Ahmad v Minister for Immigration and Border Protection

[2018] FCAFC 199

FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 199

Appeal from:

Application for adjournment of appeal: Ahmad v Minister for Immigration & Anor [2018] FCCA 1177

File number:

NSD 703 of 2018

Judges:

RARES, DAVIES AND BROMWICH JJ

Date of judgment:

12 November 2018

Catchwords:

PRACTICE AND PROCEDURE – application for adjournment of appeal inferred from email sent late the night before appeal hearing – lateness of application – no medical evidence provided – held: application dismissed

Cases cited:

AHB v NSW Trustee and Guardian [2014] NSWCA 40

Gulati v Minister for Immigration and Border Protection [2017] FCA 255

Date of hearing:

12 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

The Applicant did not appear

Counsel for the First Respondent:

Mr B D Kaplan

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 703 of 2018

BETWEEN:

KHALIL AHMAD

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:	RARES, DAVIES AND BROMWICH JJ
DATE OF ORDER:	12 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The informal application for an adjournment made by the appellant be refused. 

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

REASONS FOR JUDGMENT

RARES J:

1. I invite Justice Bromwich to give the first judgment.

   BROMWICH J:

2. On the morning of this appeal hearing at 9.26 am, the New South Wales Registry of the Court received an email from the solicitor for the Minister for Immigration and Border Protection.  That email in turn attached an email that was sent by the appellant, Mr Khalil Ahmad, to the solicitor for the Minister and the Court’s National Appeals Registrar Assistant, on Sunday, 11 November 2018 at 11.23 pm.  The content of Mr Ahmad’s email was as follows (verbatim): 

   Good Evening. 

   I have court hearing tomorrow but I am sick with stomach problem vomiting and diarrhea and I am afraid I am not able to travel and can’t attend my hearing. 

   I apologize for that. 

   Regards,

   Khalil

3. The email above has been treated by this Court as an informal application for an adjournment.  That application is opposed by the Minister on three grounds, being the lateness of the application, the paucity of information in support of the application (citing the decisions in Gulati v Minister for Immigration and Border Protection [2017] FCA 255 and AHB v NSW Trustee and Guardian [2014] NSWCA 40), and the grounds of appeal in this case lacking merit. Ordinarily, it is best to avoid consideration of the merits of the substantive appeal in relation to the grant or refusal of an adjournment, as opposed to an application for an extension of time, in which the merits of the proposed appeal may be relevant.

4. In Gulati, an adjournment application was received prior to a hearing that was supported by a somewhat perfunctory medical certificate. I said the following (at [14]):

   The third factor reinforcing my view that this is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3]–[6]; followed in Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a “formulaic document” but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant’s inability to attend Court.  That is especially so when a matter was fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing.

5. This application is indeed very late.  Further, although Mr Ahmad’s email states that he has an illness, that is not evidence of any illness.  In those circumstances, there is no proper basis that I can see for an adjournment of the hearing of the appeal.  In my view, the application should therefore be dismissed.

   RARES J:

6. I agree. 

   DAVIES J:

7. I agree.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Davies and Bromwich.

Associate:

Dated: 15 November 2018