QAAM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 873

FEDERAL COURT OF AUSTRALIA

QAAM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 873

QAAM OF 2002 and QAAP OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Q 53 of 2003

KIEFEL J
BRISBANE
20 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q53 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE DEPUTY PRESIDENT

BETWEEN:

QAAM OF 2002
FIRST APPLICANT

QAAP OF 2003
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

20 AUGUST 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The adjournment is refused.

2.        The application is dismissed.

THE COURT FURTHER ORDERS THAT:

3.        The male applicant pay the respondent’s costs of and incidental to the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q53 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY THE DEPUTY PRESIDENT

BETWEEN:

QAAM OF 2002
FIRST APPLICANT

QAAP OF 2003
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	KIEFEL J
DATE:	20 AUGUST 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The appeal in this matter was filed on 23 April 2003.  The applicants were a male applicant and his daughter who had recently unsuccessfully applied for refugee status.  It would appear to be an appeal against five decisions of the Administrative Appeals Tribunal (‘the AAT’) which are said to have been made on 18 March 2003 and were received on 23 March 2003.  Although the dates are not exact, I take this to refer to the decision of the AAT of 13 March 2003, where it refused to reinstate the matters of 2002 numbered 669, 705, 742, 932, and 1015.  All of these matters had been dismissed because the Tribunal held that it had no jurisdiction.

2. That would seem to me to be obviously correct.  They were appeals or applications with respect to decisions of the Refugee Review Tribunal (‘the RRT’) and of the delegate concerning the daughter’s refugee status.  It is not entirely clear what orders the applicants would seek, but I take it that they wish to require the AAT to reinstate the matters upon which it has determined that it has no jurisdiction.  No appeals appear to have been brought with respect to the individual matters in the AAT.

3. As I have said, the decisions sought to be reinstated relate mainly to the daughter’s applications for refugee status and his attempts to have the AAT review them.  I understand that in other proceedings, an appeal by the same applicants from the RRT’s decision concerning the delegate’s decision has been dismissed by the consent of the daughter’s guardian ad litem, who was appointed by the Court.  As I have indicated to Mr Brady in discussion in Court this morning, if the matter proceeded, the applicants would have needed to explain why these proceedings were not to be seen as an abuse of process, but we do not need to go further into that at this point.

4. It would, however, appear that this may be the last of a long series of applications to this Court by these applicants.  Since last Friday it has been drawn to my attention that the male applicant, the father, has been attempting to obtain an adjournment.  During that process he has claimed that he wanted to seek a lawyer, although I am aware that he has never appeared with a lawyer or sought to have a lawyer appear for him in the many applications he has brought to the Court.  He has also demanded that the four or five separate AAT files or matters to which his overall appeal refers, be split up and heard by individual judges but this was not acceded to by the Registry.

5. He was advised by the Deputy District Registrar to provide medical certificates if an adjournment was sought on the basis of his or his daughter’s ill-health.  He had said that both he and his daughter were under observation for some conditions.  Yesterday morning, 19 August 2003, two documents were sent by him by facsimile transmission from North Queensland. One was illegible.  They were both in German.  The legible document purported to be from a doctor who had seen the male applicant when he was last in Germany, whenever that was.  I did not attempt a complete translation, but I understood the document to refer to him having something of a heart condition and the doctor expressed the view that he needed four weeks rest, although how the doctor came to that view was not readily apparent on my reading of it.

6. The male applicant was then advised in writing by the Deputy District Registrar that he must supply a medical certificate from a doctor who had recently examined him and that it must be in English.  He was also told that he should not assume that an adjournment would be given on the basis of documents put forward and that he should appear in order to seek an adjournment.  He was warned that if he did not orders may be made in his absence.  A document faxed by him last night is now before the Court.  It is a report from a Dr Gibberd of Atherton.  The doctor says that the male applicant is said to be suffering from some stress in managing his mango farm, and I take it that the litigation would add to this.

7. The doctor advises that he believes it would be ‘less stressful’ to him if the appeal could be delayed until the school holidays, at which time he could attend Brisbane with his daughter.  Notably, there is no reference by the doctor at any point to any medical condition from which he suffers, nor does the doctor suggest that the levels of stress are such that he is unable to conduct proceedings. 

8. The male applicant has, I understand, been recently in Brisbane with his daughter.  He has travelled to Brisbane or appeared by video link on previous occasions.  When he has been unable to undertake a trip, video links and even telephone links have been put in place for him.  He has not sought on this occasion to make any such arrangement, even for the purpose of seeking an adjournment.  Given the advices he was provided with I consider that it is likely that he made a decision not to do so in the belief that he might ensure an adjournment.  I infer that there is a very good prospect that he is seeking to delay these proceedings, of which he has had ample notice.

9. The matter was first mentioned at a directions hearing on 15 May of this year, at which time it was set down for hearing today.  The matter would have been heard earlier but for the applicants seeking some further time and because he had other proceedings on foot involving his daughter.  As I have mentioned, the doctor does not say that he is physically or mentally unable to undertake the conduct of this matter.  In all these circumstances, I would not be disposed to grant an adjournment.  I also bear in mind that, as I have indicated, there would appear to me to be almost no merit in the proceedings.

10. In these circumstances there would not seem to me to be any useful purpose in continuing them.  The adjournment will be refused, the application dismissed and there will be a further order that the male applicant pay the respondent’s costs of and incidental to the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:
Dated:            25 August 2003

For the Applicants:	No appearance
Counsel for the Respondent:	Mr Brady
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 August 2003
Date of Judgment:	20 August 2003