Bakul and Sabri

[2019] FCCA 2299

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKUL & SABRI [2019] FCCA 2299

Catchwords:
FAMILY LAW – Application for review of Registrar’s decision not to abridge time for hearing – where there is no evidence application for review was served on respondent – where applicant seeks an Airport Watchlist order after previously consenting to its removal – where circumstances do not provide basis for concluding matter should be accorded urgency – application refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.20.02, 20.03

Applicant: MR BAKUL

Respondent: MS SABRI

File Number: MLC 277 of 2019

Judgment of: Judge A Kelly

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Melbourne

Delivered on: 1 August 2019

REPRESENTATION

The Applicant: In Person

The Respondent: No Appearance

ORDERS

1. The application filed on 18 July 2019 is refused.

IT IS NOTED that publication of this judgment under the pseudonym Bakul & Sabri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 277 of 2019

MR BAKUL

Applicant

And

MS SABRI

Respondent

REASONS FOR JUDGMENT
(Ex tempore revised from transcript)

Introduction

1. These reasons for judgment explain my conclusions respecting an application for review of a decision of a Registrar of the court made on 17 July 2019 refusing the applicant’s request that his further initiating application be listed for urgent hearing.

2. The history of the matter is somewhat complex.  It is convenient to have regard to its history, including submissions made by the applicant orally before me this day. 

3. As the applicant confirms, on 16 September 2014 he applied for a partner visa under the Migration Act 1958 (Cth), doing so on the basis of his relationship with his then sponsor. The application was refused by a delegate of the Minister. The applicant made application for a merits review of that decision by the then Migration and Refugee Division of the Administrative Appeals Tribunal.

4. On 18 September 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa.  On 16 October 2017, the applicant filed an application for judicial review of the Tribunal’s decision on the grounds, amongst others, that this court take into consideration all of the circumstances of “the matter and grant me justice”.  Although the matter remained in my docket for some time, on 3 May 2019, the applicant filed a notice of discontinuance.  An order was made that the applicant pay the costs of the Minister for Immigration and Border Protection.

5. During the period, on 11 January 2019, the applicant filed an initiating application seeking relief under the Family Law Act 1975 (Cth) respecting parental responsibility and that the applicant be permitted to particularise the live-with and spend-time arrangements “at a later date”.

6. By that initiating application, interim urgent relief was sought that the time for hearing the application be abridged, the applicant be granted leave to proceed ex parte and that an Airport Watchlist order be made respecting the child of the applicant’s new relationship with a new partner, the respondent, Ms Sabri (the mother).  The child was born on … 2017.

7. The application filed on 11 January 2019 was supported by an affidavit affirmed by the applicant on that date in which he asked that the court “make these orders on an urgent ex parte basis”.

8. The parties evidently conferred with lawyers the assistance provided by Victoria Legal Aid and duty law services.  The applicant confirmed before me that on 18 January 2019 the parties had reached agreement and, accordingly, that the applicant wished to discontinue the proceeding.  In the result, on 21 January 2019, a final order was made, by consent, that the child be permitted to leave the Commonwealth of Australia and that the name of the child be removed from the Airport Watchlist.

9. On 17 July 2019, the applicant filed a further initiating application in which he again sought an Airport Watchlist order and, again, that interim relief be granted permitting that the application be abridged, the applicant be permitted to proceed ex parte and that the child be prevented from leaving the Commonwealth of Australia.  The application for a further Airport Watchlist order was supported by an affidavit made by the applicant on 16 July 2019, which I have considered.

10. In relation to the application to abridge time for an urgent hearing, a notation by the Registrar made on 17 July 2019 reads:

    Applicant sent an AFP Watchlist Request Form – there was a previous Watchlist order made that was removed by consent – no priority for this applicant.

11. It was in those circumstances that the applicant filed an application for review on 18 July 2019 which was filed by reason of the refusal of his (second) request for an urgent listing.  The matter is presently listed in a duty list on 21 October 2019. 

12. Before me, the applicant relied upon three particular matters which he emphasised as supporting a conclusion that his hearing should be given urgent priority.

13. Firstly, it was said that the applicant has not seen his child for eight months and that he is “getting stressed out”.  The applicant said that he should have a place in the life of his child and that he was prevented from doing so because his new partner had secured an intervention order against him at a time when he was “not in Australia”.

14. Secondly, the applicant says that he has injuries arising from a motor vehicle accident in 2018.  With leave, the applicant was permitted to tender certain documents relating to this accident.  In particular, the certificate of capacity issued by the Transport Accident Commission dated 21 July 2019 records that a diagnosis was made of the following injuries: lower back and left knee; facetal synovitis L4-5 and L5-S1 bilaterally, multiple level disc bulging without impingement and concave right scoliosis. 

15. A further diagnosis was made of peripheral tearing of medial meniscal posterior horn sprain of MCL (left knee) for which surgery has been arranged but not yet undertaken. 

16. In addition, the applicant, again with leave, tendered a report dated 22 July 2019 from Pain Specialists Australia.  The detailed report was, in effect, a submission seeking financial aid for a particular form of therapy.  It referred to previous correspondence with the applicant’s treating medical practitioner on 21 May 2019, a copy of which was not provided.  The report includes the following:

    . . . despite everything that his body has been through, he is actually healthy and well and his body is capable of doing what he needs it do for him.  He was very happy with this and he is starting to understand the merit of pain literacy, pain understanding and moving from passive to an active management stance.

17. Thirdly, the applicant submitted that he was being “blackmailed” by his new partner in relation to his immigration status.

18. By Rule 20.02 of the Federal Circuit Court Rules 2001 (Cth), an applicant may seek review of an exercise of power by a Registrar. In the present case, the application was lodged within the time stipulated for doing so: r 20.02(2). There is no evidence that the application has been served on the respondent: r 20.02(3)

19. Where an applicant seeks review of the exercise of power by a Registrar, the court must proceed by way of a hearing de novo and may receive evidence including, with leave, further evidence in addition to that which was before the Registrar: r 20.03(a)-(d).

20. In my opinion, nothing in the history or circumstances of the present application provides any basis for a conclusion that the matter should be accorded an urgent hearing as is sought.  Nor does it provide any basis upon which to support a conclusion that the applicant should be granted leave to proceed ex parte.  The history of the matter to date indicates significant delay on the part of the applicant coupled with his confirmed consent to the removal of an earlier Airport Watchlist order.  In all of those circumstances, the application is refused.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date: 1 August 2019