Rebchuk v Minister for Immigration and Multicultural Affairs

[2001] FCA 716

FEDERAL COURT OF AUSTRALIA

Rebchuk v Minister for Immigration & Multicultural Affairs
[2001] FCA 716

VOLODYMYR REBCHUK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1252 OF 2000

GYLES J
SYDNEY
8 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1252 OF 2000

BETWEEN:	VOLODYMYR REBCHUK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	8 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for adjournment be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1252 OF 2000

BETWEEN:	VOLODYMYR REBCHUK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	8 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT ON APPLICATION
FOR ADJOURNMENT – EX TEMPORE

1. This is an application to review the decision of the Refugee Review Tribunal (“the RRT”) dated 5 October 2000, affirming the decision of the respondent to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”). The application was filed in this Court on 21 November 2000, returnable before the court on 14 December 2000. The grounds of the application were simply identified as three paragraphs of s 476(1) of the Act with no particularisation.

2. When the matter came before this Court on 14 December 2000 the applicant did not appear.  On that occasion a friend did appear and apparently produced some form of medical report flagging the possibility of the applicant not being able to appear due to ill health on any hearing.  On that date orders were made by the Registrar as to the progress of the case, including an order that the applicant file and serve any amended application and any further material on which he seeks to rely by 30 January 2001.  The matter was listed for hearing at 10.15am on 27 February 2001.  The applicant was ordered to file and serve an outline of written submissions five days before the date of that hearing.  No amended application, no further evidence or material and no outline of submissions was or has been filed in the proceeding.

3. When the matter came on for hearing before me on 27 February 2001 the applicant again did not appear but another person appeared saying she was his de-facto wife.  She provided an explanation for the applicant being unable to attend the hearing and sought an adjournment of the hearing until June or July 2001.  The reason advanced on that occasion in a letter signed by the applicant was:

   “Due to the reason that I still have not had a chance to apply for legal representation, the fact that I have a cancer and have just undergone the therapy (which resulted in severe deterioration of my health) …”

   What were said to be medical certificates were enclosed with the letter.  These documents proved that the applicant had metastatic cancer of the testis and would require chemotherapy, although he was apparently not anxious to have such therapy.  The bundle of documents which were produced on that occasion are now exhibit “B” before me.

4. On 27 February 2001 I indicated that I was not satisfied that a basis had been shown for a lengthy adjournment but the exigencies of my list in fact led to such an adjournment.  Counsel for the respondent, who was present on that occasion, informs me that I drew attention to the lack of particularisation of the application.  I have no independent memory of that and there is no transcript.  It is likely however that it is a matter I would have drawn attention to.  There has still been no further particularisation of the application and no submissions have been filed.  The applicant remains self-represented.

5. The applicant appears before me today and tenders a medical certificate of a consultant in gastro-intestinal and liver diseases who says he has been seeing the applicant since 21 May 2001.  I need not set out the whole of the medical certificate in this judgment, but it indicates that the applicant is currently very unwell, suffering constant upper abdominal pain and nausea.  The applicant is deciding whether he should have further chemotherapy.  Without the therapy he is unlikely to survive more than six months.  The application which is now made by the applicant is to adjourn the matter for some twelve months. 

6. Counsel for the respondent, on behalf of his client, opposes that application and any application for adjournment, on the basis that there is no indication that the applicant will be better placed on any future occasion than he is today.  Counsel for the respondent also submits that the lack of particularisation of the case indicates a lack of merit which is relevant to be taken into account in an application for such a lengthy adjournment.  The applicant argues that a postponement is necessary in order that he can concentrate on his treatment rather than the court case and also that his present physical and emotional state makes it difficult to present the case. 

7. The dilemma which this matter presents to the Court is quite acute because there is much to be said on both sides.  There can be no doubt that the applicant is correct when he says that he will have difficulty presenting his case at the present time.  That is partly due to his health, which I am sure makes concentration difficult in the circumstances.  On the other hand, there is nothing in the evidence before me which would indicate that the applicant lacks the mental capacity to comprehend and put forward his case today.  It seems to me that his principal difficulty in putting forward his case is the fact that he has no particularised grounds and he has no legal assistance to put forward his case.  It is apparent from the history of events that he has had ample time to explore the possibilities of obtaining legal advice and representation.  Indeed, the material he presented on 27 February 2001 indicates that he was conscious of the desirability of that course. 

8. It seems to me that the respondent is ultimately correct in submitting that there is no advantage to be gained by any further adjournment of this matter and certainly no adjournment of the length sought.  From the Court’s point of view it is necessary that the applicant face up to the fact that he has a case which must be presented and the undoubted difficulties he is suffering, and the sympathy that that engenders, is not a proper basis for allowing a case to simply go into limbo.  In view of the history of the matter and, in particular, in view of the failure of the applicant to properly particularise the case, I propose to hear it either today or at a mutually convenient time next week.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             13 June 2001

The Applicant was self-represented
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 June 2001
Date of Judgment:	8 June 2001