ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1439

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1439

File number(s):

PEG 152 of 2020

Judgment of:

JUDGE LUCEV

Date of judgment:

24 June 2021

Catchwords:

MIGRATION – judicial review application

PRACTICE AND PROCEDURE – application in a case for adjournment of hearing – where medical evidence supported by affidavit

Cases cited:

Zubair v Minister for Immigration & Anor [2017] FCCA 2905

Number of paragraphs:

6

Date of last submission/s:

24 June 2021

Date of hearing:

24 June 2021

Place:

Perth

Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 152 of 2020

BETWEEN:

ANR17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.The hearing of the matter be adjourned to a date to be fixed.

2.The Applicant file and serve a written outline of submissions by 15 July 2021.

3.The First Respondent file and serve any further written submissions by 29 July 2021.

4.The Applicant pay the First Respondent’s costs in the sum of $500 by 24 July 2021.

5.The Applicant file forthwith an executed copy of the unexecuted affidavit handed up in Court today, and serve the executed copy on the First Respondent via email by 1 July 2021.

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. It is evident that the applicant is seeking to have the matter adjourned on medical grounds, and there is before the Court an affidavit, albeit unsigned and unexecuted, attesting to the applicant’s symptoms as having a fever, sore throat, being dizzy, coughing, and being unable to concentrate, and asserting that he is unable to present his case at Court. That evidence is unchallenged, and there is annexed to the affidavit a medical certificate dated yesterday 23 June 2021 from a medical practitioner, indicating that based on the available history and on examination findings, that the applicant is unfit:

   For work/law Court from 23 June 2021 to 27 June 2021 inclusive.

2. The Court is prepared to accept that the applicant is not in a fit condition to properly put his case on an application for judicial review. 

3. The Court acknowledges that the medical certificate is a bare medical certificate of a type which, if tendered without any other supporting evidence, has frequently been rejected by this Court and the Federal Court in adjournment applications: see the cases cited in Zubair v Minister for Immigration & Anor [2017] FCCA 2905 at [7] per Judge Lucev. But in this case it is supported by evidence in an unchallenged affidavit, which makes a difference. In those circumstances the Court is prepared to grant an adjournment of the matter.

4. The Court notes that the applicant has failed to file written submissions in accordance with an order made by a Registrar of this Court in June of 2020. 

5. In the circumstances it is appropriate given the shortness of the notice of the application for an adjournment that the applicant bear the costs of the adjournment in so far as they are sought by the Minister.

6. Orders will be made in the following terms:

   (a)the hearing of the matter be adjourned to a date to be fixed;

   (b)the applicant file and serve a written outline of submissions by 15 July 2021;

   (c)the first respondent file and serve any further outline of submissions by 29 July 2021;

   (d)the applicant pay first respondent’s costs in the sum of $500 by 24 July 2021; and

   (e)the applicant file forthwith an executed copy of the unexecuted affidavit handed up in Court today, and serve the executed copy on the first respondent via email by 1 July 2021.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       25 June 2021