Arefin v Minister for Immigration

[2017] FCCA 3079

FEDERAL CIRCUIT COURT OF AUSTRALIA

AREFIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3079

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – adjournment refused.

First Applicant: MD ASIK AREFIN

Second Applicant: SHANZIDA AFRIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 17 of 2017

Judgment of: Judge Manousaridis

Hearing date: 15 November 2017

Date of Last Submission: 15 November 2017

Delivered at: Sydney

Delivered on: 15 November 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms E Cheesman of

Clayton Utz

ORDERS

1. The application for the vacation of the hearing on 8 December 2017 is dismissed. 

2. The costs of the application for an adjournment are reserved. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CAG 17 of 2017

MD ASIK AREFIN

First Applicant

SHANZIDA AFRIN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter was listed before me today following the sending of an email by the first applicant to the Court on 27 October 2017. I will mark that email and the attachments as exhibit A to this application. In that email the first applicant, Mr Arefin, said he was writing in relation to the hearing date that had been set for this matter on 8 December 2017. Mr Arefin stated that he requested that the final hearing date be changed to a later date. The email referred to attached documents. 

2. The attached documents consisted of two documents signed by Mr Arefin and titled, “To Whom it May Concern”.  The first dealt with Mr Arefin and his wife, the second applicant, moving from Queanbeyan to a friend’s house at Rooty Hill in New South Wales, but after a little while that arrangement ended which resulted in the first and second applicants returning to Queanbeyan. The second document titled “To Whom it May Concern” refers to the second applicant being pregnant  and is due to give birth on 17 January 2018, to the second applicant’s pregnancy being complicated by a condition referred to as Hashimoto’s thyroiditis, and reference is made to the second applicant’s medication being increased. The document further states that the second applicant is “finding difficult to move by herself” and “it will be impossible for me to attend the final hearing date in Sydney, leaving [the second applicant] alone at home as I am the only primary carer for my wife”. The document also states that the applicant needs the second applicant at the hearing because “she is the witness of lots of evidences of this case”. 

3. The document refers to two items of medical evidence. One is a pathology request, and the second is a letter issued by a Dr Le Riche.  It states that the second applicant is 26 weeks pregnant and is due to give birth on 17 January 2018; that her pregnancy is complicated by Hashimoto’s thyroiditis; that her Court date is 8 December 2017; that she will be 34 weeks pregnant at that time; that currently she finds it difficult to move around; and her husband is her caregiver; and they do not have any family in Canberra. The letter concludes that it “would be in her interest if the Court date could be postponed to a later date”.

4. Mr Arefin appeared by telephone on this application and made submissions which, in substance, repeated what was contained in the documents to which I have referred. In addition to those matters, Mr Arefin referred to his own mental distress and mental condition as a reason for the matter being adjourned. When I asked Mr Arefin questions about who was obtaining food for him and his wife, Mr Arefin said that there was a friend or a relative who did that. When I asked him whether that person would be able to look after the second applicant during the hearing, Mr Arefin said that that would not occur.  When I asked him whether he had actually asked whether such assistance would be forthcoming, the response, as I understand it, was that “nobody does anything for free in this country”. 

5. The question I have to consider when deciding whether the hearing date will be vacated is whether, on the basis of the material and submissions made before me, the applicants will be unable to meaningfully participate and advance their cases at the hearing which has been set down for 8 December 2017.  Also relevant is whether any difficulties that the applicants may face if the matter is heard on 8 December will be lessened if the matter is adjourned.

6. I first turn to whether the applicants will face difficulties in presenting their cases if the hearing date of 8 December 2017 stands firm. That requires me to look at the medical evidence in the first instance. The evidence goes no further than saying that the second applicant finds it difficult to move around and that the first applicant, Mr Arefin, is her caregiver.  The report from the doctor - although it refers to a particular condition - does not state what difficulties that might give rise to in the ability of the second applicant to attend the hearing either by telephone or in person. Although Mr Arefin submitted in effect that he needed to be by his wife’s side 24 hours a day, the medical report does not indicate that that is necessary. Indeed, the medical report goes no further than saying it would be in the second applicant’s interest if the date would be postponed. So on the basis of the medical evidence I cannot be satisfied that Mr Arefin or the second applicant will be in any significant way impaired in their ability to present their case at the hearing if the hearing is held on 8 December 2017.  

7. There are other factors, however, to consider.  If I accept, and this has been said to me without any sworn evidence, that the applicants have been receiving assistance, at least in relation to the provision of their food, by a friend or a relative, I cannot accept, on that assumption, that the applicants would be unable to obtain the assistance of that friend or relative or other friends or relatives, to care for the second applicant during the hearing.

8. The other matter which is of relevance relates to Mr Arefin’s claim that the second applicant is required to attend the hearing to give evidence.  When I asked Mr Arefin what evidence he expected the second applicant to give, the answer was evidence about Mr Arefin’s employment and the factual background to the matter. Given the jurisdiction of this court is limited to determining whether the second respondent (Tribunal) made a jurisdictional error in this case, it is most unlikely that any evidence the second applicant might give about Mr Arefin’s employment or other background would be relevant.  Another matter to note is that although the second applicant is a party to the application for judicial review, the Tribunal held it had no jurisdiction in relation to the cancellation of the second applicant’s visa.  As I read the application, there is no challenge to the Tribunal’s decision as to jurisdiction. 

9. Then I just briefly turn to Mr Arefin’s submission about being in mental distress. I can well understand that Mr Arefin would be suffering mental distress. That is to be expected, having regard to the issues that are involved in his application for judicial review, by which I mean that if he is unsuccessful, his ability to stay in this country legally will be imperilled. However, there is no medical evidence which suggests that the mental distress that Mr Arefin says he suffers from will impair his ability to conduct his case on 8 December 2017.

10. And one final matter to note is that the applicants reside in Queanbeyan. The applicants initiated the judicial review application in the Canberra registry of the Court. On the applicants’ application, the matter was transferred to Sydney. That was done on the basis that the applicants were moving to Sydney. For reasons stated by Mr Arefin, he has moved back to Queanbeyan with the second applicant. Now, why I mention this is that the hearing will take place in Sydney and the applicants are in Queanbeyan. If Mr Arefin and, indeed, the second applicant were to travel to Sydney for the hearing, that would be a hardship. That hardship, however, has been brought about by decisions the applicants have made and, in any event, can be obviated because the Court has the facility for hearings to be conducted by telephone.  On applications for judicial review, evidence is usually not required other than what is in the court book, and in this case, the hearing on 8 December 2017 can take place by telephone, and Mr Arefin can conduct the hearing in the comfort of his home and in the presence of the second applicant. 

11. The final matter to consider is, assuming there are difficulties that the applicants will face if the hearing goes ahead on 8 December 2017, whether those difficulties will be ameliorated if the hearing is vacated.  Here Mr Arefin did not give a day to which the matter should be adjourned. In those circumstances, it is impossible to say with any degree of certainty that any difficulties the applicants will face on 8 December 2017 will not be present at a later time. 

12. For those reasons, I am not satisfied that it is in the interests of the administration of justice that the hearing that has been listed on 8 December 2017 should be vacated. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 December 2017