Aggarwal v Minister for Immigration and Border Protection

[2017] FCA 156

FEDERAL COURT OF AUSTRALIA

Aggarwal v Minister for Immigration and Border Protection [2017] FCA 156

Appeal from:	Application for extension of time:  Aggarwal v Minister for Immigration and Anor [2016] FCCA 2900
File number:	VID 1316 of 2016
Judge:	MCKERRACHER J
Date of judgment:	22 February 2017
Legislation:	Federal Court Rules 2011 (Cth) r 35.33
Date of hearing:	22 February 2017
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr O Young
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to costs

ORDERS

VID 1316 of 2016

BETWEEN:

ABHAY AGGARWAL

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	22 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal is dismissed.

2.The applicant pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1. The applicant has not appeared on this application.

2. Yesterday at 2.07 pm my associate received from the applicant an email saying that he would not be able to attend this hearing due to medical reasons.  He enclosed a medical certificate and asked for an extension of time.  The email is in these terms:

   …

   Dear Sir,

   I am writing with reference to my above file number.  I would like to inform you that I would not be able to attend the scheduled hearing tomorrow due to medical reasons.  I have enclosed my medical certificate for your reference.

   I would request you to kindly provide me an extension on time and would like to apologise for the inconvenience caused due to my unexpected situation.  Your understanding of my situation will be duly regarded.

   I look forward to hear from you at the earliest.

3. The medical certificate, I should say, was dated 21 February 2017.  It is on, apparently, a letterhead from the Richmond Family Medical Clinic and simply says:

   This is to certify that the applicant has a medical condition and will be unfit for work or study from Wednesday, 22 February 2017 to Wednesday, 22 February 2017 inclusive.

4. The certificate was also apparently completed on 21 February 2017. 

5. My associate enquired of the first respondent, the Minister for Immigration and Border Protection, as to the Minister’s views in relation to the adjournment application. 

6. The Minister indicated through his solicitors at 4.54 pm that he opposed the applicant’s request for an adjournment on the basis that the medical evidence the applicant provided in support of the request was inadequate.  The medical evidence did not address the applicant’s ability to attend Court on 22 February 2017 or his capacity to participate at the hearing.

7. The email from the Minister’s solicitors was then forwarded on to the applicant at 5.31 pm, with an email from my associate indicating that the applicant would have to formally request an adjournment in person, with the words ‘in person’ emboldened, at ‘tomorrow’s hearing’, making it suitably clear, I think, to the applicant that he would be required to attend to make an application for an adjournment and produce evidence in support of his application.  He has not attended.

8. Having regard to the very brief nature of the medical certificate, which does not address the applicant’s capacity to attend Court for the purpose of a hearing and his being informed that he would need to attend Court to make any such application, I am satisfied that it is appropriate to accede to the Minister’s application for judgment in default of appearance pursuant to r 35.33 of the Federal Court Rules 2011 (Cth), and I so order. There will be judgment for the Minister, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        24 February 2017