Arora v Minister for Immigration

[2018] FCCA 2882

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARORA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2882

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – application for adjournment – adjournment refused – application dismissed for non-appearance. 

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: DIKSHIT ARORA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1765 of 2017

Judgment of: Judge Hartnett

Hearing date: 4 October 2018

Delivered at: Melbourne

Delivered on: 4 October 2018

REPRESENTATION

The Applicant: No appearance

Solicitor acting as Counsel for the First Respondent: Ms Nicholson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The adjournment application made by the Applicant in email correspondence of 3 October 2018 is refused.

2. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1765 of 2017

DIKSHIT ARORA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review which was filed by the Applicant on 14 August 2017.  The substantive application was first listed for final hearing on 19 July 2018.  That hearing date was fixed by order 7 of the orders made by Registrar Allaway on 18 April 2018. The orders made by consent that day included also that the Applicant file any amended application with proper particulars of the grounds of application and written submissions 28 days before the final hearing date.  The Applicant did not amend his application nor did the Applicant file any written submissions.  Those orders also provided that the First Respondent file written submissions, the First Respondent did so on 5 July 2018. 

Adjournment application

1. The Applicant first communicated with the Court by email correspondence, of 12 July 2018, to seek an adjournment of the proceedings listed for 19 July 2018.  The Applicant annexed to his email correspondence, a medical report from Dr Ashwani Mehta, Senior Consultant Cardiologist in New Delhi, India, Dr Mehta being the treating doctor of the Applicant’s mother, whom, according to the medical certificate, “underwent CABG on 6 July 2018.” Dr Mehta stated further, in the medical certificate, that the Applicant’s mother was admitted to hospital with coronary artery disease, and that her son, the Applicant, was required “…to be alongside the patient for her speedy recovery and also as an attendant.” That medical certificate was dated 10 July 2018.  The email correspondence of the Applicant of 12 July 2018 requested that the Court adjourn the hearing to another date because his mother, who resides in India, was admitted to hospital, and was “very critical”.  The Applicant indicated that he wished to visit his mother, and that the treating doctor wished for him to travel to India “…as soon as possible, as she (his mother) is in a critical stage.” The Applicant indicated that at that time, he was “…thinking to go for four weeks, but it depends on her recovery.”

2. The First Respondent consented to the Applicant’s request for an adjournment, and conveyed that consent by email to the Court and to the Applicant on 16 July 2018.  The matter was accordingly re-listed by the Court for final hearing this day, 4 October 2018.

3. At 4.26pm on 3 October 2018, the Applicant again emailed the Court, copying in the solicitors for the First Respondent, requesting a further adjournment of the hearing.  The Applicant indicated in his email that he was in India at this time, and that he was looking after his sick mother.  The Applicant advised he was meant to fly back to Melbourne on 1 October 2018, so he could be present for the Court hearing this day, but, after speaking to his mother’s doctor, decided to postpone his return from India to Melbourne.  He again attached correspondence from Dr Mehta, which did not differ in any significant way from the earlier correspondence from Dr Mehta in July 2018.  Dr Mehta again indicated that the Applicant was required to be “…alongside the patient for her speedy recovery, and also as an attendant”.

4. The Applicant also annexed to his email correspondence, what he said were details as to his attached return ticket, which indicated that he travelled with Thai Airways International on Monday 17 September 2018, from Melbourne to Delhi via Bangkok, and that he was to return via Thai Airways International from Delhi to Melbourne via Bangkok on Wednesday 1 October 2018, arriving on Thursday 2 October 2018.  I note that today is Thursday, and it is 4 October 2018.  I note further that 1 October 2018 was a Monday in Australia.

5. There is also before the Court an affidavit affirmed by Ms Katherine Whittemore on 4 October 2018, which annexes the movement records of the Applicant, both in and out of Australia.  Those movement records show that the Applicant has travelled in and out of Australia since at least October 2012, and that his last arrival in Australia was 7 April 2012, and his last departure from Australia was 17 September 2018.  That is, the Applicant, despite his earlier request for an adjournment on the basis of his mother’s health, did not depart Australia in July 2018, but rather some two months later, and in September 2018.  He thus was present in Australia on the first listed final hearing of the matter.

6. The First Respondent opposes the application for an adjournment, in the circumstances as described above.

7. The Court shall not grant an adjournment of these proceedings. There has been an earlier adjournment of the matter as described above, with the proceedings being adjourned from July to October 2018. It is necessary in the administration of justice for the matter to be finally dealt with. Indeed it could have been so dealt with in July 2018 as the Applicant did not deem it necessary to travel to India until September 2018, despite his earlier claims as to his necessary attendance in July 2018. He is now continuing his stay in India for an indefinite period.

8. The Court is mindful that these proceedings were filed over 12 months ago, and that matters such as these must be finalised. It is in the public interest and allows access to justice for all litigants. The Court concludes there was no real reason why the Applicant could not have attended the hearing this day, had he wished, and certainly he could have attended the hearing in July 2018, when he was obviously present in Australia.

9. The adjournment application being refused, the First Respondent then proceeded, on the basis of the Applicant’s failure to prosecute his application, to seek an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The Court made that order and a costs order, which as a consequence, followed.

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

Date: 17 October 2018