Aak17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 310
•26 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 310
File number(s): MLG 4 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 26 November 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – refusal of Protection (subclass 866) visa.
PRACTICE AND PROCEDURE – Where historical lengthy delays in listing matters filed in Melbourne Registry for hearing – where Applicant in hospital – whether to adjourn proceedings.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190
Migration Act 1958 (Cth), s 476
Cases cited: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
Zubair v Minister for Immigration & Anor [2017] FCCA 2905
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 26 November 2021 Place: Perth The Applicant: Appeared in person (via telephone) Counsel for the First Respondent: Mr M. Daly Solicitor for the First Respondent: Mills Oakley Lawyers For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 4 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The hearing of the matter be adjourned to 2.00 pm AWST / 5.00 pm AEDT on 25 January 2022.
2.Order 3 of Registrar Burns’ orders of 5 July 2017 be set aside and order in lieu that the Applicant file and serve the following by 10 January 2022:
(a)any amended application;
(b)a supplementary Court Book, if any;
(c)written submissions.
3.The First Respondent have leave to file any further affidavits and written submissions by 24 January 2022.
4.The Applicant pay the First Respondent’s costs of today in the sum of $1,178 by 10 January 2022.
5.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
Before the Court is an application for judicial review filed by the applicant, AAK17, in the Melbourne Registry of the Court on 3 January 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal handed down on 12 December 2016. The Tribunal Decision affirms an earlier decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant AAK17 a Protection (subclass 866) visa (“Protection Visa”).
The matter has had a lengthy procedural litigation history to this point, noting that it was filed in January 2017. The Court also notes that it was the subject of orders made by Registrar Burns in the Melbourne Registry on 5 July 2017 (“Registrar’s Orders”). The Registrar’s Orders include orders that:
3 The applicant file and serve the following 28 days before the hearing:
3.1 any amended application with proper particulars of the grounds of the application;
3.2 supplementary Court Book, if any; and
3.3 written submissions.
…
5 The application be listed for final hearing at 2.15 p.m. on 27 August 2019 before Judge McNab.
The parties were sent a Notice of Relisting on 15 March 2019, relisting the matter for hearing on 12 November 2019 before Judge McNab. On 4 September 2019, the parties were sent a Notice of Adjournment from the Melbourne Registry and were informed that the hearing on 12 November 2019 had been vacated, that the proceeding had been adjourned to a date to be fixed and that the parties would be notified in due course of new listing in the then Federal Circuit Court of Australia.
Subsequently, early in the second half of 2021, the matter was reallocated to the Perth Registry of the Court, consequent upon the very significant delays in the allocation and listing of migration judicial review proceedings before judges in the Melbourne Registry of the Court, a matter which is acknowledged by the Court: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren. On 18 August 2021, a Notice of Relisting was sent from the Chambers of Judge Ladhams in Perth, relisting the matter for hearing on 26 November 2021. For administrative reasons, that hearing is now before the Court as presently constituted, a fact of which the parties were advised on 5 November 2021.
This morning at 9.26 am AWST, the Chambers of the presiding Judge were advised by the Court’s National Enquiry Centre (“NEC”) that AAK17 had called and informed them he was very ill and in hospital. Chambers responded by indicating that AAK17 should email Chambers seeking an adjournment and attaching a medical certificate, a message which, the Court is informed, was conveyed to AAK17 by the NEC. The Court adds that, ordinarily, for an adjournment, an Application in a Case and an affidavit would have been required but the exigencies of time were such in this case that it plainly precluded that particular course.
The Court subsequently, at 10.02 am AWST (1.02 pm AEDT), received an email in the following terms (unaltered):
Sir/Madam i want to seek adjournment of my court hearing at 1pm today because due to my illness, i really ill at the moment that’s why i seek adjournment, i will provided a doctor certificate as soon as possible after I discharged from the hospital
The hearing commenced a little late in the circumstances, due to other technical difficulties, but it having commenced and Counsel for the Minister having indicated to the Court that an adjournment was opposed, AAK17 then sought to join the hearing and joined the hearing via telephone. AAK17 explained to the Court, not under oath, but in the present circumstances the Court does not think that is a difficulty, that he woke up this morning with pain in his stomach, that he could not endure the pain, and that sometime between 7 am and 8 am AEDT this morning he was taken to hospital. He confirmed that he was in the Dandenong Hospital in the eastern suburbs of Melbourne, that the pain was not going away, that he was in a bed on a ward, and from the background noise it is apparent that that is the case, a fact which the Minister’s, lawyer, quite properly, does not take issue with.
The Minister’s lawyer, nevertheless, continued to oppose the adjournment, upon instructions, but also in circumstances where the Minister conceded, quite properly, that it was apparent that AAK17 was in hospital, and that AAK17 whilst in hospital in an emergency ward, would not necessarily be able to get the necessary medical certification to support an adjournment that might otherwise be required. Otherwise, the submission from the Minister was that the matter had no prospects of success, and, in those circumstances, an adjournment would be futile.
The legislative requirements for practice and procedure matters are now set out in the overarching provisions of s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The principles with respect to the grant of an adjournment have been set out by the Court in cases such as COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 (“COF17”) and AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195. It suffices to observe, as the Court did in COF17 at [19] per Judge Lucev, that:
19 It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
The Court notes that the Minister’s submissions with respect to the Judicial Review Application not having sufficient merit to warrant an adjournment, and that AAK17 has not complied with the Registrar’s Orders. Notwithstanding those matters, the Court is of the view that it is not just to continue with a hearing in circumstances where, firstly, AAK17 has claimed that he is very ill and in hospital, and that from his appearance, albeit by telephone, it would appear to be the case that he is, in fact, in hospital in an emergency ward in Dandenong Hospital and that to dismiss the Judicial Review Application in those circumstances would, in the Court’s view, be unjust.
The Court also notes that there has been significant delay in having the matter heard and takes that into account, but notes that those delays arise from delays in the allocation of the matter to a Judge for hearing in the Melbourne Registry, and are not delays which are the fault of AAK17. The Court also notes that this is the first occasion on which AAK17 has sought an adjournment of these proceedings and does not believe it to be the case that there is any prejudice to the Minister that could not be cured by a costs order.
The Court also notes that it is able to relist the matter by putting it into a list in late January and, therefore, there will be a relatively short adjournment of two months. The Court makes no observation on the merit of the Judicial Review Application other than to note, having already read the papers in preparation for today, that it is a matter which is neither overly technical nor overly complex and, therefore, should not require significant further getting up or re-acquaintance with the papers on the part of the Minister for any further hearing.
The Court notes that ordinarily, an adjournment on medical grounds would require appropriate medical documentation and, in that regard, the Court refers to what was said in Zubair v Minister for Immigration & Anor [2017] FCCA 2905 at [7] per Judge Lucev as follows:
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]- [10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]- [49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No.2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
The Court puts that matter into these Reasons for Judgment in circumstances where it is evident for present purposes, albeit that there is no sworn evidence, that AAK17 is in hospital, but also, to serve to put AAK17 on notice of the nature of the relevant requirements if any future adjournments are sought on medical grounds. In the circumstances, the Court will make an order adjourning the hearing today to a date in January. The Court will also make orders that AAK17 file and serve the written materials required in Order 3 of Registrar Burns orders by dates to be ordered by the Court, and the Court does that to remind and indicate to AAK17 that they are matters which must be attended to prior to the further hearing of this matter.
If those matters result in any further costs for the Minister, those are costs which are likely to be recoverable in addition to the normal standard costs: Bunnag v Minister for Immigration (No 2) [2008] FMCA 430. The Minister should also, in the circumstances, have his costs of today, the matter having been listed for hearing, the usual hearing listing being half a day and the scale sum being for that $1,178.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 2 December 2021
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