Federal Court of Australia

ATE20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1659

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia, as it was formerly known, dismissing the appellant’s application for judicial review of a decision of the second respondent (Tribunal): see ATE20 v Minister for Immigration [2020] FCCA 1775 (Primary Judgment or J). The Tribunal, by its decision dated 23 January 2020, affirmed the decision of a delegate of the first respondent (Minister) to not grant the appellant a protection visa.

2    For the reasons that follow, I have concluded that the appeal must be dismissed.

B.    Background

3    The appellant is a citizen of Nepal. He is of Pahadi origin and is of Hindu ethnicity.

4    The appellant was born on 1 October 1983. He lived with his family in the village of Purkot in the Tanahu District of Nepal from his birth until approximately February 2011.

5    In approximately February 2011, the appellant moved to the city of Birgunj in the Parsa District and Terai region of Nepal to pursue employment opportunities. The appellant found employment as a cook in a hotel restaurant and bar in Birgunj.

6    In late 2015, the appellant left Birgunj because of unrest in that area from the Madhesi. According to a Department of Foreign Affairs and Trade (DFAT) Country Information Report dated 1 March 2019 (Country Information), the term “Madhesi” refers to “non-tribal, caste Hindus of Indian origin that live in the Terai”. The appellant claims that he was targeted by the Madhesi because of his Pahadi origin and threatened with sticks and told that he should leave the area.

7    Between late 2015 and late January 2016, the appellant resided for various periods in Purkot and Kathmandu.

8    On 23 January 2016, the appellant arrived in Australia on an entertainment visa (subclass GE 420) (GE 420 visa).

9    On 9 February 2016, the appellant’s GE 420 visa expired and, on this date, he applied for a protection visa (subclass 866) (protection visa).

10    On 15 July 2016, a delegate of the Minister (Delegate) refused the appellant’s application for a protection visa on the basis that there was no real risk he would suffer significant harm in India: see s 36(3) and s 36(5A) of the Migration Act 1958 (Cth). The appellant applied to the Tribunal for review of the Delegate’s decision.

11    In March 2019, the appellant injured his back when he lifted a pallet while he was working legally in a factory in Australia.

12    In July 2019, the appellant had surgery on his back in an attempt to resolve the injury that he had sustained.

13    On 20 December 2019, the appellant’s then migration agent provided a written submission to the Tribunal claiming that the appellant had been targeted, due to his Pahadi origin, by political movements in Nepal, including the Maoists and the Madhesi. The submission indicated that the political situation in Nepal remained “volatile” and claimed that there was a “real risk” that the appellant would suffer serious harm if he were returned to Nepal. The statement also referred to the appellant’s workplace accident and stated that “[i]t is quite difficult to find a decent job for a [sic] people suffering from health condition in Nepal”. In support of that proposition, the submission cited an internet report published by The Guardian on 28 January 2014, which was said to state “the condition of people who has [sic] been suffering from physical disability”.

14    On 23 January 2020, the Tribunal affirmed the decision of the Delegate.

15    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (as it was then known) (FCCA). To the extent relevant to this appeal, the Tribunal’s reasoning in its decision record (Decision Record or DR) is addressed in the consideration below of the appeal grounds.

16    On 1 July 2020, the appellant’s application for judicial review was heard and dismissed by the primary judge. An application by the appellant for the hearing to be adjourned was rejected by the primary judge: at J [4]-[11]. The appellant was then given an opportunity to make submissions at the hearing but declined to do so: at J [23]. To the extent relevant to this appeal, the reasoning of the primary judge is addressed in the consideration below of the appeal grounds.

17    On 27 July 2020, the appellant filed a notice of appeal. The notice of appeal contains three grounds, including that the primary judge denied the appellant natural justice by not adjourning the FCCA hearing.

18    Regrettably, by reason of the COVID-19 pandemic, the determination of the appeal was delayed because it required an in person hearing with a Nepalese interpreter.

19    On 24 March 2023, the matter was listed before me for a first case management hearing and I made orders that the matter be listed for hearing on 7 September 2023.

20    On 8 August 2023, the Minister filed written submissions in this matter. No written submissions were filed by the appellant in support of his appeal.

21    On 5 September 2023, the Registry contacted both the appellant and the Minister and reminded them that this matter was listed for a hearing at 10.15 am on 7 September 2023.

22    The appellant provided the following documents to the Court, in response to the Registry’s email, as evidence that he would be unable to attend the hearing listed on 7 September 2023:

(a)    a photograph of a medical certificate from Dr Esther Win dated 4 September 2023 (medical certificate); and

(b)    a photograph of a report from Dr Jianna He, a consultant rheumatologist, dated 17 July 2023 (rheumatologist report).

23    On the same day, the solicitors for the Minister emailed the appellant and the Registry, acknowledging receipt of the documents sent by the appellant in support of his unavailability to attend the hearing on 7 September 2023, and wrote:

The First Respondent would not oppose the Court granting the Appellant leave to appear at the 7 September 2023 hearing via telephone or MS Teams, acknowledging he may have some difficulty physically attending the Court.

However, should the Appellant’s intention be to seek the adjournment of the matter, the First Respondent would oppose such a request, on the basis that the evidence provided does not suggest he would be unable to participating in the hearing remotely over telephone or MS Teams.

24    I listed the matter for an urgent case management hearing at 4.15 pm on 6 September 2023 to consider the appellant’s application for an adjournment of the hearing.

25    On 6 September 2023, prior to the case management hearing, the Minister notified the Registry that they had received a communication from the appellant on 5 September 2023, which relevantly stated (as written):

Dear sir, madam

My health condition and mental condition as well not well so I am not ready for this hearing I went through lot of problems so I need time please give me time.

Your faithfully

26    The appellant did not appear at the case management hearing on 6 September 2023. The Minister pressed for the hearing to proceed on 7 September 2023 because:

(a)    the matter had been on foot for more than three years;

(b)    the appellant had been aware of the hearing date since 24 March 2023;

(c)    the appellant only provided evidence that he could not attend the hearing two days prior to hearing; and

(d)    the evidence itself was not compelling as the appellant could still attend the hearing via Microsoft Teams link or telephone.

27    I was not persuaded that the evidence relied on by the appellant was sufficient to establish that he was not able to attend the hearing on 7 September 2023 and I declined to vacate the hearing.

28    Immediately after the urgent case management hearing on 6 September 2023, the Registry emailed the appellant notifying him that the appeal remained listed for hearing on 7 September 2023 and that the Court had granted him leave to attend the hearing via a Microsoft Teams link and provided the details of the relevant link.

29    On 7 September 2023, when the matter was called for hearing, the appellant initially did not appear. After I commenced delivering ex tempore default judgment, the appellant appeared by Microsoft Teams. The appellant advised the Court that he had not appeared at the commencement of the hearing because he had encountered problems trying to connect to Microsoft Teams with his mobile phone. I halted the delivery of the ex tempore judgment and indicated to counsel for the Minister and the appellant that I would then proceed to hear the substantive appeal. Counsel for the Minister and the appellant, with the assistance of a Nepalese interpreter, each then made oral submissions.

C.    Adjournment application

30    At the conclusion of the hearing, the appellant confirmed that he still pressed his application for an adjournment of the hearing. He submitted that (a) he had asked earlier for an adjournment of the hearing but he had only been given three months, (b) the adjournment was insufficient because he could not work and save money in that time because of his medical condition, and (c) if he was given some more time, he would look for work, save some money and then seek out a legal representative.

31    The application for an adjournment of the hearing was opposed by the Minister.

32    I rejected the adjournment application. I advised the parties that I would provide reasons for my refusal of the application in my reasons for judgment.

33    The principles relevant to an application for an adjournment to obtain legal representation are well settled and were recently summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute “right” to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

34    Critically, for present purposes, it is important to emphasise that an inability to retain legal representation by reason of financial impecuniosity, is a relevant but not determinative factor to the exercise of the Court’s discretion to adjourn a court listing. The weight to be given to such a contention will, generally, depend on the length of the adjournment sought and the likelihood of the appellant’s financial situation altering in the foreseeable future.

35    In this proceeding, the appellant knew from both his attendance at the case management hearing on 24 March 2023 and the orders that I made on the same day that his appeal was set down for hearing on 7 September 2023. I had initially proposed to fix the hearing for a date in June 2023, but I extended the period for a further three months to give the appellant more time to address his financial position to enable him to obtain legal representation. I indicated on this occasion that if the appellant required any further extension, he would need to provide “very compelling evidence”.

36    The only evidence on which the appellant relied in support of his application for an adjournment of the hearing on 7 September 2023, was the medical certificate, which was provided to the Court on the day before the hearing. When asked if he had any other medical evidence, evidence of employment or approaches to lawyers, the appellant responded through his interpreter:

Well, at present I don’t have any money, so I cannot put any effort in looking for anybody. That is why. My medical evidence, I can provide my back surgery and what I’m going through, everything.

37    The medical certificate stated that the appellant had reported to Dr Win:

[T]hat he has developed more pain in his back and his legs due to underlying seronegative arthritis and he reported that he is unable to attend the court on coming Thursday on 7/9/23.

38    The medical certificate did not rise above a record of what the appellant had advised Dr Win.

39    The rheumatologist report was attached to the medical certificate. Dr Win referred to it as “the recent report from rheumatologist who is treating his seronegative arthritis”. Dr He stated in the rheumatologist report that she concurred with Dr Win’s suspicion that the appellant likely had seronegative inflammatory arthritis and described the treatment she had prescribed. Dr He, however, did not otherwise address whether the appellant was in a condition to be able to attend any hearing at the time of her report or indeed at any subsequent date.

40    The evidence relied upon by the appellant did not provide any plausible basis for the hearing to be adjourned on medical grounds. Indeed, as it transpired, the appellant was able to appear at the hearing by Microsoft Teams, with the assistance of an interpreter.

41    The more substantive question was whether the appellant had any evidence of employment opportunities or had made any approaches to lawyers.

42    At the case management hearing on 24 March 2023, the appellant stated that he had not been able to work since his back surgery in July 2019 due to a subsequent medical issue with his knee, ongoing issues with his back and his mental health. When asked when he anticipated he might be able to work again, the appellant responded through his interpreter:

And – yes. I’m not sure, but I think I will be able to start work soon. I’m – I’ve been talking with my … and I do need to do some treatments as well.

43    I was satisfied that there was no realistic prospect that the appellant’s financial position would, in the foreseeable future, improve sufficiently for him to retain a lawyer, given (a) the appellant’s current medical condition had precluded him from working since July 2019, and (b) the absence of any evidence that the appellant had made any approach to any employer for work or any lawyer for assistance on a paid or pro bono basis since the case management hearing on 24 March 2023. Hence, in my view, any further adjournment would be unlikely to assist the appellant in his efforts to achieve legal representation.

D.    Grounds 1 and 2

44    It is convenient to address Grounds 1 and 2 in the notice of appeal, together.

45    In grounds 1 and 2, the appellant contends (as written):

1.    The Appellant was denied natural justice. His Honour erred in not adjourning the hearing.

Particulars

a)    Due to COVID 19, the Appellant did not have the funds to find alternative legal representation.

b)    The Appellant requested additional time at hearing but, was refused.

c)    The matter was fixed for final hearing on 7 April 2021, however the matter was prepone to 1 July 2020 on 1 May 2020, without providing the Appellant with an opportunity to comment. This was prejudiced towards the Appellant.

2.    His Honour failed to consider that the Appellant was ill, even though he provided medical certificates stating he was unfit due to medical conditions.

46    The appellant submits that he was denied natural justice because he was not given an adjournment in circumstances where his medical conditions precluded him from raising sufficient funds to be able to retain a lawyer and otherwise prevented him from being able to pursue his application for judicial review at that time.

47    The primary judge addressed the medical evidence relied upon by the appellant at J [5] in the following terms:

The [appellant] also relied upon a medical certificate produced to the Court. The medical certificate indicated that the [appellant] was unfit to attend work/school/university due to a medical condition. No description of the condition that the [appellant] suffers from, appeared in the medial certificate. The certificate covered only the day of the hearing. A prescription for a mild sedative ‘Temase’ was also produced. It was prescribed for night time or ‘Nocte’ usage.

48    The Minister submits that the primary judge did not err in refusing the adjournment sought by the appellant. The Minister submits that his Honour was entitled to note the appellant had two months’ notice of the hearing, he had taken no steps to secure legal representation after his lawyers withdrew a month before the hearing and the medical certificates did not indicate he was unfit to attend the hearing or even identify the medical condition the appellant claimed to have.

49    As a general rule, a decision by a primary judge to refuse or grant an adjournment will rarely be disturbed on appeal, unless it can be demonstrated that the primary judge (a) erred in the exercise of their discretion to refuse or grant the adjournment, and (b) the decision would cause substantial injustice to one of the parties: Syed v Minister for Home Affairs [2019] FCA 498 at [20] (Flick J) and the cases cited therein, including Lashansky v Legal Practice Board of Western Australia (No 3) [2013] WASCA 260 at [40] (Newnes JA, Pullin and Murphy JJA agreeing).

50    In my view, there was no error in the decision of the primary judge to refuse the adjournment application that fell within the kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (Dixon, Evatt and McTiernan JJ). There was no discernible error of principle by the primary judge, any taking into account of extraneous or irrelevant matters, mistaking of facts or a failure to take into account a material consideration. Nor could it be said that upon the facts before the primary judge, the decision was unreasonable or plainly unjust. The appellant was given not insignificant notice of the hearing, he had taken no steps to secure legal representation after his lawyers withdrew and the medical certificates did not provide any coherent explanation of his medical condition and what impact it might have had on his ability to appear at the hearing.

51    Grounds 1 and 2 have not been established.

E.    Ground 3

52    The third ground of appeal advanced by the appellant is that the primary judge erred in not finding that he was specifically targeted for being of Pahadi origin.

53    The third ground of review relied upon by the appellant before the primary judge included a contention that the Tribunal engaged in jurisdictional error by, among other matters, failing to find that the appellant had been specifically targeted for being of Pahadi origin.

54    The primary judge relevantly rejected that ground of review at J [34] on the basis that:

The Tribunal noted that the [appellant] would be returning to Kathmandu and that he would not be the target of any discrimination or indeed persecution for being a Pahadi, in Kathmandu.

55    The Minister submits that this ground cannot succeed because the appellant did not face any relevant harm if his application for a protection visa was unsuccessful because the appellant would not return to the Terai region in Nepal.

56    This ground of appeal is misconceived. It is readily apparent from the Tribunal’s Decision Record that it was proceeding on the basis that it had accepted the appellant’s claims that he was targeted for being a Pahadi, but he would not be exposed to any serious harm if he were returned to Nepal because he would not be returning to the Terai.

57    At DR [15], the Tribunal observed that the appellant had submitted (the reference to “2011” was subsequently found by the Tribunal to be an error):

When the [appellant] moved to the Terai (in 2011) after a period he was targeted by the Madhesi. During the movement thousands of individuals of Pahadi origin were displaced from the Terai. People who did not leave were tortured and even killed. Reference is made to unrest in the Terai and police opening fire on protesters with about 45 people killed. In retaliation protesters killed nine police personnel including a high-ranking officer. After this incident, the situation in the Terai region became worse for people of non-Terai background. People were forced to abandon their homes and displaced to different parts of the country. The [appellant] was forced to leave the Terai because of the movement. The [appellant] was threatened with kidnap or being killed if he disobeyed their orders.

58    Then, relevantly, for present purposes, the Tribunal stated at DR [30]:

The [appellant] left because of unrest in the area created by the Madhesi who were, amongst other things, targeting the [appellant’s] ethnic group. The [appellant] indicated that he was threatened by Madhesi with sticks and told that he should leave the area. The disturbances caused the hotel where the [appellant] worked to cease business, which cause the [appellant] to lose to his job.

59    In that context, the Tribunal then proceeded to address the risk of the appellant facing serious harm if he were returned to Nepal. The Tribunal recorded at DR [47]:

The Tribunal noted to the [appellant] that the DFAT information does confirm disturbances in the Terai involving the Madhesi. It indicates that there is antagonism from this group towards those of Pahadi ethnicity. However, the Tribunal put to the [appellant] that it would not appear that he would live in the Terai if he returned to Nepal (the [appellant] indicated that, if anywhere, he would return to Kathmandu) and therefore there would not be a risk of harm based on any continuing disturbances in the Terai region. In response the [appellant] indicated ‘ok’ but commented that anything can happen at any time.

(Emphasis added.)

60    The Tribunal then concluded at DR [54]:

Whilst the Tribunal accepts that there have been past disturbances in the Terai region as a result of agitation by the Madhesi, and that this has involved antagonism towards the [appellant’s] ethnic group, the Tribunal finds, on the [appellant’s] own clear evidence, that he would not return to the Terai on return to Nepal. Therefore, the Tribunal is not satisfied that would not return to the Terai on return to Nepal. Therefore, the Tribunal is not satisfied that the [appellant] would face a real chance of serious or significant harm as a result of any ongoing disturbances relating to Madhesi that may be taking place in the Terai.

(Emphasis added.)

61    Ground 3 has not been established.

F.    Self-represented litigant

62    Given the significance of an unsuccessful appeal to the appellant and that he was ultimately not legally represented, I have reviewed the Decision Record to determine whether there was any discernible jurisdictional error that might not have been otherwise raised in the notice of appeal. I am satisfied that there was no error.

63    In the Decision Record, the Tribunal (a) outlined the relevant legal principles at DR [4]-[9], (b) summarised the protection claims advanced by the appellant at DR [10]-[19], and (c) identified and extracted relevant extensive sections of the Country Information at DR [20]. Finally, the Tribunal made findings about the appellant’s credibility and other relevant findings in response to each of the protection claims advanced by the appellant at DR [21]-[65].

64    The Tribunal, in particular, did not accept the appellant’s claim that he would be at a real risk of serious harm from the Maoist movement if he was returned to Nepal. In reaching this conclusion, the Tribunal referred to Country Information, which did “not indicate that Maoists violence was widespread” and relevantly at DR [43]:

The Tribunal also noted that on the [appellant’s] own evidence that his parents and brothers have not suffered any recent difficulty from Maoists including splinter groups. This provided some indication as to the limitation of the risk to the [appellant] in this respect…The Tribunal provided the opportunity for the [appellant] to provide independent evidence following the hearing that would counter this view.

65    The appellant did not provide the Tribunal with any independent evidence to support his claim that he would suffer serious harm as a result of violent activity from Maoist groups either within the timeframe prescribed by the Tribunal, or thereafter: see DR [45].

66    The Tribunal also did not accept the appellant’s claim that he relocated from Purkot to Birgunj in 2010 due to “problems from Maoists” and concluded at DR [50] that the sole reason for the appellant’s relocation was to pursue employment opportunities. The Tribunal’s reasons for its concerns about the credibility of this claim are relevantly set out at DR [49]:

Firstly, this was in the period after the insurgency had ended. Secondly, the written claims state that the [appellant] relocated with his family, which the [appellant] indicated in the hearing was not the case. Thirdly, the [appellant] initially in the hearing indicated categorically that the sole reason that he moved to Birgunj was to secure employment.

67    Further, the Tribunal noted that the appellant had not referred to any instances of being threatened or physically harmed by Maoists or engaged in any political activity or referred to any particular characteristics that would place him at particular risk of harm from Maoists: at DR [51]-[52].

68    The Tribunal was also not satisfied that any economic difficulties and limitations on the appellant’s ability to work would lead to a risk of the appellant experiencing “any defined category of significant harm”: at DR [59]. The Tribunal was “sympathetic to a difficult economic situation in Nepal and the [appellant’s] physical condition” but stated that to the extent the appellant faced any difficulties obtaining employment, he appeared to “have a close knit family” that would provide economic support and assistance to him: at DR [60].

69    In all the circumstances, I do not consider the Decision Record to reveal any error in the Tribunal’s reasoning, sufficient to ground a conclusion that the Tribunal fell into jurisdictional error.

G.    Disposition

70    The appeal is to be dismissed and the appellant is to pay the Minister’s costs.

Associate:

Dated:    22 December 2023