BJP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 45
•28 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 45
File number(s): MLG 1182 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 28 January 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Sri Lanka – refusal of Class XA Subclass 866 Protection visa.
PRACTICE AND PROCEDURE – Adjournment – where no appearance by applicant – where affidavit and medical certificate re mental health issues – whether further opportunity to make submissions and appear ought to be given – factors for consideration – overarching civil practice and procedure provisions.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s.190
Migration Act 1958 (Cth), s.476Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Aon Risk ServicesAustralia Pty Ltdv Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Sali v SPCLtd [1993] HCA 47; (1993) 67 ALJR 841; (1993) 116 ALR 625
Singh v Minister for Immigration and Border Protection [2016] FCA 108
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 28 January 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr C Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1182 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJP16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.
The hearing of the matter be adjourned to 10.00am AWST/1.00pm AEDT on
24 February 2022.
2.
The Applicant pay the First Respondent’s costs of today in the sum of $1178 by
28 February 2022.
3.The Applicant file and serve a written outline of submissions in relation to the substantive application by 17 February 2022.
4.
The First Respondent file and serve any written outline of submissions in reply by
22 February 2022.
5.
If the Applicant does not appear for whatever reason at the adjourned hearing on
24 February 2022
a) and has filed written submissions pursuant to order 3 above, the matter will be determined having regard to those written submissions; or
b) and has not filed written submissions pursuant to order 3 above, the matter will be determined in any event on the basis of the materials otherwise filed.
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
(Delivered Ex Tempore and Revised from Transcript)
JUDGE LUCEV
These are the Court’s ex tempore reasons in relation to an adjournment application, or what the Court is taking to be an adjournment application, made by the applicant, BJP16, who has not appeared at the hearing this morning. The Court has before it an originating application filed by BJP16 on 6 June 2016, seeking judicial review under s 476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively), dated 19 May 2016, affirming a decision of a delegate of the first respondent (“Delegate” and “Delegate’s Decision” respectively) to refuse to grant BJP16 a Class XA Subclass 866 Protection visa (“Protection Visa”).
By way of observation in relation to the issues arising with respect to the adjournment, it is necessary to observe that there has been a significant delay in this matter coming to hearing.
It is well known and acknowledged by the Court that matters filed in the Melbourne Registry have been the subject of very significant delays in being brought before a Judge of the Court for hearing, and this is such a case: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev. Without going through the detail, it suffices to observe that this matter has been adjourned, by the Court’s quick count, at least six times in the Melbourne Registry. On only one of those occasions was an explanation proffered to the parties, and that was in relation to an adjournment in April 2020, by reason of COVID-19 restrictions then existing in Victoria.
The matter was ultimately, after a further adjournment after those COVID-19 restrictions, transferred to the Perth Registry of the Court in June 2021, and on 16 June 2021,
the National Migration Law Judge, Judge Kendall, listed the matter before the Court for a hearing today. There was a directions hearing on 23 July 2021, at which earlier orders made by a Registrar on 9 September 2016 for the filing, amongst other things, of an amended application and written submissions, were set aside and the Court made further orders that BJP16 file and serve an amended application and written submissions by 23 November 2021.
It suffices to observe that nothing was filed by BJP16, and the matter has come on for hearing today.
This morning, at 8.11 am AWST, that is, less than two hours before the time listed for the commencement of the hearing, BJP16 forwarded to the Melbourne Registry of the Court
an affidavit in which he deposes to certain matters, including the following (unaltered):
3. I wanted to attend the hearing but I was not aware that my health will deteriorate and it won't allow me to attend the hearing.
4.I am mentally unstable to attend the hearing due to anxiety and stress. I have been getting reoccurring anxiety attacks which are very dangerous.
5.I am worried about the outcome of the hearing as my life depends upon the decision that would be made by the respected court.
6.Since I am suffering through severe anxiety and stress, I will not be able to attend the hearing. The doctor has advised me to take good care of his health.
7.Therefore, it a sincere request to the Honourable Judge to consider my exceptional circumstances and my condition under humanitarian grounds and provide me a different date to attend the hearing.
8.I hope Federal Circuit and Family Court of Australia will understand my problem and kindly allocate my matter to an another date
Effectively, the Court has taken what is said there to be in support of an application for adjournment of the proceedings. Annexed to that affidavit is a medical certificate.
The medical certificate is in the following terms (unaltered):
This is to certify that [BJP16] is unable to work from 27/01/2022 to 28/01/2022 inclusive, due to a medical condition.(Acute stress reaction, anxiety, and depression)
He presented to me today, he reported his regular doctor is away.
I have strated him on some medications and referred him to a counsellor
He is particularly stressed because of his upcoming court case tomorrow and would be happy if you can consider adjorning his case until he is more stable mentally.There is also attached a prescription for medication.
The adjournment is opposed by the Minister, and the Minister has submitted that:
(a)the evidence is not adequate for the purposes of supporting an adjournment;
(b)there is no indication that BJP16 is unable to attend a hearing, or why BJP16 might be unable to attend a hearing, and in particular one by videolink (or, the Court might add, by telephone); and
(c)there is no indication that BJP16 is, in fact, unfit for the purposes of the Court hearing.
It is also said by the Minister that in the affidavit it is expressed as a preference of the doctor that BJP16 is not to attend the hearing, and it is pointed out by the Minister that matters such as stress are a common feature in relation to persons who might be required to attend proceedings such as this, and do not provide a foundation for the adjournment of proceedings, particularly in circumstances where BJP16 has been prescribed medication which, it is said,
if he uses it, might alleviate the concerns or the condition that he otherwise might have.
It is also said that if it is a question of stress brought on by the prospect of a hearing, then it is likely that the same thing will occur again, and further costs and delay will arise if the matter is adjourned.
The Court notes the relevant law with respect to the issue of medical certificates of this type, in the broad sense, set out in a series of judgments of the Federal Court:
see NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559; Singh v Minister for Immigration and Border Protection [2016] FCA 108 and AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCA 815 (“AAL17”). It suffices for present purposes to quote from AAL17 at [19] per Lee J,
where the Federal Court observed as follows:
I have set out above the adjournment request. In my view, the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:
The medical certificates do not purport to address the critical question of whether, and if so, why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that –
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.
The Court notes that those authorities are conveniently collected in the recent judgment of this Court in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [84] to [86] per Judge Lucev. The Court also notes that it is necessary that it comply with, or have regard to, the over-arching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which, reduced to their essence, require the Court to consider:
(a)whether what it proposes might facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible; and
(b)to avoid undue delay, expense, and technicality.
The Court observes that the medical certificate in this matter is not entirely bare, as so many are, but does provide some indication as to the medical condition said to be suffered by BJP16, and is supported by an affidavit in which BJP16 seeks to explain his position as to why he says he cannot attend Court. The Court notes that the medical certificate does not, as properly pointed out by the Minister, truly account for why it is and how it is that BJP16 cannot attend a hearing which has been listed by video link, and also that the medical certificate only covers two days, namely, yesterday and today.
The Court also notes that there does not appear to be any prior indication in any of the materials on the Court file of any medical condition suffered by BJP16. It is also true to say that the application for an adjournment, made less than two hours before the commencement of this hearing is very late; metaphorically, at the last minute, and therefore unsatisfactory,
particularly in circumstances where it appears that the medical certificate was provided to BJP16 some time yesterday.
The Court is required to balance the competing considerations; in this case, many of those considerations, some of which the Court has already adverted to at [8] above, do powerfully support the Minister’s opposition to the proposed adjournment. They include the, relatively,
in this case, unsatisfactory nature of the bare medical certificate provided, and the fact that no submissions had been filed by BJP16 in any event in compliance with orders of the Court.
As the Court has already observed, this is a matter which has already been much delayed but not delayed by any fault of the parties, and in particular not by BJP16. This the first occasion on which the matter has actually got to a listed final hearing and the first occasion on which any party, here, BJP16, has sought an adjournment of the proceedings.
The Court, as it has already indicated at [10] above, is conscious of the overarching civil practice and procedure requirements and the fact that if there is an adjournment there will be a further delay, that there will be further costs incurred not only to the Minister but also ultimately to the taxpayer and there will be further Court time incurred. The Court observes that as a result of the half dozen or so previous adjournments there has not been any Court time expended until today, the Court also, in that context, notes that, fortuitously, the matter can be listed again at relatively short notice and on a day which will not cause delay or hindrance to other applicants, and in that regard the Court has taken into account the considerations flowing from the
High Court judgments in Aon Risk ServicesAustralia Pty Ltdv Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [5] per French CJ and Sali v SPCLtd [1993] HCA 47; (1993) 67 ALJR 841; (1993) 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ when applying the provisions of s 190 of the FCAFCOA Act.
Having regard to those matters and having contemplated them and balanced them, the Court also takes into consideration the fact that if the matter is adjourned it may be that BJP16 has some time to recover from the alleged medical condition. It may be that he has time to file submissions as the Court will make further orders in that regard, and for the Minister to respond to those submissions, so that the Court is in a position where it has proper written submissions from both parties, which it does not presently have. And in those circumstances the Court, it must be observed very, very reluctantly, is prepared to adjourn the matter for a short period. The orders that the Court therefore proposes to make are to allow for an adjournment but the Court stresses that it is of the utmost importance that BJP16 file written submissions in this matter.
If BJP16 is not fit to appear at the adjourned hearing on 24 February 2022 or simply does not appear, it is the Court’s intention to determine the matter on the basis of either the written submissions which have been filed or, if no written submissions are filed, on the papers on the Court file in any event. In that regard the Court also has regard to the fact that there is but a single ground of review which effectively asserts that the Tribunal disregarded or failed to consider the evidence and that, on the face of the matter, the matter is not a particularly complex one.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 3 February 2022
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