Jahan v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 267

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jahan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 267

File number(s):	SYG 2328 of 2021
Judgment of:	JUDGE LAING
Date of judgment:	5 April 2023
Catchwords:	MIGRATION – dismissal for non-appearance – whether adequate reasons given for non-appearance – adequacy of medical evidence – whether proceedings should be adjourned – application dismissed
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of hearing:	5 April 2023
Solicitor for the Applicants:	No appearance by the applicants
Solicitor for the First Respondent:	Ms A Meaney (Mills Oakley) appeared by video
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 2328 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MOHAMMAD SAROAR JAHAN

First Applicant

AFROZA KHANAM SHIMA

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	5 APRIL 2023

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

2.The applicants pay the first respondent’s costs, fixed in the amount of $5,700.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE LAING

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas.

2. The matter was listed before me for hearing today. Notification of the hearing was sent via email to the parties on 21 February 2023.

3. The Minister also relies upon an affidavit of service sworn by Allana Michelle Meaney on 30 March 2023, confirming that various documents were served upon the applicants. Included in that correspondence is an email sent on behalf of the Minister on 21 February 2023, through which the applicants were reminded of the details of the listing for hearing and advised that in the event of non-appearance the Minister may seek orders that the application be dismissed with costs.

4. On Friday, 31 March 2023, the week before the hearing, the Applicant emailed my Associate seeking adjournment of the hearing. This was on the basis that his wife, the second applicant, had given birth on 16 January 2023 which had caused some medical issues. The Applicant stated that he was stressed by having to deal with issues such as looking after his wife and baby which meant that he was unable to pay attention to the scheduled hearing. He asked that the hearing date be adjourned to allow him “some time to recover from all of these situations”. Annexed to the email was a discharge report from the hospital in January indicating that although the birth was attended by some complications, the second applicant was considered “stable and safe for discharge on 18/01/2023” with a plan indicating that some ongoing monitoring was recommended.

5. The Applicant also provided by email a medical certificate indicating that the second applicant was “suffering from a medical illness with post partum illness”, that it may be “difficult for her to seat long time”, and that she was experiencing some stress, anxiety and difficulty concentrating.

6. The adjournment application was opposed by the Minister. In an email sent to my Associate, copied to the applicants, this was stated to be on the following basis:

   (a) The medical evidence relating to the second applicant, who was a dependant applicant on the applicant’s Student visa application, does not certify that she is unfit or incapacitated such that she cannot to attend a hearing and the listing notice also provides the applicants with an option to attend the hearing Microsoft Teams, which they could attend from the comfort of their own home.

   (b)There is no medical evidence to indicate that the applicant is unable to attend the hearing or appear on behalf of the second applicant at the hearing.

   (c)These proceedings have been on foot since 13 December 2021 and the applicants have not filed no further documents since lodging their judicial review application.

   (d)The applicants have not provided any indication of the requested duration of the adjournment and it is not in the interests of justice for these proceedings to be adjourned for an indeterminate period.

7. My Associate advised the parties that, as the adjournment was opposed, the matter would remain listed for hearing at which time the parties would be afforded the opportunity to make further submissions. Had the applicants attended, this could have included any further submissions in support of the adjournment application.

8. The day before the hearing, the Applicant sought to file a Notice of Discontinuance. This was not accepted for filing due to the proximity to hearing and certain deficiencies in the manner in which the form had been completed. In these circumstances, the applicants were notified that as the Notice of Discontinuance had not been accepted for filing attendance at the hearing would still be required.

9. This morning, the applicant emailed my Associate, stating (reproduced verbatim):

   Good morning Sir/ Madam

   Due my physical illness I am unable to attend the hearing today. I am not feeling well. As I need to look after my family and wife. I am in very stressed & physically week. I have seen the doctor yesterday. Please consider my situation for your kind. The medical certificate is attached below your consideration. Thank you.

10. The medical certificate stated:

    Mr Mohammad Jahan… is suffering from a medical illness and will be unfit for his/her usual work/study from 5/4/2023 to 5/4/2023 inclusive.

11. I agree with the Minister’s representative that this correspondence, even taken with the earlier material that was provided, does not establish that the applicants were incapable of attending the hearing today, whether by phone or otherwise, and potentially with some additional level of accommodation. Whilst I do not underestimate the difficulties that may attend the birth and care of an infant, I have not been provided with sufficient evidence or information to be satisfied that those difficulties precluded the attendance of the applicants at the hearing today.

12. I also accept the Minister’s submission that the applicants’ previous prosecution of these proceedings is potentially of some relevance. This is in circumstances where the proceedings were commenced on 13 December 2021 by an application supported by an affidavit annexing the Tribunal’s decision. Despite earlier opportunities being given through procedural orders, the applicants have not filed any further documents in support of their application since 13 December 2021.

13. Significantly, to the extent that adjournment of these proceedings is still sought, it is sought on an indefinite basis. I am not persuaded, on the information before me, that such an adjournment would be an appropriate exercise of my discretion.    

14. Considering this, and noting that neither applicant has appeared at the scheduled hearing this morning, I accept the Minister’s submission that dismissal pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) would be an appropriate course.

15. In such event, the Minister sought that the applicants pay costs fixed in the amount of $5,700.  I accept that the amount sought is reasonable, noting that it is an amount that is below the Court’s scale.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 5 April 2023