FEDERAL COURT OF AUSTRALIA

CQH16 v Minister for Immigration and Border Protection [2018] FCA 672

ORDERS

THE COURT ORDERS THAT:

1.    The application for the adjournment is refused.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    The Court was to hear today an appeal against the decision of the Federal Circuit Court (the FCC) dismissing the Appellant’s application for a review of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 22 August 2016.

Application for adjournment

2    The Appellant, who is representing himself, has not appeared for the hearing and has not provided an explanation for his failure to do so. However, it may be because the Appellant, on the afternoon of 8 May 2018, filed an interlocutory application and a supporting affidavit. By [1] of the interlocutory application, the Appellant sought the adjournment of today’s hearing. Paragraph [2] stated:

Applicant is mentally unstable and depressed. Hearing should be conducted once applicant is in right mental state to response [sic] to case.

3    In the supporting affidavit the Appellant deposes as follows:

2.    I am depressed and mentally unstable.

3.    I request court to adjourn hearing till I am in right state of mind to understand the case and respond to it.

4    In a handwritten statement attached to his affidavit, the Appellant then deposed:

Hi This is [the Appellant] I have a hearing on 10th May 2018 in the Federal Court but I am unattended [sic] to hearing in the court because I am in depression for few months and couple of years ago I lost my brother in a car accident and this effect [sic] in my life too that’s the reason I am giving medical certificate to the court. Because I am depressed and mentally unstable, I request court to adjourn hearing till I am in right state of mind to understand. I hope and understand my situation.

5    Contrary to what he said in this statement, the Appellant did not provide a medical certificate. Instead, he attached to his affidavit a letter from a Dr Michael Stacey, a General Practitioner, dated 2 May 2018. In that letter Dr Stacey certified that he had seen the Appellant on 2 May 2018 and continued:

Attended today saying that he has been depressed for months. He says this stems from the death of his brother in a motor vehicle accident in India 21 March 2018. He also tells me that he faces legal action in relation to his Visa in the Federal Court. In addition to fines incurred from a serious motor accident in 2016. He says that his unemployment has also impacted on his mental health. Today was the first occasion on which he has raised these issues. He denies any current suicidal thoughts.

6    As can be seen, there is an inconsistency between the Appellant’s statement that his brother died in a car accident a “couple of years ago” and the statement recorded by Dr Stacey that his brother had died on 21 March 2018.

7    The Appellant was told by a member of the Registry staff when he attended to file his interlocutory application that it would be heard today at 10 am. He was also told that he should serve the interlocutory application and supporting affidavit on the Minister, and it is apparent that he has done so.

8    The Minister opposes the application for the adjournment. Counsel submits that the Appellant has not shown a proper basis for the grant of an adjournment. He drew attention to the fact that the Appellant has not provided any evidence which would confirm the mental instability or depression on which he relies for his application, let alone that these conditions disable him or would compromise his ability to present his appeal.

9    The letter from Dr Stacey cannot be regarded as providing such confirmation because, in effect, it does no more than record the Appellant’s attendance on Dr Stacey on 2 May 2018 and the matters he reported to Dr Stacey. Dr Stacey does not provide any medical diagnosis. His statement that “[t]oday was the first occasion on which the Appellant had raised these issues” with him may imply that he had seen the Appellant previously but without the Appellant’s mental health having been raised in the consultations. Even if that inference not be appropriate, it is apparent that Dr Stacey does not provide any confirmation that the Appellant has a mental health problem, let alone one of long standing.

10    Dr Stacey’s letter cannot, in my opinion, reasonably be regarded as providing support for the view that the Appellant is mentally unstable or depressed to the extent that he is unable to participate appropriately in today’s hearing. There is no other evidence before the Court to that effect. As the Appellant has not attended, he is not a source of such evidence.

11    In the circumstances just described, I consider it appropriate to repeat the substance of the remarks which I made in Uppal v Minister for Immigration and Border Protection [2014] FCA 852. Hearings of the present kind are adjourned only when a proper basis for adjournment is established. The Court must have regard not only to the interests of appellants but also to the interest of respondents and of the public in the administration of justice being conducted efficiently and economically. The resources of the public and of the Court can be wasted if adjournments are granted without a proper basis. Courts are solicitous to those who are genuinely unable to attend or participate in a hearing by reason of ill health but that solicitude depends on good cause being shown. It is incumbent upon persons seeking adjournments on the basis of ill health in circumstances like the present to provide to the Court a proper basis upon which the discretion to adjourn should be exercised. That will often involve the persons attending at Court to make the application.

12    In the present case, I am not satisfied that the Appellant has provided a proper basis upon which the Court should accede to his adjournment application. That application is refused.

Summary dismissal of the appeal

13    The Minister applied, in the event that the adjournment application was refused, for the summary dismissal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) of the Appellant’s appeal. Rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) provides a corresponding power. The summary dismissal of an appeal is a significant matter and one which the Court does not order lightly. A number of circumstances indicate that the order sought by the Minister is appropriate in the present case.

14    First, not only has the Appellant not attended today, he has not complied with any of the orders made by the Court for the preparation of today’s hearing. In particular, he has not provided an outline of submissions or indicated in any other way an intention to prosecute the appeal.

15    Secondly, the Appellant did not attend the hearing in the FCC and that that hearing was conducted in his absence.

16    Thirdly, it is not apparent that the Appellant will suffer material prejudice in the event that the appeal is dismissed. His notice of appeal to this Court repeats in substance the grounds of his application to the FCC but with one additional line, namely:

Respected judge of Federal Circuit Court failed to realise the jurisdictional error in Tribunal’s decision.

17    A ground of appeal articulated in this way does not identify any particular error by the FCC Judge beyond an assertion that the Judge had failed to recognise the merit in the grounds upon which the Appellant had sought review in that Court. Grounds expressed in that way are unhelpful in identifying any matter which may be reasonably arguable.

18    The reasons of the Tribunal make it very apparent that the Tribunal member formed an adverse view of the Appellant’s credibility. It was on the basis of that assessment that the Tribunal considered that the Appellant had not established a well-founded fear of persecution in the event that he is returned to India.

19    It is not readily apparent that the Appellant has an arguable case of jurisdictional error in the Tribunal’s credibility assessment. The Appellant had been in Australia on student visas or bridging visas for just on five years before making his application for the protection visa. Further, he made that application only after he had exhausted all attempts to obtain a further student visa, including by ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth).

20    All these matters make it appropriate to accede to the Minister’s application that the appeal be dismissed by reason of the Appellant’s non-attendance.

21    The order of the Court is:

(1)    The application for the adjournment is refused.

(2)    The appeal is dismissed.

Associate:

Dated:    16 May 2018