BYP16 v Minister for Immigration

[2020] FCCA 2543

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYP16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2543

Catchwords:
MIGRATION – Application for adjournment – receipt by the Court of a report from a psychiatrist – whether or not a litigation guardian ought to be appointed – hearing adjourned to allow first respondent’s lawyers to obtain instructions.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03A(1), 13.03B(1).

Cases cited:

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1559.

MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392.

Applicant: BYP16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1578 of 2016

Judgment of: Judge Egan

Hearing date: 4 September 2020

Date of Last Submission: 4 September 2020

Delivered at: Brisbane

Delivered on: 4 September 2020

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Ms Ward of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The matter be adjourned for final hearing to 9.45am (AEST) on 11 November 2020 in the Federal Circuit Court of Australia at Brisbane before His Honour Judge Egan.

2. If the First Respondent does not seek dismissal of the proceeding pursuant to Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth), the First Respondent is to file and serve an affidavit on the question as to whether or not a litigation guardian can be appointed to act on behalf of the Applicant and, if so, by what means, by 4.00pm on 18 September 2020.

3. The matter be listed for directions at 9.45am (AEST) on 21 September 2020 in the Federal Circuit Court of Australia at Brisbane before His Honour Judge Egan.

4. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.

5. The costs of and incidental to today’s hearing be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. MLG 1578 of 2016

BYP16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing today before the Court. 

2. The previous order of the Court was made on 4 August 2020.  Order 2 made on that day was as follows: 

   “2. The applicant is to file and serve an amended application, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review, by 4:00pm on 13 August 2020.”

3. At the time that orders were made on 4 August 2020, the applicant was represented by a lawyer.  It would appear that a notice of withdrawal of that lawyer was filed on 21 August 2020 – namely, eight days after the requirement for the filing and service of an amended application, as earlier referred to. 

4. No amended application as ordered was filed by or on behalf of the applicant. In those circumstances, the applicant is clearly in “default” of the order of the Court made on 4 August 2020, within the meaning of that term as used in Rule 13.03A(1) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

5. Judge’s chambers received by email this morning, at 9.11am, a report from a psychiatrist named Dr Tram Nguyen.  That report, in part, stated that the applicant would be unable to represent himself at the hearing today based upon his psychiatric condition.  To the extent that such report has been put before the Court and marked Exhibit 1, the Court accepts that there has been compliance with the requirement for a Court being satisfied, by evidence from a medical practitioner, that a party is unable to appear at Court for medical reasons.  The Court has, in that regard, accepted that it is bound by the decisions of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559, and Logan J in MZAKQ v Minister for Immigration & Anor [2016] FCA 1392.

6. The Court is not minded to proceed to a hearing today in the light of the psychiatric evidence as constituted by Exhibit 1.  It is, nonetheless, the Court’s view that the situation cannot go on forever, in terms of the applicant presenting the Court with medical evidence suggesting that his matter ought to be adjourned again and again because of his psychiatric state. 

7. The Court raised with Ms Ward, on behalf of the first respondent, the possibility of a litigation guardian being appointed to represent the applicant.  In a short dialogue which the Court had with the applicant, the applicant indicated that he did not have a relative or a friend who he believed would be able to consent to act as his litigation guardian.

8. In circumstances where today, Ms Ward on behalf of the first respondent, did not have instructions to seek the dismissal of the claim pursuant to Rule 13.03B(1) of the Rules, the Court is uncertain as to what the first respondent’s position will now be in the light of the adjournment of the hearing. Ms Ward has indicated that she will need to seek instructions in that regard.

9. The Court will list the matter for directions such that the first respondent might indicate to the Court whether it intends to seek orders pursuant to Rule 13.03B of the Rules or not.

10. The costs of and incidental to today’s hearing are reserved.

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

Associate:

Date: 10 September 2020