister and with the leave of the Court. An interpreter was available in Court but, having regard to the presence of Mr Raashed, the services of the interpreter were not required. Mr Raashed applied for an adjournment of the hearing. The application was opposed. 5 The basis for the application was that the applicant had not yet been able to obtain the evidence to which Mr Raashed referred. The evidence consists of the original application made to the Australian Embassy in Athens for a visa issued in the applicant's name on 27 August 1996. The applicant seeks to rely on the document to establish that it was not made by him at all. 6 In opposing the application for an adjournment, the Minister relied on communications with the applicant under the Freedom of Information Act 1982 (Cth). On 6 July 2000 the Department wrote to the applicant referring to a freedom of information request made by the applicant and saying as follows: "The application is refused under section 24A(b)(i) of the Freedom of Information Act 1982 which states that an agency or Minister may refuse a request for access to a document if all reasonable steps have been taken to find the document; and the agency or Minister is satisfied that the document: