Applicant B83-2001 v MIMA

[2003] HCATrans 775

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B83 of 2001

B e t w e e n -

APPLICANT B83/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 12.20 PM

Copyright in the High Court of Australia

APPLICANT B83/2001 appeared in person.

MR A.A.J. HORNEMAN‑WREN:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KHALID RASHID SAGER, affirmed as interpreter:

McHUGH J:   By reason of the legislation, we cannot address you by name.  You have a number, regrettably, and you are known as Applicant B83.  So, it is no discourtesy on my part to you in addressing you by that title.  That is what the law says we have to do.  You are seeking an adjournment of this application for three years, is that correct?

APPLICANT B83/2001 (through interpreter):   I am being treated by a doctor and it may take time for me to recover, as my doctor has said, and then I need a little bit more time because this is my last chance, so I need more time for my case.

McHUGH J:   Yes.  Just sit down for a moment.  What do you say about this, Mr Horneman‑Wren?

MR HORNEMAN‑WREN:   May it please the Court.  Your Honours, the position of the respondent is one of formal opposition, however, that position is taken in recognition necessarily of the fact that the applicant is self‑represented and the respondent is not in a position to respond in any way or to contest the medical evidence contained in the affidavit in support of the application.  Your Honours, if I might seek your leave to read an affidavit of Murray Bruce Belcher which was filed yesterday.

KIRBY J:   Yes, we have seen that.

McHUGH J:   We have seen that.

MR HORNEMAN‑WREN:   It sets out some of the history of the matter, including a letter from the Registry which you will have seen of February of this year reminding the applicant of the grant of an adjournment essentially this time last year for a period of 12 months.

KIRBY J:   Yes, we know all this.  Do you object to the reading of the affidavit of the applicant which is sworn 19 June 2003?

MR HORNEMAN‑WREN:   No, I do not, your Honour.

KIRBY J:   Do you object to any of the annexures or exhibits to that affidavit?

MR HORNEMAN‑WREN:   No, I do not.

KIRBY J:   Do you wish to cross‑examine any of those doctors?

MR HORNEMAN‑WREN:   No, I do not.

McHUGH J:   Very well, we will deal with the matter but first of all I want to say something to the applicant.  This case will have to be dealt with fairly quickly.  We are prepared to grant you an adjournment today but the matter will have to be heard at the next hearing by way of video link from Brisbane and you will either have to have legal representation to present your case or the Court will deal with the case on the papers.  If you cannot arrange or you do not wish to arrange legal representation, then we will deal with the matter on the papers, including any further written argument you want to submit to the Court.

APPLICANT B83/2001 (through interpreter):   What did…..?

McHUGH J:   That will be a matter for the Registry, but it will probably be a month or two.

APPLICANT B83/2001 (through interpreter):   My doctor says that I am not medically fit to appear in the Court and also I have been hurt in my head so I do not think I am fit to appear in the Court.

McHUGH J:   You do not have to appear in Court.  You can get legal representation but if you do not want legal representation or you cannot get it, then the Court will deal with the matter on the papers, but the Court cannot just adjourn this case.  It is a very weak case that you have brought.

APPLICANT B83/2001 (through interpreter):   Because I have been hit in the head before and I have not been well and I am also having family problems.  Before, I was earning money, that is why I was able to arrange the lawyer but now I do not even have the money to appear with a lawyer.  What can I do?

McHUGH J:   We understand that and I am going to give a judgment now and the judgment will be available within the next few days and it can be read, but it is just impossible, as a matter of justice to the Minister, to just adjourn this case indefinitely.

APPLICANT B83/2001 (through interpreter):   As I said earlier, I have been hit in my head and so I have forgotten most of the vital information

and I sometimes do not remember what I have to say, so I am not mentally well to present my case.

McHUGH J:   Yes.  We understand that that is what you say and we have read the medical evidence, but the matter will be adjourned until the next hearings of the Court by video link.  So I am going to give a judgment and set out the reasons for it and they can be translated to you when they become available.

The applicant seeks a further adjournment of the hearing of his application for special leave to appeal to this Court from a unanimous order of the Full Court of the Federal Court of Australia.

The history of this litigation is depressing.  The applicant, a national of India, arrived in Australia as long ago as 11 September 1995 and in that month applied for a protection visa on the ground of refugee status.  The application was denied by the Minister’s delegate on 11 April 1997.  The Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision in August 1998.  In December 2000 a judge of the Federal Court dismissed an application for judicial review.  It was that order that was affirmed by the Full Court of the Federal Court in September 2001.

The residual complaint of the applicant in this application concerns the failure of the Tribunal to direct that communication to him be had through an interpreter.  In his application to the Tribunal, the applicant answered “no” to the question, “Do you need an interpreter?”  He said, “I am going to try by myself”.

The Federal Court correctly acknowledged that a person who can perform mundane, social or business tasks may not be able to cope before a court or tribunal with the added stress of that situation.  The Full Court’s approach in that regard was impeccable.  Moreover, that court concluded, from an examination of the transcript, that the applicant’s answers to questions were “responsive”, “generally coherent” and “consistent with the written claims contained in his application”.  The Full Court rejected any suggestion that the applicant became confused in the hearing.  Its treatment of the factual and legal issues also appear impeccable.

It is against this background that we approach this application for adjournment.  The case was adjourned once before in this Court, having already been adjourned several times in the Federal Court.  It was first listed by this Court in June 2002.  At the applicant’s request, it was then adjourned to the current sittings.  In June 2003, notice of the application for a further adjournment was received by the Registry.

The applicant, by an affidavit sworn on 19 June 2003, asserts that in October 2001 he was unlawfully assaulted when an assailant struck him on the head with a hockey stick.  He states that the assault caused him not only physical injury, but also psychological injury.  He stated in his affidavit that he suffers from a post‑traumatic stress syndrome.  Here today he has said that his memory fails him and at different times he is unable to remember various events relevant to this application.

The medical reports relied on by the applicant include one from a Dr Cook, a consultant psychiatrist, to the effect that the applicant has a post‑traumatic stress disorder.  Dr Cook expresses the opinion that the applicant is not fit to appear in the Court at the present time.  Dr Cook says he will not be able to appear for at least 12 months until July 2004.  A similar view has been expressed by a treating psychologist and a clinical neuro‑psychologist, a physiotherapist and a local doctor. 

The inability of the applicant personally to present his case is obviously a factor to be considered in an application for adjournment.  However, there is no reason why his application should not be decided on the basis of submissions by a legal representative or on the papers.

On the face of things, the application appears to be an unpromising one, being dependent on factual determinations made adversely to the applicant in the Federal Court.  While, of course, the application is important to the applicant and his family, it concerns his status and the composition of the Australian community and Australia’s compliance with its international obligations.  It should be decided as quickly as possible.  Repeated adjournments for a year at a time are not acceptable.  The application must be decided without further delay.

Accordingly, we will adjourn the application to the next video link from Brisbane when it can be dealt with.  If the applicant, for one reason or another, does not arrange for legal representation, the Court will deal with his application on the papers, including any further written argument that he provides to the Court and to the respondent.  The costs of the proceedings today will be costs in the application for special leave. 

Accordingly, the Court adjourns the application to the next video link from Brisbane.

The Court will now adjourn to reconstitute.

AT 12.37 PM THE MATTER WAS ADJOURNED