DAS v Minister for Immigration

[2020] FCCA 1143

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1143

Catchwords:
MIGRATION – Application to set aside order pursuant to r.16.05(2)(a) – applicant requested adjournment by email – no attendance by applicant at hearing of application – application dismissed.

Buljubasic v Buljubasic [1999] FLC 92-865

Applicant: VINOD DAS

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 325 of 2019

Judgment of: Judge Jarrett

Hearing date: 6 February 2020

Date of Last Submission: 6 February 2020

Delivered at: Brisbane

Delivered on: 6 February 2020

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. Pursuant to r.13.03C(1)(c) the Application in a Case filed 12 November, 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the Application in a case fixed in the sum of $700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 325 of 2019

VINOD DAS

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application in a case filed on 7 November 2019 was set down for hearing today, and the applicant has not appeared.  He is aware of the hearing date, because at 12:47 pm today he sent my associate an email in which he says that, referring to the hearing later today, he cannot attend because of “the ongoing issue with my health”.  He says that he is suffering from severe back pain “from the last few months”, that he has been advised to have complete bed rest for the next few days, and also to see the “radiology department” for further examination.  He says that he really wanted to attend the hearing today.  He attaches to the email, or sends with it, a medical certificate from an organisation called “Myhealth Sunnybank”, which is in these terms: 

   This is to certify that Vinod is suffering from:  a medical condition, and he has been seen on 6 January 2020 and unfit for work from 6 January 2020 to 18 January 2020.

2. The email might best be construed as an application for an adjournment.  Before dealing with the merits of the application, it is as well to refer to the decision of the Full Court of the Family Court of Australia in Buljubasic v Buljubasic [1999] FLC92-865 delivered on 11 February 1999. In that case, in the judgment of Warnick, of whom Lindonmayer J and Finn J agreed, the following appears:

   Just before I come to that, I think it is appropriate to observe that in this modern day, there seems to be a tendency for people to believe that it is an appropriate way to communicate with Courts, or this Court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial judge.  Ordinarily speaking, that is not a proper way for any litigant to see to communicate with the Court.  Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.

   Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the Court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the Court in person to seek that indulgence, or to send a legal representative on his or her behalf to make a proper application to the Court for that relief.  It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the Court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made. 

3. Here, one may read the references to facsimiles as references to email – times have changed – but the principle is the same;  sending emails to the associate of the judge who is to hear a case at any time, let alone a matter of hours before the case is called, with an implied application for an adjournment is inappropriate.  If the applicant sought an adjournment of today’s proceedings, he was obliged to either appear or send somebody to appear on his behalf to seek the adjournment on proper grounds. 

4. There is no evidence that supports the application for the adjournment.  He relies on medical certificate.  The medical certificate is dated 4 February 2020, that is to say, it was obtained two days ago, and it certifies that he was unfit for work from 6 January 2020 to 18 January 2020.  It says nothing about his unfitness for work now.  Even if his unfitness for work is a measure by which one might conclude he is unfit to come to Court, the certificate is insufficient for that purpose. 

5. I propose to grant no adjournment.  The applicant, if he was indeed incapacitated, could, of course, have applied to appear by telephone, but he has not done that either.  I refuse any application for an adjournment that is constituted by the email dated 6 February, 2020.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 February, 2020.

Associate:

Date:  12 May 2020