SZWAZ v Minister for Immigration

[2016] FCCA 2209

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAZ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2209

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons provided for inability to proceed with hearing – whether there would be any utility in granting adjournment.

Applicant: SZWAZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 233 of 2015

Judgment of: Judge Manousaridis

Hearing date: 29 July 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter.

Solicitors for the Respondents: Mr T Galvin of Minter Ellison

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 233 of 2015

SZWAZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 5 March 2015 this matter came before a Registrar of this Court on a first court date.  On that day the Registrar made directions and listed the matter for hearing before me today, that is to say at 10.15 am on 29 July 2016.  The applicant appeared without any legal representation. 

2. As is my usual practise, I commenced the hearing by explaining to the applicant the procedure that would be adopted. After I identified the relevant documents that had been filed by the applicant I asked the applicant whether he had any further documents to tender.  In response to that question the applicant indicated that he had a medical certificate that he wished to tender.  That medical certificate was tendered.  It is a medical certificate issued by a medical practice at World Square Medical Centre at World Square dated 28 July 2016.  It stated that the applicant “[h]as been diagnosed with spinal tuberculosis, in March 2016, and was treated”, and that the applicant had been diagnosed “[f]or hepatitis C, in December 2014, and also has hypthyroidism, since 2015.”.

3. In the course of the applicant’s tendering the medical certificate it became apparent that the applicant was seeking an adjournment.  In broad terms, the ground of the adjournment was that the applicant has been, and continues to suffer from various medical conditions, which have prevented him from engaging a lawyer.  He submitted that his ongoing treatment would prevent him from obtaining a lawyer for the next six to nine months, and he sought an adjournment for that period of time to enable the applicant to receive medical treatment.

4. Although I did not understand the applicant so to say, Mr Galvin, who appeared for the Minister, understood the grounds on which the applicant sought the adjournment, to be that due to his medical condition the applicant has been unable to prepare his case, and that his medical condition prevents him from participating in today’s hearing.  I will similarly treat the application for an adjournment, by the applicant, to rely on those two grounds. The application for an adjournment is opposed by the Minister.

5. From the bar table the applicant said that he had been diagnosed with spinal tuberculosis.  He mentioned depression.  He also mentioned that he was receiving medical treatment.  He referred to an underactive thyroid and to his having hepatitis C.  He said that he was, therefore, “hospitalised for a long period of time”, and that he had no opportunity to engage a lawyer.  He said that he was suffering from these conditions when he commenced these proceedings on 2 February 2015.

6. In response to my question about the period for which the applicant was hospitalised, he answered that he was hospitalised on three occasions. The first occasion was for one week, the second occasion was for between two to three days, and the third was for one day.  I asked the applicant why, given that at least 17 months have passed between the day on which he filed his application and the hearing today, he has been unable to obtain the services of a lawyer, given that, on what the applicant said from the bar table, the applicant, during this period, was in hospital for no more than 11 days. The applicant gave various reasons, but, essentially, they were that he was in pain.

7. When I mentioned to him that whatever medical condition he was suffering from did not appear to prevent him from preparing his application the applicant said that the application was not prepared by him, but that he had arranged, through a person, for another person to prepare that application.  He said that he had provided documents for that person to prepare his application.

8. I asked him why he was in a position to engage a person, who was a non‑lawyer, to prepare an application, and yet he said he was not able to do the same thing with a lawyer,  that is to say, engage a lawyer, and provide that lawyer with relevant documents. The applicant gave a number of responses. One was that to engage a lawyer would have required him to spend a lot of time with the lawyer, and his pain prevented him from doing so. Another was that he was depressed and he was not in a mood to talk to a lawyer.

9. As I have already noted, the Minister opposes the granting of the adjournment.  The principal ground on which the Minister opposes that adjournment turns on the nature of the medical evidence the applicant has adduced.  I will turn to that evidence.  I have already mentioned the medical certificate dated 28 July 2016. That document appears to be based, at least in substantial part, on some other documents which the applicant tendered.

10. One is a letter issued by the Liverpool Health Service, dated 4 April 2016.  It refers to the applicant having presented himself to the hospital on 29 March 2016, with worsening back pain and difficulty mobilising. It refers to the background of a recent admission under neurosurgery.  It also refers to the applicant’s being admitted, in relation to neurosurgical issues, on 23 March 2016, and that he had been discharged on 26 March 2016 in relation to that.  The document then appears to refer to the applicant’s being discharged on 4 April 2016. That document notes on page 1, under the heading Principal Diagnosis, the words “positive for tuberculosis”, in relation to the “left psoas abscess (positive for tuberculosis), discitis.” The document also contains the following: “October 2014: Previously had Hepatitis C genotype 3 – not detected February 2015” and also “? Hyperthyroidism”.

11. There is also included in the medical evidence the applicant provided what appear to be clinical notes dated 1 April 2016, and these appear to relate to the period the applicant spent at Liverpool Hospital after his admission on 29 March 2016.  The final document is one titled Nursing Discharge. It is unclear precisely what this document purports to disclose, although it would appear that it is a document that was created in response to the applicant undertaking the tasks set out under the heading “Discharge Plans” referred to in the letter from Liverpool Hospital dated 4 April 2016. Under the heading “Discharge Plans” reference is made to the applicant’s follow‑up with his general practitioner, and for the general practitioner to review patient for new surgical follow‑up. In any event, the Nursing Discharge document does not appear to refer to any medical condition. 

12. Mr Galvin, for the Minister submits that the medical evidence does not support the proposition that the applicant is suffering from any medical condition which would prevent him from representing himself today. The way it was put is that the medical evidence does not establish, or is incapable of establishing, that the applicant cannot undertake activities required in daily life. Mr Galvin also submitted that the medical evidence does not support the proposition that during the 17-month period, between the day on which the applicant filed his application and today’s hearing date, prevented him from preparing for this case or from engaging a lawyer. Mr Galvin submitted that the reasons the applicant gave, for his inability to engage a lawyer, are implausible. Finally, Mr Galvin submitted that the applicant has not demonstrated that there would be any utility if I were to grant the adjournment the applicant seeks.   

13. In that regard I did ask the applicant how he believed his case would improve if I were to grant an adjournment.  The applicant said that it would give him an opportunity for his lawyer to consider his case and perhaps amend his grounds of application. He also said it would give him an opportunity to obtain the transcript of the hearing before the Tribunal. There may have been mistranslations of answers he had given. When I asked him whether he could tell me what aspects of the hearing before the Tribunal were mistranslated, or not properly translated, the applicant could not tell me. He said that he would be only able to do that after he reviews the transcript. Mr Galvin submitted that the applicant’s submissions, in that regard, merely pointed to speculation that a lawyer, armed with a transcript, might be able to amend the grounds of application in a manner that would improve the applicant’s prospects of success.   

14. Applications for an adjournment give rise to the exercise of a discretion by the Court.  The guiding and overriding consideration is the interests in the administration of justice. However, there are at least two issues that the Court normally addresses when it considers whether to grant an adjournment.  One is why the party, in this case the applicant, seeks the adjournment.  That boils down to an inquiry about why the applicant says he is not in a position to conduct the hearing.  To the extent no adequate explanation is given, or none is available, that is a factor weighing against the granting of an adjournment. The second consideration is whether there would, in any event, be any utility in the granting of an adjournment. I, first, turn to whether the applicant has given an adequate explanation.  In my opinion he has not. 

15. While I accept that the applicant has suffered from the medical conditions referred to in the medical evidence he has submitted, and while I am prepared to accept what the applicant said to me from the bar table that he experiences headaches, these do not appear to me to go anywhere near explaining why the applicant has not been able to obtain a lawyer.  In that regard there are a number of matters that are relevant. First, the applicant has engaged a person, albeit not a legally qualified person, to prepare his application.  As he informed me, the applicant provided documents for the purpose of his application to be prepared.  There is nothing that could reasonably explain the applicant’s not having been in a position to have done the same thing in relation to a lawyer.  The reasons the applicant gave for his not doing that are utterly implausible.  I did mention that one of the reasons he gave was that he suffered from depression, or he says he was not in the mood. There is no medical evidence that the applicant suffers from any depression, in any clinical or medical sense. It seems to me the applicant simply chose, for whatever reason, to engage the services of a non‑lawyer rather than the services of a lawyer, and that choice had, and has, nothing to do with any medical condition the applicant suffers from. 

16. The second relevant matter is the fact that the applicant himself appeared at the first court date.  There is no suggestion that, on the first court date, the applicant said that his medical condition was such as to hinder or prevent him from pursuing the case. Further, the applicant himself has appeared before me.  The applicant, I think, says he suffers from a headache even today, or is at least under medication to deal with pain, but as at the time I am reading this judgment, or delivering this judgment the matter has been going on for some two hours. The applicant has manifested no difficulty in his ability to understand what is going on in the proceeding, what is being said to him and to make submissions.

17. Also relevant is what is apparent from medical certificates and medical records he has tendered. The medical certificate of 28 July 2016 indicates that the applicant visited the relevant doctor, and consulted him.  That indicates that the applicant, at least as at 28 July 2016, has mobility.  Also relevant is the fact that the applicant appears to reside in Queensland, and, as I understood him, he has travelled from Queensland for the purposes of today’s hearing. That, too, demonstrates mobility on his part; and, of course, there’s always the availability of communication via email or correspondence, if the applicant truly wished to obtain the services of a lawyer.

18. I then turn to whether there is any utility to the granting of an adjournment.  There are two things to note about this.  First, the applicant has put forward nothing which would indicate that his prospects of succeeding on this application would be improved if an adjournment is granted.  As Mr Galvin submitted, the matters to which the applicant relied are purely speculative.  The second matter to note is that the applicant is seeking six to nine months, but in reality is seeking an open‑ended adjournment.  It is conditional on the applicant overcoming what he claims to be his medical conditions. There is no certainty that if I were to grant the applicant the six to nine months that he would not then make the very same application for an adjournment.

1. For these reasons, therefore, the application for an adjournment is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 August 2016