Begum v Minister for Immigration

[2018] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGUM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 398

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for Protection visas by wife and husband – refusal of adjournment application of final hearing made in writing by the First Applicant wife.

First Applicant: NAZEMA BEGUM

Second Applicant: ZAFFAR ABDUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3570 of 2016

Judgment of: Judge Dowdy

Hearing date: 21 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Sydney

Delivered on: 21 February 2018

REPRESENTATION

The First Applicant communicated by email with the Court seeking an adjournment.

Counsel for the First Respondent: Mr T Reilly of Counsel

Solicitors for the First Respondent: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3570 of 2016

NAZEMA BEGUM

First Applicant

ZAFFAR ABDUL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Application for Adjournment

1. This judgment, delivered at the commencement of the scheduled final hearing on 21 February 2018, gives my reasons for refusing an earlier written request by the First Applicant for an adjournment of the final hearing set down for that date.

2. By email dated 8 February 2018, the First Applicant, who is the substantive visa holder for the purposes of this proceeding, sent an email to the Court in which she stated:

   Good morning,

   I am nazema begum and my file no SYG:3570/2016 as I would like to inform to honourable Judge of my case that due to some extreme health complication I unable  to attend my upcoming hearing of case related to refusal of 457 nomination and cancellation of visa . I have been to my doctor recently as she ask to avoid any stress in regards to past medical history.

   So I am requesting to honourable Judge give me at least 3 or 4 month more time so I can overcome of health issues and can attend my future hearing. I am not excusing myself but I need some more time to attend the hearing.

   Please check below attachment and if you need more information please let me know. I hope to get positivity Ve response from honourable judge.

   Thanks

   Nazema begum

3. At the same time there was also submitted to the Court a medical report from the Chullora Marketplace Medical Centre. It was dated, somewhat strangely, Wednesday 19 July 2017.  It is in substance, both as to date and contents, the same as a medical report from the same medical centre sent to the Court on 24 July 2017 to excuse non-appearance by the First Applicant at a Court callover hearing on 14 July 2017.  That report was also used by the First Applicant in aid of seeking that the Court give her more time to overcome “health issues”, before the Court set down the proceeding for final hearing.

4. In the result, my Associate advised the Applicants and the Minister on 26 July 2017 that the hearing would be set down for 21 February 2018, that is today.  As I have said, the previous medical report utilised in July 2017 was almost in exactly the same terms as the one sent on 8 February of this month, except for the addition of some basically irrelevant information.  Irrelevant in the sense of not indicating any proper reason why the First Applicant could not meaningfully participate in the hearing of her case today.

5. The medical report sent on 8 February 2018 bears all the hallmarks of a pro forma document.  It ended with the words:

   Please delay the hearing until her mental state has improved;

   referring to the First Applicant.  However, there is nothing in the medical report itself going to the mental state of the First Applicant or indicating that she could not meaningfully participate in today’s hearing. 

6. The Minister indicated by email forwarded on 15 February 2018 that he opposed any adjournment. In the email sent on his behalf the Minister indicated that he would be content for the First Applicant to appear by telephone. By email dated 15 February 2018 my Associate wrote to the First Applicant advising that her adjournment application was refused, as follows:

   Dear Madam Applicant,

   With reference to your email of 8 February 2018 requesting an adjournment of the final hearing of your Application scheduled for Wednesday 21 February 2018, the purpose of this email is to advise you that his Honour is not prepared to adjourn that final hearing on the basis of your email and attached Medical Certificate.

   Accordingly you and the Second Applicant should appear on 21 February 2018 at 10.15 in Court 8.2. However, as to yourself, as an alternative to actual appearance in Court you may wish to take up the Minister’s preparedness to have you appear by telephone and his Honour would be prepared to sanction that course if you wanted to adopt it. If you do want to appear by telephone please let us know as soon as possible, and please advise your telephone number.

   Alternatively, you may wish the Second Applicant to address the Court on your behalf.

   Kind regards,

   Deputy Associate to Judge Dowdy

7. The email response on 16 February 2018 of the First Applicant was as follows:

   Good morning All,

   I may be unable to attend the hearing on 21 February at 10:15 but my husband who is second applicant will be representing me on my behalf if there is no issue.

   Thanks

   Nazema begum

Consideration

1. This matter commenced in this Court as long ago as 15 December 2016.  The First Applicant had ample time to get ready for the hearing of the case.  If the matter had been adjourned, costs would have been unlikely to be recoverable by the Minister and would have required an adjournment to the second half of 2019, having regard to the fact that I am docketed to the second half of 2019 unless I displaced another case already set down for hearing.

2. In the circumstances I was of the view that it was not in the interests of justice to adjourn the hearing and I refused to do so. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:  23 February 2018