MZZVW v Minister for Immigration

[2014] FCCA 2386

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2386

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for Protection (Class XA) visa – adjournment refused – no appearance by or on behalf of the Applicant – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: MZZVW

First Respondent: Minister for Immigration & Border Protection

Second Respondent: Refugee Review Tribunal

File Number: MLG 1961 of 2013

Judgment of: Judge Hartnett

Hearing date: 14 October 2014

Delivered at: Melbourne

Delivered on: 14 October 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr Priest

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. (1)    The Applicant’s written application for an adjournment is refused.

2. (2) The Application filed 15 November 2013 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. (3)    The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLG 1961 of 2013

MZZVW

Applicant

And

Minister for Immigration & Border Protection

First Respondent

Refugee Review Tribunal

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. 1.  The matter which is before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 22 October 2013 (‘the Decision Record’) which affirmed a delegate of the First Respondent’s decision not to grant the Applicant a Protection (Class XA) visa (‘the protection visa’).  The Application was filed on 15 November 2013.  The Applicant has sought that his application be adjourned this day and that request for an adjournment is refused by the Court.  The Applicant’s request for an adjournment of the proceedings on this day is his third such request.  The reasons for refusal of such request follow.

2. 2.  The Applicant appeared before the Tribunal on 14 June and 17 July 2013 to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.  The Applicant was represented in relation to that review of the delegate’s decision by his registered migration agent, who attended the tribunal hearings. 

3. 3.  As set out in paragraphs 21 to 26 of the Decision Record, the Applicant attended the first day of the tribunal hearing on 14 June 2013.  The application before the Tribunal had been listed earlier in time, with an invitation to appear before the Tribunal being addressed to the Applicant’s representative by letter of 16 November 2012, specifying a hearing date before the Tribunal of Wednesday, 23 January 2013. 

4. 4.  On 21 January 2013, the Applicant’s psychologist, Mr Zac Stojcevski, wrote to the Tribunal seeking an adjournment of the proceedings on the basis of a depressive disorder suffered by the Applicant.  The Tribunal granted such request and, on 6 May 2013, invited the Applicant to a new hearing date of 14 June 2013. 

5. 5.  On the day before the newly appointed hearing date, and being 13 June 2013, the Applicant’s agent sent to the Tribunal a further report from the Applicant’s psychologist Mr Stojcevski dated 12 June 2013, which stated that the Applicant was not in a fit state to appropriately present his case.  On 14 June 2013, the Applicant attended the tribunal hearing.  It was adjourned after the Applicant indicated that he was not feeling well and further expressed concern about the quality of the interpreting.  The Tribunal determined to adjourn the hearing despite, as set out in paragraph 26 of the Decision Record:-

   1.        “… The Tribunal having observed no disjunct whatsoever between the questions put to the applicant and the responses received.”

6. 6.  On 17 June 2013, the Tribunal advised the Applicant of the resumption of the adjourned hearing.  The resumption of the hearing was to take place on 1 July 2013.  On 21 June 2013, the Tribunal wrote to the Applicant and his agent, advising that their records showed the agent had been suspended.  On 25 June 2013, the Applicant sought a postponement of the hearing of six weeks to find a new agent.  On 28 June 2013, the Applicant’s agent emailed the Tribunal that the Administrative Appeals Tribunal had stayed his suspension and so he was able to represent the Applicant at the hearing, but he requested a further adjournment of one to two weeks. 

7. 7.  On 2 July 2013, the Tribunal wrote to the Applicant and his agent to inform them that the agent’s postponement request had been agreed to.  The new hearing date was 17 July 2013.  On 8 July 2013, the Applicant responded to the hearing invitation and requested that the Tribunal take evidence from two witnesses:  a friend and the principle of the British school system.  Attached to the response to hearing invitation was a further report from Mr Stojcevski, psychologist, dated 28 June 2013 stating the Applicant was still not in a fit state to attend the hearing but requesting an interpreter be made available who was more:

   1.        “… consistent with his language needs and that the accuracy of their ability to interpret efficaciously is paramount to the patient.”

8. 8.  On 16 July 2013, the Tribunal contacted the Applicant and his agent to clarify whether he needed a Punjabi or Urdu interpreter.  On 17 July 2013, the Applicant attended the adjourned tribunal hearing.  At the start of that hearing, the Tribunal ascertained that the Applicant was satisfied with the interpreter, as set out in paragraph 31 of the Decision Record.  The hearing then proceeded. 

9. 9.  In essence, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa, because as set out in paragraph 52 of the Decision Record:-

   1.        “The Tribunal considers that this matter turns essentially on the applicant’s credibility, and for the following reasons finds that he is not a credible witness, and that he has fabricated his protection claims.”

10. 10.    The Applicant, within time, filed his judicial review Application in this Court on 15 November 2013.  The Applicant is from Lahore in Pakistan and he arrived in Australia on a Temporary Business (Short Stay) Subclass 456 visa on 20 March 2011.  On 3 May 2011, the Applicant first applied for a Protection (Class XA) visa.  That application was deemed invalid and on 28 July 2011, he made a valid visa application.

11. 11.    In respect of the application before this Court, the matter proceeded before Registrar Caporale on 5 February 2014.  On that day, various procedural orders were made and the application was listed for final hearing on 5 September 2014.  Tendered in evidence this day was correspondence dated 25 November 2013, which was not long after the filing of the Applicant’s Application, addressed to the Applicant from the solicitors acting on behalf of the First Respondent.  That correspondence enclosed, by way of service, a copy of a Notice of Address for Service filed in this Court on 25 November 2013.  That correspondence also set out a list of legal service providers and their contact numbers for the assistance of the Applicant.  Those legal service providers were Victoria Legal Aid, the Law Institute of Victoria, the Victorian Bar Association and the Refugee and Immigration Legal Centre.  The Applicant was thus provided with avenues to seek out legal advice, eleven months ago.

12. 12.    On 5 September 2014, being the final hearing date listed in February 2014, the Court ordered that the Application filed 15 November 2013 be adjourned for hearing to 15 September 2014 at the Applicant’s request.  Thereafter, followed a second request for adjournment by the Applicant, with such adjournment being granted and the matter being listed to 14 October 2014 at 11.30am.  In respect of the adjournment sought this day, being the third request for an adjournment by the Applicant, the First Respondent opposed the granting of an adjournment.  Counsel for the First Respondent submitted that the documents provided by the Applicant did not establish that his diagnosed medical condition was so serious as to affect his ability to participate in a scheduled hearing.  In relation to the letter from John Mirabile, case worker, dated 6 October 2014, Counsel noted the content of that letter was identical to that of the previous letter provided to the Court dated 9 September 2014.  Counsel also noted that none of the medical conditions attributed to the Applicant in this letter were later diagnosed by his doctor on 7 October 2014. 

13. 13.    Also tendered in evidence this day is correspondence dated 10 October 2014 from the solicitors for the First Respondent to the Applicant advising him that the First Respondent opposed the granting of a further adjournment, and enclosing a copy of the First Respondent solicitor’s email dated 9 October 2014 forwarded to the Court.  The Applicant was advised that the First Respondent reserved its right to seek orders from the Court that the matter be dismissed and that the Applicant pay the Minister for Immigration and Border Protection’s legal costs of the proceedings. 

14. 14.    This day, the Applicant was able to be contacted by telephone and was invited to appear before the Court by telephone if he wished.  The Applicant declined.  The Applicant’s case worker, Mr John Mirabile, sent a facsimile to the Court at 11.23am indicating that the Applicant was suffering physical and psychological distress and “feels he is unable to deal with the stress of representing himself before the court in person or by telephone.”  The Applicant requested a further two months to enable him to be fit enough to handle a court hearing.  His case worker also indicated that he had been unable to organise a lawyer because of his ongoing physical and mental health condition.  Attached to that facsimile was further correspondence from his treating psychologist, Mr Stojcevski of 10 October 2014 which was in similar vein to that provided to the Tribunal.  There was further correspondence from Baptcare of 14 October 2014 and a letter from Dr Hossam Darwish of 7 October 2014, which made no reference to any mental health difficulty.  The earlier medical correspondence from Dr Darwish of 4 September 2014 was also annexed.  That had been used on an earlier occasion to obtain an adjournment and indicated that, from that date, the Applicant required three days until recovery from his various illnesses.

15. 15.    The Applicant failed to attend the hearing this day.  The Court is not satisfied, on the evidence before it, that the Applicant is so medically unwell as to be unable to attend the hearing, either in person or by telephone.  The Applicant had the tribunal hearings adjourned as described above, and his application for judicial review in this Court adjourned on two earlier occasions. The Court determined that this day, the matter would proceed.  The Applicant’s request for further time, in part, because he needs to obtain legal representation is not accepted by the Court given that he has had some eleven months to obtain that representation, and was assisted in terms of where to seek that out by the solicitors for the First Respondent.  The medical evidence is not sufficient to grant an adjournment on this occasion. The Court has no confidence that the Applicant intends to proceed with his application at any time in the reasonably foreseeable future. 

16. 16. Upon the adjournment application being refused, counsel for the First Respondent sought that the application be dismissed pursuant to R.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The Court adopts this course and, in light of the Applicant failing to attend the hearing and prosecute his application, the Court dismisses the application. Costs will follow the event. The First Respondent claims an amount which is less than that provided in the Rules. Thus, an order is made in the sum claimed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 20 October 2014