CQK15 v Minister for Immigration
[2017] FCCA 298
•17 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 298 |
| Catchwords: MIGRATION – Judicial review – applicant did not attend the hearing – applicant sent a medical certificate to the respondent – medical certificate is inadequate. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001, r.13.03C(1)(c) |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Singh v Minister for Immigration & Anor [2016] FCCA 429 |
| Applicant: | CQK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2719 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 17 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 February 2017 |
REPRESENTATION
| The Applicant: | No Appearance |
| Counsel for the Respondents: | Ms Kowalewska |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The application filed 9 December 2015 be dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2719 of 2015
| CQK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The solicitor appearing for the first respondent has tendered an affidavit this morning, which annexes correspondence from the applicant to her, annexing a medical certificate. The solicitor has emailed the applicant, informing him that the first respondent does not consent to adjourning the matter and that if he failed to attend Court, they would seek that his application be dismissed with costs. The email also points out that he could seek to attend Court by telephone if unable to appear in person.
She further deposes in that affidavit, that she has made several attempts to telephone the applicant today and that on each occasion that has been unsuccessful. The email from the applicant simply attaching the certificate I will treat this as an application for an adjournment. The medical certificate simply says that the applicant is suffering from a medical condition for the period Thursday 16 February 2017 to Saturday 18 February 2017, inclusive, and says he is unfit to attend his usual occupation.
This falls well short of what is required in support of an adjournment of the final hearing. It says nothing about the applicant being unable to attend Court for the hearing. The certificate gives no indication as to the extent of his unfitness.[1] The applicant filed his application for a judicial review on 9 December 2015. On 11 May 2016 the Registrar made the usual directions which included filing further material and submissions. The applicant has not filed any further documents.
[1] Singh v Minister for Immigration & Anor [2016] FCCA 429; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCA 79.
The matter was originally listed before me for hearing on 8 February 2017, but due to a change in the judicial calendar the date was administratively adjourned to today’s date, and I am satisfied the applicant is on notice of that, and his email has certainly suggested that he was aware that the hearing was today. I have also read the material in the Court Book and the written submissions and it appears without the benefit of hearing from the applicant, that he raises jurisdictional error.
I am mindful of the High Court of Australia authority of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and particularly the comments with respect to case management. This is a busy trial Court that has to juggle many hearings. If this matter was adjourned today, due to the state of listings and delays, it would not be listed for hearing until sometime in 2018. I am not satisfied that there is any usefulness in adjourning the matter. The applicant was on notice that it may be dismissed in his absence if he did not attend. He has been called outside and there is no appearance. I dismiss his application pursuant to r.13.0C(1)(b) of the Federal Circuit Court Rules 2001 (Cth).
The first respondent seeks costs in the sum of $5,800 which is less than the amount provided for in the Federal Circuit Court Scale. I will order that the applicant pay the first respondent’s costs in the sum of $5,800.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 22 February 2017
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