FEDERAL COURT OF AUSTRALIA

Hundal v Minister for Immigration and Border Protection [2019] FCA 142

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s application for an adjournment of today’s hearing 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 fixed in the sum of $5,000.

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 appellant is a national of India who came to Australia on a Student visa on 17 July 2008. Since that time, he has had a succession of further Student visas.

2    On 11 July 2014, the appellant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa. That application was refused by a delegate of the Minister on 18 September 2014 and that decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 8 September 2015.

3    However, on 12 July 2016, the Federal Circuit Court (the FCC) made orders by consent setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.

4    A differently constituted Tribunal (the Second Tribunal) affirmed the delegate’s decision on 28 October 2016. The appellant then applied to the FCC for judicial review of the Second Tribunal decision but that application was dismissed on 27 August 2018: Hundal v Minister for Immigration [2018] FCCA 2364. The appellant now appeals against that decision.

5    The appellant represented himself at today’s hearing, as he did at the hearings in the Tribunal and in the FCC.

The application for adjournment

6    At the commencement of the hearing, the appellant applied for an adjournment of the hearing for a period of approximately six months. That application had been foreshadowed in an affidavit of the appellant filed in the Court on 26 October 2018. The substantive part of that affidavit was as follows:

I wish to say following in support for my adjournment. I am presenting matter in Honourable Court. One of our known overseas advocate (Mr Shalinder Kumar) is helping me in preparation of all the material from initial stage till now in regards to this case.

Unfortunately, he is not available to read, prepare & send all material till June 2019. And, without his help I can’t present my case (as he knows all whereabouts of this case from 2014).

I am already patient of depression & anxiety & have couple of strokes in past. I can’t handle much stress.

So please adjourn hearing date till June 2019. I will be highly thankful to you.

7    In a letter to the Court dated 16 November 2018, the appellant said:

I want matter to be adjourned on compassionate grounds. As is it nearly impossible for me to prepare case till these hearing dates.

Reason stated in affidavit attached. I will be highly thankful for your concern.

The attached affidavit is the same affidavit filed on 26 October 2018.

8    On 8 January 2019, the appellant sent an email to the Court, the substance of which stated:

I would like to postpone this hearing as my lawyer is overseas and it’s hard for me to represent my side without his guidance and notes.

9    The appellant appears to have been prompted to send that email by the Court’s email to the parties on 3 January 2019, informing them that the appeal was listed for hearing today.

10    As the Minister did not consent to the adjournment, my Associate sent an email to the parties informing them that the application for the adjournment would be heard at the commencement of today’s hearing. In addition, my Associate informed the parties that they should be prepared to proceed with the hearing of the appeal in the event that an adjournment was refused.

11    On 1 February 2019, the appellant sent an email to my associate, the substance of which stated:

I would like to postpone this hearing on medical grounds.

I had already submitted affidavit and my Doctor certificate to Registry of Adelaide. Also, I am attaching that certificate with this mail.

12    In an affidavit filed on the same date, the appellant said:

I am unable to concentrate on [the] case due to some medical conditions. Psychologist ‘Geof Boylan-Marsland’ tried to explain it in his letter, which is attached with the affidavit.

13    Mr Boylan-Marsland’s letter of 25 January 2019, which was attached to both the affidavit and email of 1 February 2019, is addressed to the Federal Court. It provided:

Dear Officer

Re: MR AJAY PAL SINGH HUNDAL – CASE NO: SAD217-2018

I am writing this letter for Mr Ajay Pal Hundal following a review of his current circumstances.

Mr Hundal is a 39-year-old man who reported having difficulty preparing and comp[l]eting his application due to a high level of stress and anxiety. A brief psychological assessment was undertaken using the Symptom Checklist-90-R (SCL-90-R: Derogatis, 1993), which is a 90-item self-report questionnaire that measured Mr Hundal's current psychological symptoms. His responses indicated the presence of some psychological symptoms/distress with an elevated Global Severity Index and Positive Symptom Distress Index. His scores on the primary symptoms measure showed that Mr Hundal was experiencing significant symptoms of depression, anxiety and stress with symptoms including nervousness, tension, feeling fearful and trapped, with poor concentration, lack of motivation, low mood and feeling negative. I believe that this has significantly impacted on his ability to prepare his submission to the Court.

Based on Mr Hundal’s clinical presentation and psychological assessment, I would recommend that Mr Hundal be granted an extension of 6 months for his submission and upcoming hearing.

14    My Associate responded to that letter by repeating to the parties that the application for the adjournment would be heard at the commencement of the hearing and reminding them that they should be prepared to proceed with the hearing of the appeal, in the event that the adjournment was refused.

15    As is apparent, the appellant seeks the adjournment on two bases: first, in order to allow time for Mr Kumar to prepare submissions on his behalf; and, secondly, on the basis set out in Mr Boylan-Marsland’s report. The Minister opposed the grant of the adjournment.

16    It is for the appellant to satisfy the Court that an adjournment of the hearing is appropriate. A number of matters bear on the question of whether the Court should exercise the discretion to do so.

17    Naturally, the ability of a litigant to represent himself or herself at a hearing by reason of ill health is a material consideration. That is especially so when the ill health has developed at short notice without the litigant having had a reasonable opportunity in which to make alternative arrangements. Procedural fairness will usually require that an adjournment be granted in circumstances of that kind. That is not so obviously the case when the medical condition upon which the litigant relies is one of long-standing, as the litigant in that circumstance has had the opportunity to make alternative arrangements.

18    Courts consider it appropriate to guard against the too ready grant of adjournments and require a proper basis to be shown. That is because the courts also have regard to the prejudice which an adjournment can cause to a respondent and to the public interest in the proper administration of justice. Amongst other things, the too ready grant of an adjournment can result in delays in the proceedings of other litigants being heard. In the present case, the Minister did not contend that he would suffer any prejudice if an adjournment is granted, but the second consideration, namely, the impact on the public interest in the proper administration of justice, remains a relevant consideration.

19    The Minister drew attention to the fact that the progress of the appellant’s applications in the Tribunal and in the FCC, has been marked by applications for adjournments by the appellant for health reasons. The documents in the appeal book bear out that submission.

20    On 13 July 2015, the appellant sought an adjournment of the hearing by the Tribunal on the basis that he was under treatment for acute depression “due to death of my family member & other suddenly occurred (sic) family problems”. The appellant supported that application with a short note from a General Practitioner, Dr Fitzgerald:

I have been treating this young man since 2011. He has an anxiety disorder based on life and relocation difficulties.

In April this year he travelled back to India and has been affected by a grief reaction to his grandmother’s death. This anxiety depressive state is now settling, but chronic background anxiety state continues.

21    In addition, the appellant provided a note from a General Practitioner in India who confirmed that he had treated the appellant for acute depression following his grandmother’s death on 5 April 2015.

22    The Tribunal acceded to the appellant’s request and adjourned the hearing to 8 September 2015.

23    On 27 August 2015, the appellant sought an adjournment of the hearing fixed for 8 September, saying “I am unable to present case from my side, as my doctor has strictly prescribed me not to take any kind of pressure on mind as it can worse[n] my health (neither physically nor phone)”. He supported that request with a letter from a psychologist, Ms Turner, who had seen him on 5 August 2015.

24    The Tribunal refused the application for the adjournment and the hearing proceeded on 8 September 2015.

25    In February 2017, the appellant sought and obtained an adjournment of the hearing in the FCC. In support of that request, he provided a note from a General Practitioner, Dr Gouskos, the substance of which said:

I saw him today, he has developed headaches, insomnia, anxiety awaiting his appearance in court. He has previously been treated for depression. He is currently not fit to appear in court. He should be formally assessed by a psychiatrist/psychologist.

26    The FCC adjourned the hearing to 8 November 2017 and, later, on the basis of a medical certificate and hospital discharge summary, adjourned the hearing further to 10 November 2017.

27    Accordingly, it is apparent that the appellant has had multiple adjournments of hearings on the basis of his health.

28    There is evidence that the appellant suffers from anxiety and, at least from time to time, from depression. There is, however, no medical evidence that the appellant has previously suffered strokes, as he has claimed. Moreover, there is no evidence that the appellant is currently in receipt of treatment for anxiety or depression. In particular, there is no indication in the letter from Mr Boylan-Marsland that he is treating the appellant, and it appears that the appellant may have consulted him only for the purpose of obtaining a certificate to support the application for the adjournment.

29    It is also to be noted that Mr Boylan-Marsland does not have medical qualifications. Further, he describes his psychological assessment of the appellant as “brief” and it is apparent that it is very much based on the responses which the appellant gave to a self-reporting questionnaire. Courts have previously expressed reservation about reliance on the results of such questionnaires when the answers have been given in the medico-legal context. That is because of the possibility of the person’s responses having been influenced by suggestibility or self-interest: see Peterson v Commonwealth of Australia [2008] VSC 166 at [231]; Sutton v Anderson [2014] FamCA 215 at [150].

30    Nevertheless, I proceed on the basis that there is some evidence that the appellant’s functioning may be affected by anxiety and/or depression. That, however, is not conclusive of the application for the adjournment. It is pertinent that the condition or conditions from which the appellant suffers are not of recent onset. In fact, he referred to his health as a reason for a postponement in his affidavit of 26 October 2018. This means that he has had adequate time in which to make alternative arrangements for the presentation of submissions, whether written or oral.

31    In this respect, it is appropriate to refer to the original request of the appellant to have the hearing adjourned because his advocate is overseas. The appellant confirmed that the advocate is the same legal adviser in India whom he had, on 21 March 2017, told the FCC he would have prepare submissions on his behalf. The appellant says that the advocate is a lawyer and that he comes to Australia from time to time but does not know if he is admitted to practise in Australia. In those circumstances, I do not consider the appellant’s desire to avail himself of Mr Kumar’s services to be a proper basis for an adjournment. In any event, the appeal was commenced on 12 September 2018, and the appellant has had sufficient time in the five months which have elapsed since then to avail himself of Mr Kumar’s assistance, or indeed, the assistance of some other advocate, if he so wished.

32    The progress of the appellant’s appeal in this Court should not be determined by reference to the availability of an advocate in India.

33    Another relevant consideration is the utility in the grant of the adjournment. There are two aspects to this. The first is the absence of any evidence to suggest that the appellant’s health position will be any different in six months’ time than it is now. The second is that of whether any of the appellant’s grounds of appeal are reasonably arguable, such that it could be said that he may be prejudiced if not given the opportunity to develop them in submissions.

34    This requires attention to the basis upon which the Second Tribunal dismissed the appellant’s application and the basis upon which the FCC dismissed the application for judicial review.

The decision of the Second Tribunal

35    The Second Tribunal noted that, subject to some limited exceptions which are not applicable in the appellant's case, the criteria applicable to each form of Student visa capable of being encompassed by his application required that, at the time of the decision, he be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course and of a type prescribed under reg 1.40A Migration Regulations 1994 (Cth) (the Regulations) for the subclass at the time of application. The Second Tribunal referred in this respect to regs 570.232, 571.232, 572.231, 573.231 574.231 and 575.231 in Sch 2 to the Regulations. Those Regulations were amended with effect from 1 July 2016, but the amendments were not applicable in the appellant’s case.

36    In the appellant’s case, it is Subclass 572 – Vocational Education and Training Sector, which is particularly pertinent.

37    Regulation 572.222 required that an applicant for a Student visa (and the regulations concerning the other forms of Student visa contained a corresponding requirement) give to the Minister a certificate of enrolment relating to the applicant undertaking a course of study of an approved kind. This requirement was subject to an exception, which is not presently applicable.

38    The appellant had been informed of this requirement and had been requested to provide the appropriate certificate of enrolment seven days before the Second Tribunal hearing. He did not provide such a certificate. Instead, at the Second Tribunal hearing, the appellant gave evidence that he did not have current enrolment or an offer of enrolment in any relevant course of study, that he did not have any current certificate of enrolment for any relevant course of study, that he had not studied in recent years, and that he had not been willing to pay large fees to education providers if he did not know that he would be granted a visa. The Second Tribunal recorded that the appellant had maintained that position despite being told that the provision of a certificate of enrolment, which had not been cancelled and had not expired, was a mandatory requirement for the grant of a visa.

39    In these circumstances, it is not surprising that the Second Tribunal found that the appellant had no relevant enrolment or offer of enrolment in a relevant principal course of study and did not satisfy the requirements of reg 572.231 and its counterparts. Furthermore, it is not surprising that the Second Tribunal found that the appellant did not satisfy the requirement in clause reg 572.222 and its counterparts, that he provide a current certificate of enrolment.

40    The Tribunal noted again that none of the exceptions to these requirements were applicable in the appellant's case. For those reasons, the Second Tribunal affirmed the delegate's decision.

41    I mention that the appellant said today that, contrary to the evidence which was recorded by the Second Tribunal in its reasons, he had, in fact, been enrolled at the time of the Tribunal decision and that he had told the Tribunal about that. That claim is not borne out by a perusal of the transcript of the proceedings before the Second Tribunal, nor has it been supported by any evidence from the appellant, whether in the Tribunal or in the FCC or, for that matter, in this Court.

The FCC judgment

42    The appellant’s amended application for judicial review in the FCC contained three grounds:

1.    Tribunal denied the procedure of fairness as Tribunal didn’t adjourn the hearing on another time due to doctor’s appointment at same time.

2.    Given too short notification.

3.    Two matters been heard at same time and too confusing.

43    The FCC Judge rejected the claim of a denial of procedural fairness contained in ground 1. The Judge did so because he held that the Second Tribunal had not been called upon to exercise its discretion under s 363(1)(b) Migration Act 1958 (Cth) to adjourn the proceedings. The transcript of the hearing before the Second Tribunal bears out this conclusion of the Judge, as it indicated that the appellant had told the Tribunal that he would manage if his participation in the hearing meant that he could not keep the appointment he had with a doctor on the same afternoon. It had of course been open to the appellant to arrange that appointment for another time.

44    The FCC Judge rejected the claim that the appellant had had “too short notice” of the Second Tribunal hearing, noting that the Tribunal had informed the appellant of the hearing on 26 October 2016 by an email sent on 22 September 2016. The Judge noted that that notice had given the appellant more than the period of notice prescribed by s 360A of the Migration Act and reg 4.21(4) of the Regulations, namely, 14 days. In relation to the notice having been given by email, the Judge noted, correctly, that, in July 2016, the appellant had requested correspondence from the Tribunal be emailed to him. Furthermore, the Tribunal had sent reminders of the hearing to the appellant by text messages to his mobile phone on 19 and 25 October 2016.

45    The FCC Judge also noted that the appellant had not indicated how he had been prejudiced by the amount of notice given to him. Even now, the appellant has not provided evidence that, had he been given greater notice, he could have produced evidence of a requisite enrolment.

46    The FCC Judge found that there was no substance in ground 3. That complaint had its genesis in the fact that the Second Tribunal had listed two applications, that of the appellant and that of an unrelated applicant, for hearing at the same time on the basis, it seems, that they raised identical issues. However, early in the hearing, the appellant complained that the process was too confusing because the other applicant required an interpreter. The Tribunal member then desisted with a joint hearing and, after completing the hearing of the other applicant’s application in the appellant’s absence, resumed the hearing of his application.

47    The Judge noted that, prior to terminating the initial joint hearing, the Second Tribunal gave the appellant some brief advice about Direction 53 issued by the Minister and the matters which might be relevant to a successful prosecution of his application. The Tribunal member encouraged the appellant to read Direction 53. With respect to this ground, the FCC Judge concluded:

[20]    There can be no suggestion that the applicant was not afforded a meaningful opportunity for a hearing under s 360 of the Act. An objective reading of the informal transcript of proceedings after the member had called him back does not suggest that he was confused at any stage.

48    In my view, the transcript of proceedings bears out the appropriateness of this conclusion of the FCC Judge.

49    Finally, the FCC Judge referred to the futility of the application for review. He said:

[21]    If I am wrong with respect to the dismissal of any of the above grounds I would decline to grant the relief sought. To do so would be futile. The applicant was unable to satisfy the relevant criterion for the visa and affirmation of the delegate decision was an inevitable consequence of the review.

The appeal to this Court

50    The appellant’s Notice of Appeal to this Court contains the following grounds:

Federal Circuit Court made an error in conclusion of my most prior ground “adjournment of date” as it was MRT who adjourned date. Also it made error in doctor certificate as it was doctor appointment, which was not successful due to MRT hearing at same time.

51    At today's hearing, the appellant confirmed that the references to the MRT in these grounds were intended to be references to the Second Tribunal.

52    As I understood the submissions of the appellant with respect to the First Ground, it is a complaint that the FCC Judge had misunderstood that the appellant was complaining about the adjournment by the Second Tribunal of the hearing of his application, which occurred part-way through the hearing on 26 October 2016.

53    The appellant said that he had been prejudiced by that interruption to the hearing because he had been ready at the nominated time for the hearing, but had to wait until the hearing of the other person’s application had been completed. During the period of waiting, he developed a headache, such that he had been inconvenienced when the hearing of his own application resumed.

54    In my view, it is plain that the FCC Judge was not subject to the misapprehension which the appellant imputes to him.

55    I have already referred to ground 1 which the FCC Judge addressed and, plainly enough, that raised a complaint that the appellant had been denied procedural fairness because the Tribunal had not adjourned the hearing to another time due to a doctor’s appointment at the same time. It was not a complaint of a denial of procedural fairness because the Tribunal had interrupted the hearing.

56    Accordingly, that ground of appeal to this Court cannot be said to be reasonably arguable.

57    The second aspect of the ground of appeal is that the FCC Judge had erred with respect to a doctor’s certificate because, as I understood the complaint, the Judge should have given greater weight to the fact that there had been an interruption to the Tribunal hearing while the Tribunal completed the hearing of the other applicant. This was the subject of the appellants ground 1 raised before the FCC.

58    In my opinion, it is not reasonably arguable that the FCC Judge made an error in that respect. The FCC Judge referred to the transcript of the hearing, and noted in particular the exchange which had occurred between the appellant and the Tribunal member with respect to the temporary cessation of the hearing. It cannot reasonably be argued that some denial of procedural fairness of a kind giving rise to jurisdictional error occurred by reason of the Tribunal member having commenced, but then terminating, a joint hearing, and proceeding to hear the applications of the two individual applicants separately. I note again that the appellant had told the Tribunal that, despite having a doctor’s appointment, he could manage.

59    Many of the matters upon which the appellant relied in his submissions in support of these grounds amounted to no more than assertions from the Bar table. It is noteworthy that the appellant did not seek to adduce any evidence before the FCC, and it was appropriate for the FCC Judge to determine the application on the basis of the materials which were before him.

60    This means, in my opinion, that none of the appellant's grounds are reasonably arguable. I also consider that the appellant has not shown arguable error in the FCC judgment on the grounds advanced in the FCC.

61    Further, and in any event, like the FCC Judge, I consider that the application for judicial review was futile given the obvious inability of the appellant to satisfy one of the primary criteria for the grant of the visa which he sought, namely, enrolment, or at least an offer of enrolment, in a relevant principal course of study. In saying that, I am not overlooking the appellant's submission from the Bar table today that, at the time of the Second Tribunal hearing, he had in fact, been enrolled in a course of study. I observe that that submission is inconsistent with the evidence which the appellant gave on more than one occasion in the proceedings before the Second Tribunal on 26 October 2016. That evidence was to the effect that the appellant was not studying and, in fact, had ceased study before the Tribunal hearing occurred.

Conclusion

62    I return to the exercise of the discretion concerning the request of an adjournment. In my view, the futility of the application for judicial review and the appeal, together with the other matters which I have mentioned, count strongly against the exercise of the discretion in favour of the appellant.

63    The appellant has not shown that he will suffer detriment in the event of a refusal of an adjournment. Nor has he shown that he has not had a reasonable opportunity, despite the mental conditions from which he is said to suffer, to present either written or oral submissions to the Court. I refuse the application for the adjournment.

64    For the reasons which I have given in relation to the application for the adjournment, the appeal must also be dismissed.

Associate:

Dated:    15 February 2019]