DYJ18 v Minister for Immigration

[2020] FCCA 624

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYJ18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 624

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for protection visa – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Applicant: DYJ18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2121 of 2018

Judgment of: Judge Humphreys

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Parramatta

Delivered on: 24 February 2020

REPRESENTATION

Solicitors for the Applicant: No appearance

Solicitors for the Respondents: Ms Ng, Australian Government Solicitor

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2121 of 2018

DYJ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The matter has been listed before the Court today at 2:00pm. The history of the matter is, that it was previously listed 11 December 2019, when the Court was provided with a medical certificate, indicating that the applicant was unable to attend Court due to a medical illness. The Court adjourned the matter and it was listed for today.

2. At approximately 12 midday today, the Court received an email from the applicant, in which he attached a medical certificate. That certificate stated that the applicant was suffering from a medical condition and that he had been advised to stay at home and rest.

3. The Court notes that the medical certificate was, in fact, from another medical practitioner, who practices in the same street as the medical practitioner who provided the first medical certificate. The reason why the applicant would seek to consult a different medical practitioner is not clear, but may give rise to an inference.

4. The applicant was advised that as the medical certificate did not indicate that he was unfit to attend Court and the matter had been adjourned on a previous occasion, given that the Court had been provided with extensive written submissions that in the circumstances, he should appear at Court today. The applicant has not appeared. The Court has waited until 2.15pm and the applicant is still not before the Court.

5. An application has been made to the Court, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), that the matter should be dismissed, due to the non-appearance of the applicant. The Court is satisfied that the applicant has not appeared.

6. The Court is further satisfied, that when it looks at the Administrative Appeals Tribunal’s (“the Tribunal”) decision record, which is the subject of the application before the Court, that the applicant has a history of claiming an incapacity to attend Tribunal or Court hearings.

7. At paragraph 21 of its decision, the Tribunal notes it has considered the letter of 20 March 2018, from the Inner West Pain Centre of Newtown, which the applicant submitted to request to adjourn the hearing of 26 April 2018. The Tribunal also considered the letter dated 9 April 2018, from ASZ Medical Centre of Lakemba, which was also submitted in support of the adjournment application. It appears that there is a track record of seeking or attempting to seek adjournments, on the basis of medical conditions. The Tribunal adjourned the matter from April until June. It appears that the applicant finally appeared before the Tribunal on 27 June 2018.

Consideration

1. In considering whether or not to grant the adjournment, the Court took into account the case management pressures that the Federal Circuit Court faces. There are some 7500 migration applications before this Court, which are outstanding as at 30 June 2019. In the previous 12 months, 5000 applications were received. Only 3500 were, in fact, finalised. This Court is under enormous pressure to finalise applications in the migration docket. Court time is an incredibly valuable resource as a result.

2. For an applicant to make an adjournment application, on the basis of what could be considered somewhat less than convincing grounds, at midday, when the matter is listed for 2:00pm, is simply unacceptable.

Conclusion

1. Accordingly, the Court proposes to grant the application, that this matter be dismissed, pursuant to r.13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  25 March 2020