DUD16 v Minister for Immigration

[2020] FCCA 2378

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUD16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2378

Catchwords:
MIGRATION – Application for review of the decision of the Immigration Assessment Authority – application for adjournment refused – no appearance by or on behalf of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: DUD16

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3492 of 2016

Judgment of: Judge Nicholls

Hearing date: 7 February 2020

Date of Last Submission: 7 February 2020

Delivered at: Sydney

Delivered on: 7 February 2020

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Mr Jonathan Kay Hoyle

Legal Representative for the Respondent: Mr Edwin Taylor

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The applicant’s request for an adjournment made on 5 February 2020 is refused.

3. The application made on 7 December 2016 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant pay the first respondent’s costs set in the amount of $6500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3492 of 2016

DUD16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 December 2016 seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 2 November 2016 which affirmed the decision of the Minister’s delegate to refuse a Safe Haven Enterprise Visa (“SHEV”) (“protection visa”) (“the visa”) to the applicant.

2. In evidence before the Court is email correspondence dated 6 February 2020 between the Minister, the Court’s Registry, and the applicant (“RE1”). The correspondence concerns the Minister’s response to the applicant’s request for an adjournment of today’s hearing.

3. On 18 September 2019, the parties appeared before me at a directions hearing. On this date the Court made orders, setting the matter down for final hearing, today (7 February 2020).

Request for adjournment

1. The applicant sent an email to the Court on 5 February 2020, attaching a medical certificate and seeking an adjournment of the hearing.

2. The application for the adjournment is to be refused. The medical certificate lacked relevant detail and substance. It is in the following terms:

   “…This is to certify that:

   [DUD16]

   is receiving medical treatment / investigation for:

   Medical condition – Severe Anxiety and depression.

   He is not mentally fit to attend the court…”

3. It is not possible to grant an adjournment in a matter that has been before the Court since 2016 on a mere two general lines from a medical practitioner, which do not address relevant details as to the applicant’s claimed inability to participate at the hearing.

4. There is nothing in the medical certificate to indicate the length of time that the applicant has been suffering from this condition. The applicant made no mention of it in Court on 18 September 2019. He appeared in person, handed up a document which I treated in the nature of submissions. Therefore, at least as at 18 September 2019, there was no indication of any difficulty on behalf of the applicant in appearing before the Court.

5. Some indication from the medical practitioner that perhaps he had some method by which he came to this conclusion as stated in the medical certificate would have been of assistance, so that it would give some substance to understanding the conclusion that he has reached based on the diagnosis that he has made.

6. That is the critical part. I agree with the Minister’s submissions that the certificate proceeds from a bare statement of an assertion of a medical condition to a conclusion that the applicant could not attend court with no explanation whatsoever.

7. The issue now is whether it is in the interests of justice that the matter be adjourned.

8. There is nothing from the applicant to indicate when he says he would be available for a hearing. The lack of detail in the medical certificate means it cannot be known to when the matter could even be adjourned.

9. I also note, that the Minister proposed in his correspondence with the Court’s registry (RE1), that they would be agreeable to the applicant appearing by telephone. However, such a request was not made by the applicant.

10. It is appropriate that the adjournment application be refused. I cannot see that it is in the interests of justice that a case that has been going on for four years now, in one way or another, is further prolonged in circumstances where there is a dearth of information as to why the applicant cannot attend or participate in the hearing, even by way of telephone.

Non-attendance

1. When the matter was called today, there was no appearance by or on behalf of the applicant. I note, it is now well over 25 minutes after the scheduled hearing time. 

2. The Minister requested that the substantive application be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), on account of the applicant’s non-attendance today.

3. I need to be satisfied that the applicant had notice of the Court event today. Having regard to what the Court told the applicant on 18 December 2019, and the orders made on that date in his presence, and having regard to RE1, I am satisfied the applicant had notice of the Court event today. The fact that he sought an adjournment, indicates that he was on notice of the Court event.

4. Further, while there is some explanation for the non-attendance, that is, the matters, albeit briefly, set out in the medical certificate, as set out before, that is not a satisfactory explanation such that the order should not be made. I therefore, will make the order the Minister seeks. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 August 2020