Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 639

FEDERAL CIRCUIT COURT OF AUSTRALIA

Javed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 639

File number(s):

SYG 1683 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

26 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN), (Subclass 187), (Regional Sponsored Migration Scheme) visa – the application is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

Legislation:

Migration Act 1958 (Cth), ss 65

Federal Circuit Court Rules2001 (Cth), rr 12.02, 13.03C (1)(c)

Number of paragraphs:

27

Date of last submission/s:

26 February 2021

Date of hearing:

26 February 2021

Place:

Parramatta

Solicitor for the Applicants:

There was no appearance on behalf of the Applicants’.

Solicitor for the Respondents:

Mr Jeyyakkumar appeared on behalf of the First Respondent.

ORDERS

SYG 1683 of 2019

BETWEEN:

GUL ZAIB JAVED

First Applicant

AMNA ZAHID

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS THAT:

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

2.The applicants’ are to pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT
(As revised from transcript)

JUDGE HUMPHREYS

1. This matter has been listed before the Court, on 26 February 2021 and it has an unfortunate chequered history. It is appropriate that the Court set out a detailed history of the matter, before moving on to deal with the issue of whether or not the Court should dismiss the matter pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), on the basis that the applicants’ have failed to appear.

2. On 14 February 2018, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN), (Subclass 187), (Regional Sponsored Migration Scheme) visa, under s 65 of the Migration Act 1958 (Cth) (“the Act”). The first applicant was the substantive applicant, with the secondary applicant being his wife. The first applicant sought work in the nominated position of accountant – general. 

3. The Department of Home Affairs (“the Department”) was unable to establish contact with the nominated sponsor employer, Select One Pty Ltd.  The delegate of the Minister for Home Affairs (“the delegate”) noted that the first applicant was not able to provide evidence to indicate that the position was available to him.  Accordingly, the delegate refused the visa application.  The applicants’ then sought merits review in the Administrative Appeals Tribunal.  The applicants’ attended the hearing before the Tribunal on 3 June 2019.  The first applicant told the Tribunal that he had engaged the services of a migration agent to assist in obtaining   a (Permanent) (Class RN), (Subclass 187), (Regional Sponsored Migration Scheme) visa. 

4. The first applicant said that he had unsuccessfully tried to contact the nominated employer but found that the number was disconnected.  The first applicant was subsequently told by the Department that there was no nomination.  The first applicant expressed dismay as to why the migration agent did what is suggested.  The second applicant told the Tribunal that she cannot go back to Pakistan as her family do not approve of her marriage and that she currently holds a Student visa. 

5. In a decision dated 11 June 2019, the Tribunal affirmed the delegate’s decision to refuse the applicants’ their visas.  The applicant then applied for judicial review of the Tribunal’s decision.  The matter initially came before the Court early last year.  On 15 June 2020, the Court adjourned the matter in chambers on the basis that a Medical Report had been provided that indicated that the applicant was unfit to attend Court. 

6. The matter then came back before the Court on 14 December 2020.  Again, a Medical Certificate was produced from a Medical Practitioner that indicated that the first applicant was unfit to attend Court due to a psychiatric illness.  On that day, the Court ordered pursuant to

   
   

   r 12.02 of the Rules that the first applicant be referred for legal assistance, and that the legal practitioner attend Court on the next occasion for the purpose of putting such submissions as could be put on behalf of the first applicant.

7. It was further ordered that if a further adjournment application is sought on behalf of the first applicant, that the Court will require affidavit evidence to be filed by the first applicant’s treating psychiatrist or general practitioner outlining the first applicant’s precise diagnosis, current treatment, and the reasons why the first applicant is unable to attend either in person or by telephone, and the medical practitioner is to be available for cross-examination.  If the legal representative, if one was appointed, was to put on written submissions, they were to be filed and served 14 days prior to the hearing date.  And that the matter was adjourned for hearing, today (26 February 2021).

8. A certificate was issued in relation to the appointment of a legal practitioner, and the Court was advised that the first applicant was contacted by a legal practitioner and that the legal practitioner was unable to assist him.

9. The situation is that the legal practitioner was unable to assist the applicants’ and appear in Court for the hearing, today (26 February 2021).  It was anticipated that a further adjournment would be sought in relation to the matter and it was on that basis, that the legal practitioner did not attend.

10. Perhaps unsurprisingly, further correspondence was received in the lead up to today’s hearing from the first applicant.  Firstly, the Court was provided with a copy of a report from the NAS Advanced Medical Centre, which is under the hand of a Dr Muhammad Virk, which basically stated that the first applicant had attended for a review of his depression.  There was also material from Dr Virk, which interestingly is dated 23 February 2021, and is a medical certificate, but in brackets below, it says, “Not for Court purposes.”  That medical certificate said:

    This is to certify that the applicant has attended the treatment for anxiety, depression and having counselling and taking medication.

11. The first applicant sought to have the matter adjourned, and again, there was a flurry of correspondence.  The Court might add that the procedure by which correspondence appears to be increasingly sent directly to chambers, rather than applications being made to the Court, is a matter of concern, however, the first applicant is unrepresented, and it is perhaps that he thinks it is appropriate. 

12. On Thursday, 25 February 2021 at 1.53 pm, chambers received a further email from the first applicant.  The first applicant says that one of his GPs is not available anymore in Sydney as the doctor has left New South Wales. The first applicant says:

    I received a call from a lawyer in which he asked me to apply for the protection visa or withdraw my case, and all I have to do is pay money, for which I have no money to pay.

13. The Court is unaware of who the first applicant is referring to in that statement.  It is certainly not the lawyer that contacted him on behalf of the Court.

    I have received calls from him on multiple days and it is giving me high anxiety.  I’m doing a little bit better.  Credit with my employer who has offered me work assistance.

14. The first applicant asks again, not to have to come to Court.

15. The important thing to take away from that is the fact that it is clear that the first applicant knew that this matter was listed here today.  Chambers, at the Courts direction, replied to the first applicant, to say in essence:

    Please be advised, on the material before his Honour Judge Humphreys, Judge Humphreys is not minded to grant a further adjournment in the above matter in chambers.  Chambers notes that the medical certificate provided by Dr Virk indicates it is not for Court purposes. 

16. Accordingly, the applicants’ were to appear.

17. The Court also received an email from the first respondent’s legal representative, indicating that they did not consent to the adjournment, and also put on record that if the applicants’ did not appear, that the first respondent would seek to have the matter dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Rules. 

18. On Thursday, 25 February at 6.43 pm, a further email was received from the first applicant, in which it states:

    I have attached my medical certificate, and I won’t be able to attend Court tomorrow.  I will be appearing in Court for next hearing if you give me permission.  Please consider my request and give me some time for the last time.

19. The Medical Certificate to which the first applicant referred to, was from the Firm of Sydney Doctors.  It was under the hand of Dr Shuo Zhao.  It is dated 25 February 2021.  This letter says:

    In relation to the applicant, this letter is to certify I have assessed Mr Javed who reports significant symptoms of anxiety relating to his upcoming Court hearing scheduled for 26 February 2021.  This is a source of great distress to him, causing significant disruption to mood and to sleep.  He reports being unable to attend the Court hearing via phone or in person.  I would appreciate your consideration with regards to rescheduling his Court hearing to a time where there is more stability to his mental health.

20. That Medical Certificate does not indicate that the applicant is unfit to attend the Court hearing listed today (26 February 2021). All that the Medical Certificate does, is merely affirm what the Court is already aware of, and that is, that the first applicant is suffering from anxiety and depression.  It cannot be said that the first applicant was unaware of what was required by the Court in relation to the Medical Certificate.  On previous occasions the first applicant had provided Medical Certificates that clearly indicated that he was unfit to attend Court.  The current Medical Certificates simply do not do that, nor has the Medical Practitioner provided an Affidavit, as was set out in the orders that were published in December 2020.

21. In terms of whether or not the Court should grant the adjournment, first of all, the Court is satisfied that the applicants’ are well aware of the time, date and place of the hearing and have determined not to attend.  In terms of the first applicant’s capacity to attend, the Court is satisfied based on the medical material, that it is insufficient for the Court to grant a fourth adjournment in relation to the matter, bearing in mind that the Court has adjourned this matter from July last year until today, on the basis of the first applicant’s medical conditions.

22. In terms of considering whether or not the Court should grant an application, the Court has perused the substantive application.  A single ground of appeal is all that was filed on 4 July 2019.  It is as follows:

    Ground One

    The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

23. No written submissions have been put in in relation to that ground.  This is a matter where on its face, and whilst the Court makes no concluded view, there would have been considerable difficulties of the applicants’ in succeeding before the Court, in that the first applicant had applied for a Regional Sponsored Employer’s visa.  The first applicant had no Regional Sponsor Employer. 

24. In those circumstances, the first applicant would have faced major difficulties had the matter come on for hearing and the Court was required to determine it on its merits, because an essential requirement for the grant of that visa, clearly had not been established. From that point of view, whilst the Court makes no substantive ruling on the matter, it is very difficult to see how the applicants’ could have possibly succeeded. In so doing, the Court is not dealing with the matter under the provision under r 13.03C of the Rules, of dealing with the matter in the applicants’ absence. The Court is simply dealing with the matter on the application before the Court, which is that the Court dismisses the matter for the applicants’ non-attendance. The Court notes the particular issue in terms of the strength of the applicants’ matter before it.

25. The Court is satisfied that the applicants’ were aware of the matter.  The Court is not satisfied as to the excuse that has been given, that the first applicant is unable to attend Court.  The first applicant was well aware of the material that would be required by the Court if it was to grant him a further adjournment.  The Court has gone out of its way to provide the applicants’ with every opportunity to have his matter dealt with by the Court.  There appears to be – and whilst the Court cannot know what is in the first applicant’s mind – an unwillingness to simply accept the reality that he has to come to Court and have his matter dealt with, and that he is seeking to simply put off the day for as long as he possibly can.

    CONCLUSION

26. In the circumstances, the Court is satisfied that it is appropriate to deal with the matter on the basis of the application made by the legal representative of the first respondent, and the Court dismiss this matter pursuant to rule 13.03C(1)(c) of the Rules.

27. The Court also orders that the applicants’ are to jointly and severally pay the first respondent’s costs fixed in the amount of $7467.  In so doing, the Court also notes that the first respondent has been very generous and not sought to seek costs above scale, bearing in mind the matter has been listed on a number of occasions before the Court, although the first respondent’s solicitor has not been required to attend Court on previous occasions.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       31 March 2021