AUO22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 110
Federal Circuit and Family Court of Australia
(DIVISION 2)
AUO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 110
File number: PEG 27 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 February 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for a directions hearing – no appearance by or for the applicants – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(d) Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 9 February 2023 Place: Perth Applicants: No appearance by or for the applicants Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 27 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUO22
First Applicant
AUP22
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The request from the first applicant made via email on 7 February 2023 for an adjournment of the final hearing in this matter be taken as an adjournment request and the requirement for the applicants to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) be dispensed with.
3.The interlocutory application for an adjournment made by the first applicant on 7 February 2023 be dismissed pursuant to r 13.06(1)(d) of the Rules.
4.No order as to costs.
5.Written reasons for judgment in relation to the interlocutory application for an adjournment to be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This interlocutory hearing (adjournment request) was listed before the Court for a directions hearing at 10.00am on 9 February 2023. When the matter was called, there was no appearance by or for the applicants.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The request from the first applicant made via email on 7 February 2023 for an adjournment of the final hearing in this matter be taken as an adjournment request and the requirement for the applicants to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) be dispensed with.
3.The interlocutory application for an adjournment made by the first applicant on 7 February 2023 be dismissed pursuant to r 13.06(1)(d) of the Rules.
4. No order as to costs.
5.Written reasons for judgment in relation to the interlocutory application for an adjournment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the interlocutory application for an adjournment for non-appearance.
Background
This matter was listed for a final hearing of the substantive application on 9 February 2023 at 10.00am. The parties were notified of that listing by my chambers (via email) on 15 May 2022.
On 4 February 2023, the parties were reminded of the date, time and location of the hearing by my chambers. They were also provided instructions for an “in person” attendance at the Court.
On 7 February 2023 at 6.17pm, the first applicant wrote to the Court via email stating (without alteration):
We are sorry, [second applicant] is seriouly ill. Could you please delay the hearing? Please refer to the attached medcial letter.
We apologise for the inconvenience. Thank you.
Best regards,
[first applicant]
With that email correspondence, the first applicant provided a medical certificate dated 7 February 2023. That medical certificate stated (without alteration):
This is to certify that
I have medically assessed, [second applicant], who in my opinion is suffering from a medical condition and he will be UNFIT to continue his usual occupation for the period 08/02/2023 to 10/02/2023 inclusive.
This Certificate was completed on 07/02/2023.
On 8 February 2023, my chambers wrote to the parties as follows:
His Honour Judge Kendall notes that the applicants have not filed an application in a proceeding requesting an adjournment. However, noting that the applicants are self-represented, His Honour is willing to consider the request below in its current form. His Honour does note, however, that the evidence provided (copy attached) in support of the adjournment request does not explain to the Court why the applicants are unable to participate in a Court hearing via video link, or, indeed, why the applicants are unable to participate in a court hearing more generally. In the circumstances, His Honour Judge Kendall considers it appropriate for the matter to be listed for a directions hearing followed by a final hearing (if deemed appropriate) tomorrow (Thursday, 9 February 2023 at 10.00am).
The purpose of the directions hearing is to allow His Honour to have a conversation with the parties about the request for an adjournment. Should His Honour determine that the matter cannot proceed to a final hearing, the hearing will be vacated and the matter re-listed for a final hearing at a later date. If His Honour considers that the matter can proceed to a final hearing, the matter will be heard immediately following the directions hearing.
For the avoidance of confusion, Chambers confirms that the parties should be prepared to proceed to a final hearing tomorrow (9 February 2023) if His Honour considers it appropriate to do so. In the event that the applicants are unable to attend the Court in person tomorrow, His Honour has granted leave for the applicants to appear via video link (using Microsoft Teams). Instructions in relation to attendance via video link are set out below.
His Honour also requests that the Minister provide its position in relation to the adjournment request by close of business today.
The applicants were also provided instructions on how they could appear at the directions hearing via video link.
Later that day, also on 8 February 2023, Ms Madisen Scott (“Ms Scott”), solicitor for the first respondent (the “Minister”), wrote to the Court advising that the Minister opposed the application for an adjournment for the following reasons:
As requested, my instructions are that the Minister opposes any application for an adjournment of the final hearing listed for 9 February 2023, on the basis that the medical certificate provided is non-descript and therefore does not provide a proper basis for an adjournment on medical grounds.
A medical certificate indicating an individual is ‘not fit for work’ is insufficient to support a finding that the applicants are not fit to travel to Court and participate in a hearing: Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. Nor is the medical certificate sufficient to conclude that the applicants are unable to participate in an electronic hearing, as the Court has proposed.
Should the applicants fail to attend the hearing tomorrow, in person or via web-link, the Minister may seek to have the matter dismissed, with costs.
Later that evening, also on 8 February 2023, my chambers confirmed to the parties that the matter remained listed on 9 February 2023 at 10.00am.
As outlined above, when the matter came before this Court (on 9 February 2023), despite the matter being called three times, there was no appearance by or for the applicants. Ms Scott appeared on behalf of the Minister.
The Court indicated that it was prepared to accept the applicants’ earlier email the Court as an interlocutory request for an adjournment and was prepared to proceed on that basis.
Ms Scott advised the Court that the Minister opposed the adjournment request. Ms Scott also told the Court that the Minister would also be agreeable to the adjournment application being dismissed pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) if the Court was minded to do so. Ms Scott also advised the Court that the Minister would not seek costs in relation to the adjournment request.
Correspondence from my chambers (as outlined above) was tendered and referenced as Exhibit 1.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicants had been properly notified of the interlocutory hearing and how they could appear (either in person or via video link).
Conclusion
In the circumstances, the Court made orders to dismiss the application for an adjournment for non-appearance, as outlined at [2] above.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2023
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