Arachchilage v Minister for Immigration

[2019] FCCA 3073

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARACHCHILAGE v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3073

Catchwords:
PRACTICE AND PROCEDURE – Where applicant makes application for adjournment shortly before hearing date – where applicant provides medical certificate which is lacking in detail – where medical certificate opines that applicant is unfit for work for 2 weeks – where applicant seeks 6 month adjournment – brief adjournment granted.

Legislation:

Migration Act 1958 (Cth), s.65

Applicant: CHANDIMA LAKSHAN PALADENIYA ARACHCHILAGE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 426 of 2017

Judgment of: Judge A. Kelly

Hearing date: 18 October 2019

Date of Last Submission: 18 October 2019

Delivered at: Melbourne

Delivered on: 18 October 2019

REPRESENTATION

The Applicant: In person

Solicitor Advocate for the Respondents: Ms Buhary

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. By 4 pm on Friday, 8 November 2019, the applicant file and serve any evidence (including medical evidence) indicating his actual diagnosis for any injury, his capacity to attend Court, and prognosis together with any submissions on which he may choose to rely addressing his grounds of review.

2. The hearing and determination of the application is adjourned to 2.15pm on Monday, 11 November 2019.

3. The applicant pay the costs of the first respondent of and incidental to this adjournment fixed in the sum of $1000.

AND THE COURT NOTES THAT:

A.The first respondent may file responding material to any evidence filed by the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 426 of 2017

CHANDIMA LAKSHAN PALADENIYA ARACHCHILAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore Revised from Transcript)

Introduction

1. By application dated 2 March 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 7 February 2017.  Which affirmed the decision of a delegate of the first respondent (Minister) refusing to grant him a partner visa pursuant to s 65 of the Migration Act 1958 (Cth). On 5 April 2017, the Minister filed a response opposing the application on the stated basis that it made broad and unparticularised allegations of jurisdictional error that could not be substantiated without further particularisation.

2. On 30 August 2017, orders were made by consent regulating the preparation of this proceeding for trial.  Those orders relevantly included the parties’ consent that the matter would be set down for hearing on 18 October 2019.  The applicant has been self-represented in this proceeding since its inception.  The only evidence which he has filed in the proceeding is a two-paragraph affidavit affirmed on 2 March 2017 which merely exhibited a copy of the Tribunal’s decision and its notification letter affirming the decision of the delegate to refuse the visa application.

3. A matter of days before the hearing, the applicant furnished a letter to the Court, to which was attached a medical certificate.  I note that in the period from 30 August 2017 to 18 October 2019 the applicant has taken not a single step to prepare any amended application, any further evidence or provide written submissions as he was able to do. 

4. The Court made arrangements to communicate with the applicant today by telephone, having regard to his asserted inability to attend Court.  In the event, it took a great many attempts to contact the applicant by telephone before the matter could be addressed. 

5. The applicant asserted today that he had been unable to obtain legal assistance.  The failure or inability to secure legal representation for the purpose of presenting evidence or arguments in an application for judicial review is not always a proper reason to grant an adjournment.  In the present case, it is a submission which I reject.

6. However, the applicant has furnished a medical certificate by which the following was stated by a General Practitioner who completed the certificate on 12 October 2019.  The certificate says no more than the following:

   [The applicant] is receiving medical treatment for the period Sunday 13 October 2019 to Monday 21 October 2019 inclusive.

   He will be unfit to continue his usual occupation.

7. The certificate, albeit in standard form, says practically nothing as to the applicant’s supposed medical condition.  It says nothing about the nature of the treatment he has received.  It says nothing about his prognosis.  Despite the fact that the certificate provided support for the proposition that the applicant would be unable to continue “his usual occupation”, it said nothing concerning the applicant’s fitness to attend court. 

8. More concerning, however, was the content of the applicant’s letter, which concluded with a statement seeking an adjournment “to a long date indicatively minimum of 6 months as per Dr’s advice.”  As pointed out to the applicant, the medical certificate provided with his letter established no support at all for that proposition.

9. Notwithstanding the submissions of the Minister to the contrary, I am persuaded with considerable reluctance that I should grant a brief adjournment. 

10. The orders made will afford the applicant a final opportunity to prepare his case.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly

Associate: 

Date:  18 October 2019