SZVLX v Minister for Immigration

[2015] FCCA 2688

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2688

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether applicant has given reasonable explanation for not being in a position to conduct the hearing – whether medical conditions of the applicant are such as would prevent him from effectively participating at the hearing – whether there would be any utility in an adjournment being granted – application for adjournment refused.

Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZVLX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3123 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 September 2015

Delivered at: Sydney

Delivered on: 28 September 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3123 of 2014

SZVLX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 11 November 2014, the applicant filed with this Court an application seeking judicial review of a decision made by this Refugee Review Tribunal (Tribunal) on 10 October 2014 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.  On 4 December 2014, the matter came before me on a first court date.  On that occasion, on the application of the applicant and with the consent of the first respondent, the matter was adjourned indefinitely.  The purpose of the adjournment was to await the outcome of the appeal to the High Court that was lodged in relation to the decision of the Federal Court in WZAPN v Minister for Immigration and Border Protection.[1]

   [1] [2014] FCA 947

2. On 17 June 2015, the High Court delivered its reasons for decision in WZAPN.[2]  As a result of that decision, an application was made to have this matter relisted before me, which occurred on 7 July 2015.  On that day, the matter was set down for hearing before me at 10.15 am on 28 September 2015.  In the afternoon or during the course of the day on 25 September 2015, the Court received a letter addressed to me apparently written on behalf of the applicant. 

   [2] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22

3. In that letter the Court was asked to adjourn the applicant’s case to give the applicant more time to find legal representation and to improve his mental health.  The letter stated that the applicant does not have a lawyer and he has not been able to read or understand the written submissions that had been sent to him by the first respondent’s representative.  The letter also stated that he has no knowledge or understanding of Australian law and is not in a position to be able to argue his case without assistance. The letter states the applicant has been in detention since May 2014 and is in great distress.  The letter claimed the applicant suffers from intrusive memories of past trauma experiences, he has a lot of trouble sleeping and problems with memory and concentration that would make it difficult for him to understand what is going on in Court.  He also mentioned that the case that is before this Court is causing him to feel stress inducing desires of not wanting to live.  The letter claims it would be therefore in the interests of justice for the Court to adjourn his case, and also that I refer the case to a pro bono lawyer.

4. This morning, according to my understanding, the Court received another letter, this time from a John Payne from an organisation known as New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).  Mr Payne in that letter states that he is a counsellor with STARTTS and that he has attended four sessions of counselling with the applicant.  He states in that letter that the applicant does not have legal representation and due to his very limited English has not been able to understand official correspondence he has received in relation to the case and that he does not have any knowledge of Australian law and is not in a position to represent himself at the hearing. Mr Payne also referred to psychological vulnerabilities the applicant has and Mr Payne expressed concern about how the applicant would deal with the hearing without representation and support.  Mr Payne referred to the applicant having intrusive memories of past torture and trauma, insomnia, nightmares, high levels of anxiety and a variety of somatic complaints which appear to be related to chronic stress.  He also refers to suicidal tendencies that the applicant has expressed.

5. At the hearing before me the applicant did apply for an adjournment.  He appeared before me, as would be expected, with the assistance of an interpreter.  He said he did not have an opportunity to obtain legal advice, that he had asked many people who have not been able to assist him in any way.  He referred to his fear that on his return to Sri Lanka he will be required to pay fines.  He said that there is no guarantee for his life if he returns to Sri Lanka.  He indicated that if he were allowed to return into the community on humanitarian grounds, he would be able to obtain the money to pay for the legal advice and assistance he has been unable to date to obtain. He said that he has a lot of problems and that his life is in danger because of his medical condition.  In that regard, the applicant tendered into evidence a rather voluminous bundle of documents which relate to his medical and mental condition. 

6. The material undoubtedly indicates that the applicant does have medical conditions, particularly in relation to his liver and levels of cholesterol.  The material also indicates that he is depressed and anxious. There is a reference to some of the material, to his anxiety and stress being caused by the very uncertainty of these proceedings and also in relation to a criminal matter which has now been finalised.  In that regard, I refer to a report, for example, of 24 October 2014 where the applicant is reported as being worried and anxious.  He informed the counsellor of the rejecting of his case by the IRT, which appears to be a reference to the RRT (Refugee Review Tribunal). 

7. The first respondent opposes the application for an adjournment.  Counsel makes two submissions.  One is that the applicant has had a sufficient opportunity to obtain legal assistance in relation to his case and that he has diligently sought that assistance; and, although it is unfortunate that the applicant has been unable to obtain legal assistance, that by itself should not lead the Court to grant the adjournment sought by the applicant, given the opportunity the applicant has had to obtain legal assistance. Secondly, although the first respondent accepts that the material tendered by the applicant indicates that the applicant has problems, including his being depressed and anxious, there is nothing in that material which indicates that he is not capable of understanding what occurs at a hearing.

8. In applications for adjournments, being an application which calls for the exercise of the Court’s discretion, there are a number of factors that the Court takes into account.  One is whether a reasonable explanation has been given for the party wishing to apply for the adjournment not being in a position to proceed with the case.  The applicant has given a reasonable explanation insofar as he has been unable to obtain legal assistance.  I am not satisfied, however, that the medical material on which the applicant relies indicates that the applicant would be unable to conduct the case because of any medical condition that he may suffer from.  The material certainly doesn’t satisfy me that that is the case, and I have been unable to perceive in anything that the applicant has said or done in my presence today to give rise to any doubt of his ability to participate in the hearing.  That participation, of course, is in his capacity as an unrepresented litigant.  That is no doubt a great disadvantage to him but that disadvantage does not flow from any medical or mental difficulty he may suffer from. 

9. Another matter, and in my view the most important matter to consider, is whether there would be any utility in granting the applicant an adjournment.  The question is what will occur if an adjournment is granted.  More particularly, if an adjournment is granted, is there any reasonable prospect that when the matter comes back before the Court for hearing the applicant will be in any different position than the position in which he finds himself today?

10. When I asked the applicant what prospects he believed he had in being able to obtain legal representation, the only answer he gave is that if he were to be released into the community he would have the opportunity to work and then raise the money sufficient for him to engage legal representation.  It has not been suggested that I have power on this application to release the applicant into the community and there is no application for any such order.  Given that circumstance, there is nothing before me which could indicate the applicant would have any reasonable prospects of being able to secure a legal representation to assist him in his case. 

11. Secondly, to the extent any of the medical conditions and mental conditions revealed in the reports, contrary to what I have found, do affect his ability to represent his case in any way, there is nothing that has been put before me to indicate that the applicant’s disabilities would in any way be remedied.  But as I have found, there is nothing to indicate that the applicant cannot represent himself. 

12. The applicant has also requested that I refer the matter to a pro bono lawyer.  That too is a matter that falls within the discretion of the Court. One factor, and probably the determinative factor, is whether there is anything in the material before the Court which might suggest that the applicant would be assisted by the Court making such an order.  I will not now make an order whether the matter should be referred to a pro bono lawyer.  I propose to make that decision after I hear the matter. That is to say, therefore, that the application for an adjournment is dismissed but I will consider, when considering my reasons, whether a pro bono lawyer should be appointed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 1 October 2015