Brar v Minister for Immigration
[2017] FCCA 1537
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1537 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment – whether necessary to see and be represented by a lawyer – medical certificates – consideration of nature of medical evidence required for adjournment – whether substantive application has merit. |
| Legislation: Migration Regulations 1994 (Cth), Sh.2, cl.572.223(1)(a) |
| Cases cited: AWX16 v Minister for Immigration & Anor [2016] FCCA 928 Myers v Myers [1969] WAR 19 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | KULDEEP KAUR BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 177 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 June 2017 |
| Date of Last Submission: | 22 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the applicant’s application for an adjournment of the hearing today be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 177 of 2016
| KULDEEP KAUR BRAR |
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
| First Respondent |
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This judicial review application was filed on 18 April 2016. In the normal course of events, it went before a Registrar of this Court on a first directions day on 25 May 2016. On that day, the Registrar ordered that the applicant, Kuldeep Kaur Brar (“Ms Brar”) file and serve any amended application, giving complete particulars of each ground of review, and any affidavit containing additional evidence by 27 June 2016, that Ms Brar file and serve written legal submissions 42 days before the hearing, and listed the hearing for today, that is, almost 13 months hence. Ms Brar did not file any amended application, any affidavit or any written legal submissions in accordance with the order of the Registrar, and the matter came on for hearing today.
At the hearing today Ms Brar made an application for an adjournment. The bases for the adjournment application are that Ms Brar:
a)has only just seen her lawyer, whom she saw yesterday;
b)has financial difficulties which she says preclude her from having seen a lawyer previously;
c)has a small child of three years of age; and
d)has a medical condition or conditions, and she provided to the Court a collection of medical certificates (marked as Exhibit 1) indicating that Ms Brar was unfit and had had some surgery in India in relation to her back, and, at their highest, recommended “rest” for three weeks, and a bare medical certificate completed on 19 May 2017 from a local Western Australian medical practitioner (“Current Certificate”), indicating that she was unfit to continue her “usual occupation/school” (whatever that means), for a period up to and including 2 June 2017.
In response to a question from the Court, Ms Brar indicated that there is nothing which would preclude her from making submissions for up to half an hour today which would be something in the normal order of submissions that might be made by an applicant self-represented in her position: in short, she was fit to make submissions. In any event, the medical documentation submitted does not indicate Ms Brar is presently unfit and, to the extent that there is any reliance upon the medical certificates, the Court, having regard to the authorities, which are many, commencing with the Federal Court judgment in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J and culminating in decisions, such as WZAWB v Minister for Immigration & Anor [2016] FCCA 1345 and AWX16 v Minister for Immigration & Anor [2016] FCCA 928 in this Court more recently, clearly indicate that such certificates are unsatisfactory for the purposes of getting any adjournment on medical grounds because, amongst other things, they do not specifically indicate that Ms Brar is unfit to attend Court or why that might be so, and, moreover, is not current.
In relation to the Ms Brar’s plea that she should be given time to see a lawyer, the Court considers that the failure to see a lawyer is a matter of Ms Brar’s own making. She has had something in the order of 14 months since she filed the application to see a lawyer; something in the order of 13 months since the Registrar’s order was made to see a lawyer; and to come to the Court on the day of the hearing saying that a lawyer was only consulted yesterday and to seek an adjournment on that basis is wholly unsatisfactory.
Similarly, in the absence of anything more compelling, the fact Ms Brar has a three year old child is not a reason for an adjournment to be granted. Were an adjournment to be granted simply because a party has a small child and is self-represented, then there would be very many hearings in this Court which would be adjourned.
In determining whether to grant an adjournment, the court takes into account a list of factors, including case management factors. Critically, if this case were to be adjourned today it would be unlikely to be relisted until sometime in 2020, such is the caseload of this Court in migration matters in the Perth Registry. That weighs heavily against the grant of the adjournment. So too do the factors which the Court has otherwise dealt with above.
In relation to the adjournment application, and without deciding the substantive application, but dealing with it on face value, the merits of the substantive application are weak essentially for the reasons set out in the Minister’s submissions, essentially because the exercise of the Administrative Appeals Tribunal’s discretion in determining whether Ms Brar met the temporary student visa criteria, and in particular whether she “intended genuinely to stay in Australia temporarily”: Migration Regulations 1994 (Cth), Sch.2, cl.572.223(1)(a), did not miscarry and the Administrative Appeals Tribunal’s Decision was not affected by jurisdictional error. That is also a significant factor which weighs against an adjournment being granted.
The exercise of the grant of an adjournment is an exercise of discretion of the broadest kind by the Court, and the Court refers to its judgment in MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 and to the judgment of the Western Australian Supreme Court in Myers v Myers [1969] WAR 19 at 21 per Jackson J in support of that proposition.
Essentially, for the reasons that the Court has outlined, and particularly taking into account Ms Brar’s failure to act earlier, the unsatisfactory nature of the medical certification, the case management issues to which the Court has referred, and the seeming lack of merit of the substantive application, the application for an adjournment is refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 5 July 2017
0
4
2