MOHAMMED v Minister for Immigration

[2018] FCCA 1501

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1501

Catchwords:
PRACTICE & PROCEDURE – Application for adjournment – whether adequate explanation given for not being ready to proceed – application refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.01C(1)(c)

Applicant: SIDDIQ MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3385 of 2016

Judgment of: Judge Manousaridis

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Sydney

Delivered on: 31 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the First Respondent: Ms A Lucchese of Sparke Helmore

ORDERS

1. The order dismissing the application pursuant to rule 13.03C (1)(c) of the Federal Circuit Court Rules 2001 (Cth) made on 31 May 2018 is set aside.

2. The applicant’s application for the hearing to be adjourned is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3385 of 2016

SIDDIQ MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 1 December 2016 the applicant filed with this Court an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 3 November 2016. In that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a student visa.

2. The matter came before a Registrar on a first court date on 30 March 2017. On that day the Registrar made orders for the further conduct of the proceeding and ordered that the matter be set down for hearing before me at 10.15 am at 80 William Street on 31 May 2018.

3. The applicant did not appear at the hearing today until 10.40 am. He appeared when I was in the process of making orders for costs against him after I had made an order dismissing his application for non-appearance. Having pronounced that order it will be necessary for me to set aside that order. In any event, the applicant said he was late because he went to a different court. In particular, he went to the Federal Court Registry in Queen Street, so he told me.  

4. I commenced the hearing and explained to the applicant the nature of the hearing and the procedure that would be followed. Before the documents were tendered and I admitted them into evidence the applicant indicated that he had a document to give to me. I had assumed that the document was going to be in the nature of a submission. When it was handed to me, in fact, the document was an affidavit made by the applicant on 30 May 2018. The applicant handed up to me the affidavit and I will make a formal order to the effect that the applicant had leave to file in court the affidavit of 30 May 2018.

5. I adjourned the matter for a little while to enable the applicant to have interpreted to him the Minister’s submissions and to give me an opportunity to read the affidavit the applicant filed in court and for my associate to make copies of the affidavit to be given to Ms Lucchese who represents the first respondent, the Minister. The affidavit is as follows:

   1.  I have not been feeling well for over a year,

   2.  Recently my condition has become worse. I am suffering from severe back pain and depression,

   3.  I am finding it hard to present my case before the court while in ill health,

   4.  Therefore, I request the court to postpone my final hearing date,

   5.  Attached and marked A is my recent medical certificate,

   6.  Attached and marked B is a record of medical condition I suffered while in India.

6. Annexure A is a medical certificate issued by a Dr Muhammad Virk dated 29 May 2018. It states:

   This is to certify that Mr – that [the applicant] has history of back pain and depression. He is suffering from severe back pain which leads to depression.

   [The applicant] will be unfit for any studies or normal duties next two weeks from 29/05/2018 to 09/06/2018 inclusive.

   He has been advised to get lower back scan.

7. When I returned to the bench I invited the applicant to make submissions in support of his application for an adjournment. It became apparent immediately that the applicant was not only seeking an adjournment on the basis of his health conditions, as set out in his affidavit; he was also seeking an adjournment to be given an opportunity for him to hire a lawyer. I asked the applicant a number of questions about that. He said to me from the bar table that he made inquiries of two lawyers, one on 15 May 2018 and one on 18 May 2018. He indicated to me that the expected cost of retaining a lawyer was $4,000. He said he spoke to his parents on 22 May 2018 about the possibility of his parents providing him with the money. The applicant initially said to me that his parents said that they needed some time to raise the money because the $4,000 was a large amount. When I asked him further questions about by when he expected his parents to provide the money he said, “within one month”.

8. It also transpired from the questions I asked that the application that was filed in December 2016 was prepared by a lawyer. I asked that question because the grounds did not appear to have been prepared by someone who did not have at least some legal skills in drafting. Although no lawyer is on the record, that the applicant had retained a lawyer is supported by the fact that the affidavit which the applicant filed at the time he filed the application is witnessed by a person called Ashrita Zeeshan. At least that’s how I read the writing on the affidavit. Next to the words “qualification of witness” the word “lawyer” is written. I reserve to myself the right to inquire whether there is such a person as Ashrita Zeeshan and whether that person is a lawyer, and perhaps refer this affidavit to the relevant authorities with a view to investigating whether it is appropriate professional conduct for a lawyer to advise and draft documents to be filed in this Court without that lawyer formally putting himself or herself on the record. But that has nothing to do with the application that is before me.

9. The applicant said that he needed an adjournment of two months so that he could raise the money and for the lawyer he will retain to acquaint himself or herself with his case.

10. I also asked the applicant a number of questions in relation to his medical condition. I first noted that one set of the medical reports relating to his back pain were issued on 15 May 2017 by a hospital in Hyderabad. I asked the applicant whether he had any other evidence of his back condition. The applicant initially said that, as I understood it at any rate, that he had additional documents but these were in India.

11. I then asked the applicant when he last visited India. That occurred in January 2017 and he said he returned to Australia in March 2017. When I asked him whether he had any medical certificate or other medical evidence from an Australian hospital or medical practitioner, other than the one from Dr Virk which related to his back condition, I am not sure exactly what the applicant said. I initially understood him to say he had not conducted a search of these documents at home properly, but, in any event, he has not put in his affidavit any document issued by any Australian practitioner or medical institution in relation to his back pain.

12. There is nothing in the affidavit which indicates that the applicant has been receiving any ongoing treatment from anyone in Australia, including Dr Virk. I asked the applicant whether, assuming he cannot get a lawyer, why he says whether he will be in a better position to present his case in two weeks’ time than he would be if the matter proceeded today. The reason I asked that question is that the medical certificate from Dr Virk only stated he would be unfit for normal duties for the following two weeks. The applicant said he would not be in a position. When I asked him why he said because he has been prescribed some medicine. He could not tell me, however, the medicine he has been prescribed; and, in any event, he told me that he has been taking drugs which he has sourced from India.

13. The application for an adjournment is opposed by the Minister for two reasons: The first is that the applicant has had an opportunity to obtain legal representation and had, indeed, obtained legal representation at the time he commenced the proceeding. And, secondly, it is submitted that the medical evidence that has been given before the Court does not support a finding that the applicant is not in a position to meaningfully participate in a hearing. It was submitted that although the medical evidence suggested that in March 2017 the applicant was advised to stay in bed it is apparent from what the applicant said to me that he, nevertheless, was able to travel from India to Australia.

14. Whether or not an adjournment is to be granted is a matter within the discretion of the court. That discretion is exercised according to well-known principles. The first is whether sufficient reason has been given for why the party applying for the adjournment is not in a position to proceed with the hearing. As I have already noted the applicant has referred to two matters: his need to obtain a lawyer, and his medical condition.

15. The first reason is an inadequate reason. First, the applicant, on his own say-so from the bar table, had the benefit of legal advice, or at least legal assistance, because the application itself was prepared by a lawyer. That indicates at that at that time the applicant was able to obtain some form of legal representation and may, although I make no finding about this, indicate that he has been in a position since December 2016 to obtain some money to obtain legal representation for his hearing.

16. From what the applicant tells me – and I’m going to accept this for the purposes of this application - the first occasion the applicant says he sought legal advice after obtaining the assistance of the lawyer when preparing the application was on 15 May 2018. And the first occasion he says he sought assistance to pay for such lawyer was 22 May 2018. The applicant says that the reason he did not do this earlier was because of his medical condition. That is something I will return to in a moment, but the difficulty with that submission is that the applicant says he suffers from a medical condition, but that did not prevent him on 15 and 18 May 2018 from seeking legal advice. And the inescapable inference is that if the applicant has suffered from that medical condition from at least March 2017, which is the earliest date of the medical evidence that is before me, his medical condition could not have prevented the applicant from seeking legal assistance.

17. The second matter is the medical evidence. Now, there are two questions that arise. The first is whether the applicant suffers from any particular medical condition, and, secondly, whether whatever medical condition the applicant suffers from prevents him from meaningfully participating in a hearing. The evidence before me cannot satisfy me that the applicant is currently suffering from any medical condition. It is true that there is medical evidence about the applicant suffering from afflictions affecting his back, but these afflictions are reported in a document issued in March 2017; and I do note that in one of those two documents it is stated that the applicant:

    Need a bed rest for at least 12 weeks to recover completely from the lower back pain and strongly advised not fit for work or studies.

18. On the evidence that is before me the inference that should be drawn, and I do draw, is that whatever medical condition the applicant is recorded as suffering in the medical certificates issued by the hospital in Hyderabad has been resolved. That inference is strengthened by the fact that the applicant has tendered no more recent evidence in relation to his back condition.

19. The other asserted medical condition is depression. The only evidence, if I can call it evidence, is the certificate issued by Dr Virk. There’s nothing to suggest that Dr Virk is qualified to give that opinion. And, in any event, from the certificate itself the basis of the opinion given is that the applicant is suffering from severe back pain. As I have already noted the evidence as to the existence of back pain is such which indicates that whatever condition the applicant had in that regard has been resolved. And I also note that although there’s a reference to depression in the certificate, the drugs that the applicant says he was prescribed are not drugs for depression, as I understood him. They are drugs to relieve his back pain.

20. In any event, even if I were to accept that the applicant is suffering from back pain, and it might well be that he does have a residual issue in that regard, notwithstanding what is contained in the report from the hospital at Hyderabad, I am not satisfied that such back pain is such as to prevent the applicant from being in a position to meaningfully participate in a hearing. Further, even if the applicant, as he says, is suffering from some form of depression I am not satisfied that that condition prevents the applicant from being in a position to meaningfully participate in a hearing. I am not, of course, a medical practitioner, but I have been engaged in this hearing now for almost an hour and a half and the applicant, from my observation, has the ability to understand the questions I ask of him, whether it’s interpreted or not interpreted, and he has the ability to answer questions. And he may well be in some discomfort. I am not saying that he is, but whatever discomfort he may be experiencing is not manifested by the manner in which he is conducting himself before me today.

21. For those reasons, therefore, I will dismiss the application for an adjournment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 June 2018