Arq16 v Minister for Immigration

[2016] FCCA 2359

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARQ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2359

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.476, 477

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

Applicant: ARQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 713 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Sydney

Delivered on: 8 September 2016

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 713 of 2016

ARQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application of a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 May 2015, affirming a decision of the delegate not to grant the applicant a protection visa. The application requires an extension of time under s.477 of the Act, as it was filed 286 days outside the time limit.

2. On 12 May 2016, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed by the applicant.

3. On 7 September 2016, the Court received an email sent on behalf of the applicant to the first respondent, seeking an adjournment of the hearing today on the basis that the applicant was suffering from medical issues. In support of the adjournment request, there was a medical certificate, signed by Dr Ziad Basyouny dated 7 September 2016, that identified the applicant’s name and then said the applicant:

   “is suffering from a medical condition (severe neck pain with suspected disc prolapse) and he will be unfit for work or attend any interviews due to the medications and the nature of the disease from 7/9/2016.”

4. The medical certificate is unsatisfactory in a number of respects. First, it does not identify the timing or onset of any incident or problem in relation to the neck pain or suspected disc prolapse. Secondly, it does not identify the nature of the medications or any prognosis as to when the applicant will be able to attend Court. Thirdly, it does not identify whether the applicant is unfit to attend Court. On the face of the medical certificate, it is not apparent that the applicant has informed the doctor that he was required to attend a Court hearing today.

5. The matter has been called outside and the applicant has failed to appear. The first respondent opposes any adjournment on the basis that the medical certificate is an insufficient explanation for the absence of the applicant in the present case. I accept those submissions. The first respondent has moved for the matter to be dealt with under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

6. I am satisfied that the applicant is aware of the hearing today. I am also satisfied that this is not a matter in respect of which there has been any satisfactory explanation for the failure of the applicant to appear. I am satisfied that in the interests of the administration of justice, this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Rules.

7. The application is dismissed under r.13.03C(1)(c) of the Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 November 2016