Faizan-Ul-Hasnain v Minister for Home Affairs

[2019] FCCA 162

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIZAN-UL-HASNAIN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 162

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – Application for adjournment – adjournment refused – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) s.13.03C

Migration Act 1958 (Cth), s.347

Migration Regulations 1994 (Cth), reg.4.10

Cases cited:

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

FCA 1559

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

Applicant: FAIZAN-UL-HASNAIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1915 of 2018

Judgment of: Judge Emmett

Hearing date: 29 January 2019

Date of Last Submission: 29 January 2019

Delivered at: Sydney

Delivered on: 29 January 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1915 of 2018

FAIZAN-UL-HASNAIN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Adjournment Application

1. By email received this morning at 4:46am, the applicant sought an adjournment of today’s directions hearing, on the basis of medical incapacity. The applicant stated as follows in the email:

   “Dear Sir/Madam,

   FAIZAN-UL-HASNAIN v MINISTER FOR HOME AFFAIRS & ANOR (SYG1915/2018)

   I refer to the above matter and below correspondence.

   Most respectfully I would like to request that I’m suffering through really bad situation my Medical Certificates attached below, I’m not able to come if you grant me another date for hearing that will be really helpful for me.

   Thanks in anticipation.

   Faizan-Ul-Hasnain.”

2. Attached to the email was a medical certificate in the following terms:

   “Medical Certificate

   THIS IS TO CERTIFY THAT ON THE 28^th January 2019

   I EXAMINED: Mr Faizan Ul-Hasnain, (DOB:16/2/1992)

   15/39 Kentucky Road

   RIVERWOOD NSW 2210

   WHO IN MY OPINION IS SUFFERING FROM A Anxiety Disorder and General Fatigue

   AND WILL BE*

   UNFIT TO CONTINUE USUAL OCCUPATION OR STUDY

   FROM 29/1/2019 TO 31/1/2019 INCLUSIVE

   Dr Mohamed Keritam

   5541021H

   MBBS”

3. Also attached to that email were prescriptions for medication together with a referral to Dr Keritam, the author of the medical certificate. 

4. The first respondent opposes the adjournment on the basis of the inadequacy of the medical certificate. 

5. Certainly, the medical certificate does not address the critical question of whether and, if so, why the medical condition diagnosed would prevent the applicant from travelling to Court and participating effectively in a hearing (see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J).

6. I am not satisfied, on the evidence before me, that a diagnosis of “Anxiety Disorder and General Fatigue” renders the applicant unable to attend Court.

7. Accordingly, the application for an adjournment is refused.

Dismissal for Non-Appearance

1. The first respondent seeks an order that the proceeding before this Court, commenced by application, filed on 10 July 2018, be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), by reason of the failure of the applicant to attend today’s scheduled directions hearing. 

2. On 14 December 2018, by consent, the matter was listed for directions today at 9:30am before me. I note that the order made that day provided the location of the courtroom. In any event, the communication received from the applicant this morning by email at 4:46am makes clear that the applicant was aware of today’s directions hearing and sought an adjournment of that hearing. That adjournment application was refused. 

3. The matter has been called on at least two occasions outside the courtroom. There has been no other communication received from the applicant, either by the first respondent’s solicitors or the Court.

4. I note that the issue in this proceeding was whether the Administrative Appeals Tribunal’s (“the Tribunal”) determination that it had no jurisdiction to consider the application for review lodged by the applicant with the Tribunal on 27 April 2018, on the basis that the application was outside the mandatory 21 day period prescribed by s.347(1)(b) of the Migration Act 1958 (Cth) and reg.4.10 of the Migration Regulations 1994 (Cth).

5. The matter was stood over by me on 20 November 2018 pending a decision of the Full Court of the Federal Court of Australia in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (“Beni”).

6. On 14 December 2018, that decision was handed down.

7. In Beni the Full Court of the Federal Court of Australia determined that there was no power in the Tribunal to extend further time to an applicant beyond the mandatory statutory period.

8. In the circumstances, the application filed by the applicant on 10 July 2018 would appear to have no prospect of success, in which case there is no utility in doing other than dismissing the proceeding for non-appearance. 

9. Accordingly, the proceeding before this Court, commenced by way of application, filed on 10 July 2018, should be dismissed, pursuant to rule 13.03C(1)(c) of the Rules, by reason of the failure of the applicant to attend today’s scheduled directions hearing.

10. The applicant’s application should be dismissed with costs. 

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

Date: 1 February 2019