Qadir v Minister for Immigration & Multicultural Affairs

Introduction 1 The applicant is a citizen of Pakistan who arrived in Australia in October 1995. He applied for refugee status on 29 December 1995 on the grounds that as a member of the Ahmadi sect by reason of his father's conversion, he was in fear of persecution if he was returned to Pakistan. The Minister's delegate refused the application on 23 September 1997 and the refusal was affirmed by the Refugee Review Tribunal on 18 May 1998. The applicant now seeks judicial review of this refusal by this Court. 2 The case raises the legal consequences which flow from a refusal by the Tribunal to grant an application for adjournment of its hearing. The applicant twice asked for an adjournment. On 23 March 1998, the applicant's lawyers wrote to the Tribunal conveying their instructions that the applicant was not fit to attend the proposed hearing on 8 April 1998. The enclosed a certificate from a psychologist dated 17 March 1998 stating: Mr Muhhamad QADIR is currently receiving psychological treatment from me following a serious work accident in which several of the fingers of his left hand were severed. He has informed me that he has an interview with Dept. of Immigration in April 1998. He has not indicated the nature or purpose of the interview. Mr Qadir is suffering from an anxiety disorder (post-traumatic stress disorder) and depression and is unlikely to be able to participate fully in an interview. His concentration is affected, he is highly anxious, he requires medication and he is struggling to cope with daily activities. May I respectfully suggest that his interview be postponed for a period of three months in order to allow Mr Qadir sufficient time to recover from the anxiety and depression. 3 After the Tribunal refused the adjournment, the lawyers wrote again on 30 March enclosing a letter from the applicant's treating doctor. The lawyers' letter stated in part: We enclose an additional report from the applicant's treating doctor in relation to his injuries and the treatment he is receiving. The applicant instructs us that he is suffering from depressions [sic] and is undergoing treatment for that. He instructs us that this depression makes it difficult for him to recalls things clearly and to concentrate properly. He is also expecting to undergo further surgery this month. We once again request that his hearing be adjourned so that he is able to complete his medical treatment and be in a position to instruct us fully and properly and to be able to properly contribute to a hearing before the Tribunal. 4 The doctor's letter stated: Mr Mohammed Qadir is under my care since June 96. He informs me that he is on temporary residence permit in Australia and has applied for permanent residence status. He has also informed me that he has an interview in April 98 with your department for the above matter. Mr Qadir was involved in a very serious accident while at work on 2/12/97 in which he cut his second, third and fourth fingers of his left hand. He had Micro surgery and plastic surgery done to join them at Westmead Hospital. He remained in the hospital till the 16/12/97. His fingers are deformed painful and do not function naturally. Follow up X-rays done on 25/3/98 shows that the bones of these fingers have not united yet in spite of internal fixation by wire. He further needs surgery which is scheduled on 28/4/98 and might need further eight to ten weeks to recover. Since the accident Mr Qadir has been suffering from anxiety with depression and finds it very difficult to concentrate. He is receiving Psychotherapy. If you could consider his case compassionately and postpone his interview for about three months. 5 On 1 April 1998, the Tribunal replied to the applicant's lawyers as follows: The Member reviewing Mr Qadir's case has asked me to advise you that he is not prepared to grant Mr Qadir an adjournment on the basis of the information you have provided. The additional report that you have submitted indicates that Mr Qadir was involved in a serious accident at work on 2 December 1997. He was released from hospital on 16 December 1997. There is nothing in that report to suggest that he is physically incapacitated in any way that would prevent him from attending the hearing scheduled for 8 April 1998. The Member notes that Mr Qadir is to have further surgery on 28 April 1998 but this clearly does not present any conflict with the date of the scheduled hearing. The Member reviewing Mr Qadir's case further notes that the certificate from a psychologist which you provided under cover of your facsimile message dated 23 March 1998 suggests only that Mr Qadir is suffering from post traumatic stress disorder, that his concentration is affected, that he is highly anxious and that he is struggling to cope with daily activities. To the extent that Mr Qadir's performance at the hearing may be said to be affected by his psychological problems following upon his work accident, this may be the subject of submissions at the appropriate time. As previously advised, the member is not prepared to grant your client the adjournment sought.