Gujjar v Minister for Immigration

[2018] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUJJAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2074

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Medical visa application – non-appearance at final hearing by Applicant – Applicant able to appear but gives preference to attending a mediation before a Registrar of this Court in Canberra which mediation date was set down two months after the final hearing in this proceeding had been set down – application dismissed with costs pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.477
Federal Circuit Court Rules 2001 (Cth)

Applicant: ABDUL RASHID GUJJAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3282 of 2017

Judgment of: Judge Dowdy

Hearing date: 21 June 2018

Delivered at: Sydney

Delivered on: 21 June 2018

REPRESENTATION

No appearance by or for the Applicant.

Counsel for the First  Respondent: Mr C. Robertson

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 October 2017 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $4,040.

3. In the event that the Applicant files an Application in a Case to set aside the dismissal today of his Application, he is to be prepared, on the first return date of his said application:

   (a)to run his application to set aside the dismissal; and

   (b)to run his substantive application for relief with respect to the Tribunal decision below.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3282 of 2017

ABDUL RASHID GUJJAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The First Respondent through his solicitor, Mr Robertson, seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (the Rules) that the present proceeding before this Court, commenced by way of Application filed by the Applicant on 24 October 2017, be dismissed by reason of the failure of the Applicant to appear at today’s scheduled final hearing.

2. I note that by his said Application the Applicant sought an extension of time of approximately 21 days under s.477(2) of the Migration Act 1958 (Cth) to bring his substantive application to quash the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 August 2017 and impliedly to have his application for a Medical Treatment (Visitor) (Class UB) visa (Medical visa) remitted to the Tribunal for redetermination according to law.

3. I note that the matter was called outside the Court three times at 10:18am and called again three times at 10:47am and on neither occasion did the Applicant appear.

4. In this matter, the first directions hearing took place on 9 February 2018 when the Applicant appeared in person and Mr Robertson appeared for the First Respondent, the Minister for Immigration (Minister).  There were consent orders made to get the matter ready for hearing and the final hearing was set down for today, 21 June 2018 at 10:15am.  What transpired after that was that by an email dated 7 June 2018 the Applicant wrote to Mr Robertson, stating that he was scheduled to appear at the Federal Circuit Court in Canberra for a mediation on 21 June 2018 and, in effect, that he wanted an adjournment and to change the date of the final hearing of this matter.  The Applicant did not send a copy of that email to Mr Robertson or to my Chambers, although it seems to have gone to the Federal Court Registry.

5. Mr Robertson replied to the Applicant at 9:00am on 8 June 2018 stating that he had received instructions from the Minister not to consent to any adjournment and pointed out that the final hearing date in this Court, was set down on 9 February 2018 for 12 June 2018, whereas the mediation date was only set down subsequently on 16 April 2018 in Canberra to coincide with the hearing date today in Sydney, and that the mediation could presumably be rescheduled.

6. By email dated 8 June 2018 sent at 1:40pm the Applicant was advised by  my Chambers that the Court would not change the final hearing listed for today in circumstances where he, the Applicant, had attended Court on 9 February 2018 and the matter had been set down for today and the matter in which he was involved in Canberra was set down for mediation only two months ago before a Registrar of this Court in Canberra and that this was not a good reason to adjourn today’s hearing and that he should give priority to this case, namely his case against the Minister.

7. There was no further correspondence.  The matter has twice been called outside Court today.  The Applicant does not appear and it is now 10 minutes to 11:00am.  In those circumstances there does not seem to be any good reason why the Applicant is not here today.  He has deliberately chosen to ignore the Minister’s refusal to agree to an adjournment and the Court’s refusal to agree to an adjournment to apparently give priority to the mediation in some other matter in which he is involved in Canberra before a Registrar of the Court.  In those circumstances, the application by the Minister for dismissal is eminently reasonable and that order ought to be made. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 31 July 2018