BSS15 v Minister for Immigration

[2016] FCCA 3279

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3279

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting adjournment – adjournment refused.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

Cases cited:
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392

Applicant: BSS15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2360 of 2015

Judgment of: Judge Manousaridis

Hearing date: 5 December 2016

Delivered at: Sydney

Delivered on: 5 December 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr D Eberl of

Australian Government Solicitor

ORDERS

1. The applicant’s application for an adjournment of the hearing to extend time is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2360 of 2015

BSS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter came before me for hearing on 17 November 2016. On that day, after I explained to the applicant the nature of the hearing, which was an application to extend time under s.477(2) of the Migration Act 1958 (Cth), and after evidence was adduced, the applicant applied for an adjournment. He claimed he had not received the court book. He also said he was medically unfit to conduct his own case. I adjourned the hearing to today. I informed the applicant that should he wish to apply for an adjournment on the ground of his medical condition he would need to support any such application with medical evidence.

2. On 1 December 2016 the applicant filed what was described as an affidavit, in which he requested the court give him “sufficient time for preparation of submission as my medical condition does not allow me to concentrate on my case”. The affidavit had attached to it a report on the letterhead of the NSW Refugee Health Service. The report was signed by “Peter King, Clinical Nurse Specialist, per Dr. Eric Bustos, General Practitioner NSW Refugee Health Service”.

3. That letter presents a history of consultations between the applicant and the NSW Refugee Health Service.  The applicant referred himself to NSW Refugee Health Service in February 2016.  On 29 February 2016 the applicant reported a past medical history of a left lower leg fracture in 2000 requiring a cast with a good outcome.  The applicant also reported he had been diagnosed a year before with depression, for which he was prescribed antidepressants, but which he stopped taking because he could not afford them.  He had also reported experiencing panic attacks with multiple attendances at emergency departments with chest pain and left arm or jaw pain.  On each occasion cardiac aetiology was ruled out.  He also reported two weeks of forearm and hand pain at night. 

4. On examination Dr Bustos found the applicant was generally well, with no inflammation or deformity to his hands or arms.  Dr Bustos also found the applicant to be alert, pleasant and lucid and ruled out carpal tunnel syndrome. 

5. The applicant was again reviewed on 11 April 2016.  His hand symptoms had increased in severity, having reported to the emergency department at Auburn hospital on 26 March 2016.  He was there given a “differential diagnosis of possible Carpal Tunnel Syndrome with either a neurogenic or psychogenic origin and advised to take either Panadol or Ibuprofen for pain”. At his review of 11 April 2016 the applicant reported the pain had resolved, but parathesias had improved but not resolved.  The applicant also reported experiencing episodes of vertigo during the past 18 months, for which he had been treated with Stemetil.  Dr Bustos again ruled out Carpal Tunnel Syndrome or other aetiology for hand parathesias, and a recurrence of vertigo after previously being resolved under ear, nose and throat care.  The applicant’s pain was to have nerve conduction studies on 22 June 2016, as had previously been arranged. 

6. The applicant was again seen on 28 August 2016.  By this time the applicant had undertaken nerve conduction studies test.  The outcome of those tests is attached to the applicant’s affidavit.  It is contained in a report. Under the heading “Interpretation” the report states the following:

   (1) The neurophysiological study suggests minimal median nerve dysfunction at the right wrist. 

   (2)There was no definite neurophysiological evidence for large fibre peripheral nerve dysfunction in the left upper limb.

7. On 28 August 2016 the applicant reported a three week history of heartburn; numbness over hands, mainly at night and waking him; elbow, forearm and finger pain; and dizziness and tinnitus. He was seen by Dr Ng, who prescribed Somac for the heartburn, a wrist splint, and physiotherapy referral for the probable Carpal Tunnel Syndrome, and noted the possibility of a rheumatoid factor, or rheumatoid arthritis. 

8. The applicant was reviewed again on 10 October 2016 by Dr Bustos.  The applicant had not obtained a splint, nor had he physiotherapy.  The medication he had been prescribed for heartburn was controlling the symptoms, and he was referred to a specialist gastroenterology consultation for a baseline gastro-endoscope, and was given another prescription for Stemetil for his dizziness. 

9. On 1 November 2016 the applicant contacted the NSW Refugee Health Service again for referral to a physiotherapist for his right knee pain.  He was seen by Dr Bustos on 7 November 2016 and was referred to physiotherapy.  The report concluded as follows:

   We will continue to see [Applicant] at our Auburn Clinic and plan to see him for review in the New Year.  He is currently having physiotherapy at Westmead Hospital for his arm, hand and knee disorders and is awaiting Ear, Nose and Throat and Gastroenterology specialist consultations.  He continues to have counselling through STARTTS for his anxiety and depression. I have attached the Auburn ED discharge summary; Pathology results; and Nerve Conduction Study Report.

10. At the hearing before me today the applicant tendered further medical reports. These included a referral dated 7 October 2016 by NSW Refugee Health Service to physiotherapy, a letter from NSW Health Western Sydney to the applicant advising of an appointment to attend at the therapy department for an initial assessment on 11 January 2017.  That was to the physiotherapy outpatient clinic. 

11. The documents the applicant tendered also included two reports by a Dr Reza Pishyar, a psychologist.  The first of the two reports is dated 2 March 2015. That report refers to some reports by the applicant himself that, as a result of the nature of his unlawful sexual acts in Pakistan, he is reporting feelings of being more depressed and worried for his uncertain future.  The report refers to a number of symptoms of anxiety and depression. It notes a feeling of hopelessness and helplessness, low energy and feeling of tiredness and loss of motivation, insomnia and poor sleeping, difficulty to get up in the morning, poor memory and concentration, feeling of agitation and irritability, and worry about his future.  The report also states that the psychologist believed it would be highly beneficial for the applicant’s mental health recovery to get his refugee protection visa and starting his fresh life in Australia. 

12. The second report prepared by Dr Pishyar is dated 14 July 2015.  That report states that the applicant appears to exhibit symptoms of adequate frequency and severity to warrant a diagnosis of reactive depression mixed with generalised anxiety disorder and panic attack, with a gradual worsening of his symptoms. The report notes that the applicant’s symptoms have impacted severely on his social and psychological functions, and found it difficult to cope with his daily routine activities due to his high level mental distress and ongoing negative mental procrastination.  The report states that the applicant requires attending psychotherapy sessions to improve his mental capacity and preventing further mental health deterioration and relapses.  The report stated that the applicant:

    is reporting that he is not feeling well at the moment and I believe he is not fit to make a rational decision about his current immigration issues.

13. The report then sets out his current, that is to say, the applicant’s current psychological symptoms as including the following: poor memory and concentration, feeling of hopelessness and helplessness, poor sleeping and feeling of tiredness with low energy and lethargic attitude during day, feeling of agitation and irritability, and worried for his uncertain refugee status, constant fear of interrogation with feeling of insecurity if deported back to Pakistan, and experiencing nightmares and anticipatory anxiety regarding unexpected harsh punishment in his country of origin. And the report recommends that the applicant attend his psychotherapy sessions to maximise his coping strategies and gain more control over his depressed mood, anxiety mixed with worry components. And then it says that the applicant’s mental health capacity to be able to make a rational decision about his future will be reviewed in three months from today. 

14. It is not necessary to refer to the other documents the applicant tendered for the purpose of his application for an adjournment.  I then turn to consider the application for an adjournment itself. 

15. Whether or not a court should grant an adjournment is a matter within the court’s discretion.  There are a number of matters which are usually relevant to the exercise of that discretion. The only real question, of course, is whether it is in the interests of the administration of justice to grant the adjournment sought. That requires the court to consider at least two broad questions:

    a)The first is to consider why the adjournment is being sought.  The question there is why is the person seeking the adjournment not ready to proceed on the day the matter has been appointed for hearing. 

    b)The second question comes under the heading of utility.  That is to say, will here be any benefit to the applicant who seeks the adjournment if he were in fact given the adjournment sought?  If there is no rational basis for finding that there is some basis for believing an adjournment will be of any benefit to the applicant, that would be a substantial factor against the granting of an adjournment. 

16. Even if the Court were to be satisfied that there would be some prospect of the applicant being advantaged if an adjournment were granted, the court would then need to consider whether the adjournment would result in any prejudice to any other party.  It will also need to consider whether the adjournment should be given having regards to the public cost of the matter being adjourned. The consideration that I am referring to here is the consideration referred to by Logan J in MZAKQ v Minister for Immigration and Border Protection:[1]

    Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day.

    [1] [2016] FCA 1392 at [11]

17. So I turn now to the reasons, or reason, for which the applicant says he is not ready to proceed today.  The reason is his medical condition.  In broad terms the applicant says that he lacks the capacity to concentrate to a sufficient degree to enable him to prepare submissions and conduct his case. 

18. As I have already noted, the applicant has submitted medical evidence.  There is no question that that evidence shows the applicant suffers from a variety of ailments.  The most relevant, although not the only relevant condition, is the diagnosis of depression. Of particular relevance are the reports of Dr Pishyar, which I have referred to already, and there is a very strong opinion expressed about the capacity of the applicant to make rational decisions relating to his immigration case, or immigration issues.  On the face of it that evidence is quite important. It does not appear to explore, however, or sufficiently explore, what the source of the applicant’s anxiety and depression might be; nor does it go into detail as to how the symptoms recorded in those reports affect the applicant’s ability to prepare for his case. 

19. But even ignoring those matters and accepting the conclusions on their face there are other matters that are relevant. First of all, the reports were prepared some time ago.  There is no more recent report, as far as I can tell from the evidence, than the report dated 14 July 2015. 

20. Second, notwithstanding the conclusions contained in the reports of Dr Pishyar, the applicant did manage to prepare and file an application for judicial review in this court together with an affidavit.  That indicates a number of things.

21. One is that the applicant was able to prepare the application.  He did tell me that he received assistance in preparing that application.  Nevertheless, the fact that he was able with assistance to prepare the application, which is quite a lengthy document, is evidence that notwithstanding his medical conditions the applicant has the capacity to prepare for and conduct his case.

22. Also relevant is the affidavit he has prepared. That affidavit is principally directed to the reason why he did not file his application for judicial review within the 35 day period prescribed by s.477(1) of the Act. Again, the applicant tells me, and I have no reason to disbelieve him, he prepared that affidavit with some assistance, including the assistance of a lawyer. But again, the fact that the applicant prepared that affidavit for a relevant purpose indicates that he has the requisite capacity to conduct his case and had the requisite capacity to prepare for the hearing of his case.

23. Another matter which I believe is relevant is the impressions I have formed by speaking with the applicant.  I say this knowing full well I am not a psychologist, psychiatrist, or medical practitioner.  Nevertheless, my impression of the applicant is that he understood the questions I asked of him and he was able to understand those questions and answer them.  He obviously understood the submissions that were made by the Minister opposing the application for an adjournment.  He specifically referred to at least one of the submissions that was made on behalf of the Minister, which indicated a degree of comprehension and intelligence on the part of the applicant.  Based on my impressions I am satisfied that the applicant understands what the nature of the proceeding is, and that he is capable of meaningfully participating in it.

24. Now, I do understand that a part, or the major part, of the applicant’s application for an extension of time is that he needs further time to prepare.  In that respect I do consider it important that the applicant has had a lot of time to prepare for the hearing of this application. The proceeding was commenced on 27 August 2015. The matter was set down for hearing on 8 October 2015,[2] which is over a year ago. Even with the medical difficulties the applicant suffers from, I cannot be satisfied that one year was insufficient time for the applicant to consider and prepare for the hearing. 

    [2] That is, on 8 October 2015 the Registrar set the matter down for hearing on 17 November 2016

25. For those reasons I am not satisfied the applicant has given adequate evidence to explain his inability to conduct his case.  Nevertheless, I do now turn to the question of utility. 

26. The applicant was unable to identify the amount of time he required in order to prepare for his case.  He said that that would in effect depend on the treatment he receives and on the medication he takes.  He said that he was on medication for two of his conditions, one for dizziness and one for acidic stomach, and that he had been on that medication for two months.  The applicant is not on any medication for depression.  I think the applicant said to me that that was due to financial reasons; whether or not he will go on medication will depend on what the doctor says, however the applicant was not worried about whether he could afford such medication, indicating that the community might be able to assist him in acquiring that medication.

27. Another matter relevant to utility is the nature of the applicant’s case. The matter that is before the Court is an application under section s.477(2) of the Act to extend the time for making an application. As I explained to the applicant on 17 November 2016, whether or not the Court will extend the time is a matter that falls within the Court’s discretion. Generally there are two matters the Court considers. One is whether there has been an adequate explanation for the delay and the length of the delay, and the apparent strength of the grounds contained in the application. Now, of course it is not appropriate for me on an application such as this to say much about the merit of that application, but it is not an irrelevant factor to consider the apparent merits of the applicant’s application to extend time.

28. The decision of the second respondent was given on 17 October 2014, yet the application to this Court was not made until 27 August 2015, which on its face is not an insignificant delay. Then there is the explanation given by the applicant for that delay. It refers to an unawareness of a time bar and an unparticularised assertion that the applicant had been misguided by some unprofessional lawyers. 

29. And then one turns to the grounds of the application.  Now, as I said, it is not my role at this stage to say much about them; but the impression one gains from what is contained in the application is that the applicant seeks merits review and relies on matters such as his current psychological state.  In other words, and again being careful not to say too much about the application, on its face it appears weak and affords another ground for not being persuaded that there would be any utility in granting an adjournment. 

30. For these reasons, therefore, I am of the opinion that it is not in the interests of the administration of justice to grant the applicant the adjournment he seeks, and I therefore propose to dismiss, and I will dismiss, that application for an adjournment.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 15 December 2016