QAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 Directions were given in this matter on 26 July last, at which time the matter was listed for hearing today. On 9 September, the solicitors for the applicant sent a fax indicating an intention to seek an adjournment, apparently because the applicant was experiencing financial difficulties. The solicitors for the respondent indicated that the application would be opposed. On 11 September, the solicitors for the applicant indicated that they had ceased to act in the matter. As a result, I directed my associate to draw to the solicitors' attention various provisions in the Rules relating to a solicitor ceasing to act and a party's address for service. 2 Today, counsel has appeared on behalf of the applicant and has again asked for an adjournment, having given notice of his intention to do so by way of notice of motion filed on 13 September. It seems that the applicant is now able to fund counsel and seeks an adjournment on that basis. I must say that if I thought that there was any prospect of the applicant's being able to mount a case which would fall within the Hickman grounds of review as endorsed by the majority of the Full Court in NAAV v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, then I would have been inclined to allow the adjournment, although possibly on terms as to costs. I have made that clear to counsel. I have also indicated to him that if there is any aspect of the Tribunal's reasons which arguably raise a Hickman point, or if there is anything in his instructions as to what happened at the hearing which might lead to a possibly arguable Hickman point, then he should draw it to my attention. If any such point could be identified, I would be inclined to allow the adjournment. Counsel has indicated that his real purpose in seeking an adjournment is to read the transcript of the hearing or perhaps to listen to the recording of it. At a relatively late stage, the applicant has asserted that he has not had access to that recording. The evidence demonstrates that he has been in possession of it since April of this year. In those circumstances, it cannot be said that he and his legal advisers have not had an opportunity to listen to the tape to see if there is anything which may give rise to a ground of review. In any event, I would have thought that if anything about the proceedings had caused the applicant concern, it would have commended itself to him at the time. In that case, he could, at least in broad terms, have explained it to his advisers. Save for matters such as bias or natural justice, any problem with the decision should appear from the reasons. Despite a number of requests to counsel, he has not identified anything which could be identified accurately as an arguable Hickman point. 3 Much of what is said in the application for review and much of what has been said today has involved arguments about factual matters. The applicant claims refugee status as an Indian previously living in Fiji. He claims to have been subjected to acts of discrimination. The Tribunal considered them in some detail. However it acted upon country information which indicated that there was no reason to believe that in the future, Indian Fijians would not be afforded the general protection of the law. Of course this would not be a guarantee against occasional racial harassment. It is difficult to see how such reasoning could give rise to any permissible ground for review. Indeed, it is difficult to see how any reviewable ground could have been raised even under the legislation in its previous form. 4 Apart from arguments concerning the weight to be given to evidence, the other complaints are that the Tribunal did not arrange a telephone interview with Mr Chaudhry, the former Prime Minister of Fiji, presently Leader of the Opposition. Mr Chaudhry provided a statement which was received by the Tribunal. It is not clear that the applicant asked the Tribunal to do any more with respect to him. In any event, there is nothing before me to suggest that he could have advanced the applicant's case any further than did the applicant himself. 5 It is said that the tribunal was biased. I can see no evidence of bias, whether real or apparent, nor any evidence of lack of good faith. Finally, it was suggested that the Tribunal might have asked itself the wrong question. In particular, reference was made to par [102] of the reasons where there is a discussion of the expression "serious harm". The context in which that expression is used does not lead me to conclude that the Tribunal asked itself the wrong question. In any event, that would not be a reviewable ground. See particularly the judgment of von Doussa J in NAAV at pars [636] - [639]. In those circumstances, it is clear that counsel has not identified any arguable Hickman ground for review. 6 An adjournment is sought because it is thought to be possible that something might be discovered in the tapes, but nothing attracted the applicant's attention during the hearing. I say that keeping in mind his lay status. He has had more than adequate opportunity to listen to the tapes as had his previous solicitor. I do not mean to reflect upon counsel who has appeared today. However changing legal advisers does not create an automatic entitlement to an adjournment. There is no reason to believe that the applicant will benefit from an adjournment. Such an adjournment will probably involve more expense for all parties involved and no benefit. Today was identified as the day for hearing. It is inappropriate that resources should be wasted for no good reason. I decline the application for an adjournment. 7 I have already, in dealing with the application for adjournment, addressed the grounds of review identified in the application and my understanding of the reasons for the Tribunal's decision. It follows that the application should be dismissed. I wish only to make two further comments. The first is that the Tribunal, in exercising its powers, ought be careful to give appropriate weight to evidence of specific complaints made by applicants. It is, I think, easy to adopt the view that country information, as it is called, must be universally accurate and applicable across the whole range of circumstances likely to be experienced in a particular country. The Tribunal should keep in mind the possibility that the applicant's experiences may have been different in the past and may be different in the future. Secondly, in connection with the reference by the Tribunal to "serious harm", I draw attention to the difficulties associated with such expression as discussed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCAFC 77; FCA 334. 8 The application will be dismissed. I see no reason why costs should not follow the event. I order that the applicant pay the respondent's costs of the application, including reserved costs.