Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 395
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 395
File number: MLG 2305 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 2 May 2023 Catchwords: PRACTICE AND PROCEDURE – application for adjournment of hearing of application in a proceeding – where insufficient evidence provided to support claims – where no entitlement to legal representation – application for adjournment 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: 17 Date of hearing: 2 May 2023 Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Oppel Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2305 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKESH KALYAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
2 May 2023
THE COURT ORDERS THAT:
1.The oral application for an adjournment of the application in a proceeding listed on 7 June 2023 (reinstatement application) is dismissed.
2.If the reinstatement application is granted, the final hearing of the judicial review application is to be held immediately following the hearing of the reinstatement application listed at 12:00pm AEST / 10:00am AWST on 7 June 2023.
3.The applicant is to file and serve the following documents by 4:30pm on 17 May 2023:
(a)an affidavit annexing any draft amended judicial review application with proper particulars of the grounds of application;
(b)any additional evidence upon which he intends to rely in support of both the reinstatement application and the substantive judicial review application, if the reinstatement application is granted; and
(c)written submissions in support of the reinstatement application and, in the event the reinstatement application is granted, the substantive judicial review application.
4.The first respondent is to file and serve any supplementary written submissions by 4:30pm on 31 May 2023.
5.The parties have liberty to apply to vary these orders.
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).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)JUDGE LADHAMS:
INTRODUCTION
On 8 March 2023 I made an order dismissing the applicant’s judicial review application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) because the applicant failed to appear either personally or through his lawyer at a directions hearing that had been listed to address the applicant’s non-compliance with Court orders.
On 3 April 2023 the applicant filed an application in a proceeding seeking reinstatement of the judicial review application. The application in a proceeding has been listed for hearing on 7 June 2023, which is a date that is over two months after it was filed. The parties were invited to confer to see whether they could agree to consent orders for the filing of documents relevant to the application in a proceeding. Consent orders have not been agreed, and the matter now comes before me for directions.
The applicant has also made an oral application and filed an affidavit to seek an adjournment of the hearing on 7 June 2023. These are my reasons for refusing to grant the applicant an adjournment of the hearing on 7 June 2023.
BACKGROUND
The judicial review application before the Court has been on foot for some time. It was originally filed on 6 August 2018, which is now more than four and a half years ago. The applicant was self-represented at the time that the judicial review application was filed, but he filed a notice of address for service on 5 February 2020 indicating that he was represented by a lawyer. From the Court record, it appears that the applicant was represented by a lawyer, for the whole of the period between 5 February 2020 and the dismissal of the application for non-appearance on 8 March 2023.
The judicial review application was listed for hearing and rescheduled on a number of occasions. It was originally listed for hearing on 25 July 2022 and then relisted to 21 February 2023 and then relisted again due to judicial unavailability to 28 March 2023.
The applicant failed to comply with orders that required him to file any amended application and submissions 28 days prior to the hearing. It was that non-compliance that led to the directions hearing being listed on 8 March 2023 where the judicial review application was dismissed. The applicant now represents himself in relation to the reinstatement application.
In his affidavit that he made on 27 April 2023, the applicant gave the following reasons for seeking an adjournment of the hearing on 7 June 2023:
1.Humbly requested that hearing dated 07th June 2023 may kindly be adjourned, I am confronting very serious financial constraints and facing very mental depression as well.
2. Don’t have a lawyer.
No detail was provided in the affidavit as to the steps the applicant has taken to appoint a new lawyer, and the applicant did not at the directions hearing before me indicate any meaningful steps that he has taken to try and appoint a new lawyer. The affidavit does not provide any detail or medical evidence in relation to the nature and severity of any mental health condition that the applicant has been diagnosed with or its impact on his ability to prepare for and participate in the hearing of his reinstatement application.
CONSIDERATION
The reasons that I am not satisfied that it is appropriate to adjourn the hearing of the reinstatement application are as follows.
First, there is no reliable evidence before me from which I can conclude that the applicant has any mental health condition that would render him unable to prepare for the hearing on 7 June 2023 or to participate in that hearing in a meaningful way. The applicant’s bare assertion that he is facing mental depression is not a proper basis to adjourn the hearing.
Second, I am not prepared to adjourn the hearing on the basis that the applicant does not have a lawyer. There is no entitlement to a lawyer in migration proceedings. It is also unclear and by no means certain whether the applicant would be able to obtain a lawyer if given the opportunity. The applicant’s submission to this Court is that he does not have significant financial resources that would enable him to obtain a lawyer.
Third, given the significant time that the matter was on foot before it was dismissed and the lack of substantive steps taken during that time, it is appropriate that the matter be finally resolved as soon as practicable. It is unclear whether adjourning the hearing would lead to the applicant taking any substantive steps to prepare for the hearing further to those that he could take in any event in the time available between now and the hearing.
On that note, I note that there is still over one month between today and when the reinstatement application is listed for hearing, and on the orders proposed by the Minister, the applicant would have over two weeks from today to prepare any documents relevant to that hearing. I am satisfied that the applicant has sufficient time to prepare for the hearing of his reinstatement application on 7 June 2023.
The application for an adjournment of that hearing is therefore dismissed.
I also propose to make directions to facilitate the hearing of the reinstatement application, and these directions are largely based on the Minister’s minute of proposed orders.
First, the Minister seeks an order that if the application for reinstatement is granted, the final hearing be held immediately following the hearing of the reinstatement application. I agree that is an appropriate order to make, particularly given the lengthy history of this matter and that the applicant will need to address, at least at a reasonably impressionistic level, the merits of the proposed substantive application for the purposes of his reinstatement application.
The Minister also seeks order for the applicant to file documents relevant to the reinstatement application and, if that application is successful, the substantive application by 17 May 2023. These orders would give the applicant an opportunity to indicate any proposed amendments to the grounds of application and provide proper particulars, and to file further evidence and submissions in relation to both the reinstatement application and, if that is successful, the substantive application. The orders also require the Minister to file any further submissions by 31 May 2023. I am satisfied that these proposed orders are appropriate.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 May 2023
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