Kaur and Anor v Minister for Immigration and Anor (No.1)

[2014] FCCA 2704

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.1) [2014] FCCA 2704

Catchwords:
PRACTICE & PROCEDURE – Application for an adjournment of the final hearing – application for an adjournment refused.

First Applicant: MANINDER KAUR

Second Applicant: GURSIMRAN SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 956 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 November 2014

Delivered at: Sydney

Delivered on: 12 November 2014

REPRESENTATION

First applicant appeared by telephone

Solicitors for the Respondents: Ms S. Burnett of Clayton Utz

ORDERS

1. The application for an adjournment is refused.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 956 of 2014

MANINDER KAUR

First Applicant

GURSIMRAN SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. There is listed today for final hearing an application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 visa (885 visa).  The Tribunal affirmed the delegate’s decision on the ground that the Tribunal was not satisfied the applicant met public interest criterion 4020 (PIC 4020).  That relevantly provides that there is no evidence that the applicant has given to the Minister and others, a bogus document. 

2. Before the Tribunal there were two documents which the Tribunal identified as bogus documents.  One was a test report for an International English Language Testing System, conducted on 20 November 2010, which the first applicant (applicant) submitted to the Minister, together with her application for the 885 visa.  The other document was a letter issued by the British Council. 

3. The matter came before the Court on 20 May 2014 for a first court date.  On that day directions were made and a hearing date was set, that hearing date being, of course, today.  On 22 October 2014 the applicant faxed to the Court Registry a letter, which was as follows:

   I am schedule to appear for hearing for the above matter on 12th November 2014 unfortunately due to my health condition, i am not prepared to defend myself on schedule date, because i have no one to represent my self in court.  I have been sick for quite few months stress has also contribute in my situation.  I am attaching medical certificate.  I am not able to come over and handle this situation wisely that i want to be.  I am dedicated to insuring i am in compliance with the court orders concerning this matter. 

   I am requesting to reschedule the hearing date for sometime to allow me time to get better represent and defend myself and my little infant whose future depend on this. 

   I hope the court will consider that i am not attempting to avoid the responsibilities placed upon me by court and allow me the opportunity to obtain a new hearing date. 

   Thank you for your attention in the matter.

4. To that fax were attached two documents.  One is a document titled Medical Certificate, issued by the Medical & Fitness Centre at 142 Bringelly Road, Kingswood.  It is dated 22 October and it states:

   This is to certify that Ms Maninder Kaur who attended the centre on 22.10.14 complaining/suffering from anxiety, stress, depression, wrist pain, back pain, and unable to work for few days from 23.10.14 to 30.10.14 inclusive.

5. The second document that was attached is a report issued by Dr Tariq Khalil, reporting on an ultrasound on a left wrist.  I do not need to quote the contents of that document. 

6. At my direction the Registry of the Court responded to the applicant’s fax of 22 October 2014 with a letter, which was sent on 28 October 2014.  That letter was to the following effect:

   I refer to the applicant’s correspondence sent by fax and received by the Court Registry on 23 October 2014 (please see attached). 

   Any application for an adjournment should be made at the hearing, which is listed at 2.15 pm on 12 November 2014 in Courtroom 8.1, Level 8, 80 William Street, Sydney. 

   If the applicant cannot attend in person, the applicant may appear by telephone.  If the applicant wishes to appear by telephone, the applicant is to provide a telephone number for the Court to dial at 2.15 pm on 12 November 2014. 

   If the applicant intends to rely on any medical report from a doctor, the doctor providing that report must be available to give evidence at the hearing by appearing either in Court or by telephone. 

7. On 11 November 2014, that is to say one day before the appointed hearing date, the applicant provided a further fax to the Court.  It stated as follows:

   I am schedule to appear for hearing for the above matter on 12 November 2014 unfortunately, due to my health condition, i am not prepared to defend myself on schedule date.  I was asked to provide my phone no., and doctor phone no. . . .

8. The fax goes on and provides the applicant’s mobile number and the telephone number of the medical centre.  To that fax there was attached a medical certificate, issued by a Dr Valentin Tioukavkin, that provided as follows:

   This is to certify that Mrs Maninder Kaur has a medical condition (anxiety/depression, back and wrist pain) and will be unfit for work from 12 November 2014 to 12 November 2014 inclusive. 

9. I did not consider it appropriate that the Court take the trouble to telephone the doctor who provided that medical certificate in the absence of the applicant seeking that I do so. 

10. The applicant appeared by telephone and confirmed that she wished to apply for an adjournment.  When I asked the applicant on what grounds she sought the adjournment, she said she needed one or two months’ time to prepare for the case.  She indicated that she had an inability to speak on the matters that she wished to speak in support of her claim.  When I asked her how long this condition would last, she said she was not able to tell me.  Beyond that the applicant also mentioned that she had anxiety and stress and that she had a tendency to cry when she wished to speak about her case.

11. The application for an adjournment was opposed by the Minister.  It was submitted by the Minister that the applicant has had since 20 May 2014 to prepare for this case.  It was submitted that the medical certificate was of little probative value and omitted details such as the date of the examination.  The Minister’s lawyer also referred to what was submitted to be an oddity, that the certificate only referred to unfitness for one day and did not, on its face, support what was said by the applicant, saying that she needed one or two months.

12. Having had the benefit of listening to the applicant and having a conversation with the applicant, I was satisfied that there was no apparent impediment in the applicant understanding what I said.  And the applicant had no apparent difficulty in conveying to me what she wanted to say.  So, even if I were to give the medical certificate some weight, whatever anxiety and depression or back and wrist pain the medical certificate has certified the applicant suffers from is not such as satisfies me that the applicant is unable to present her case today.  For those reasons I refuse to grant the adjournment she seeks.  I am firmly of the opinion that the applicant is in a position to present whatever case she has before the Court. 

13. I accept that, being an unrepresented litigant, the applicant faces great difficulties in presenting a case in which she has to establish jurisdictional error on the part of the Tribunal.  I can also understand that, because of that difficulty and the consequences of her not succeeding in her application, the applicant would feel anxiety and a sense of depression.  However, these are afflictions which represented litigants, let alone unrepresented litigants, experience whenever they come near a courtroom.  And, in my opinion, whatever anxiety and depression this has induced in the applicant is not such as would lead me to exercise my discretion to grant an adjournment.

14. Therefore, the order I make is that the application for an adjournment is refused.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 20 November 2014