Kaur v Minister for Immigration and Border Protection
[2016] FCA 1087
•29 August 2016
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2016] FCA 1087
Appeal from: Kaur v Minister for Immigration & Anor [2014] FCCA 2112 File number(s): SAD 93 of 2016 Judge(s): CHARLESWORTH J Date of judgment: 29 August 2016 Legislation: Federal Court Rules 2011 (Cth), r 4.03 Date of hearing: 29 August 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondents: Ms Natalia Milutinovic Solicitor for the Respondents: Sparke Helmore ORDERS
SAD 93 of 2016 BETWEEN: KAMALDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
29 AUGUST 2016
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment of the hearing today is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The applicant has applied for an adjournment of a hearing of her application listed today. I have refused the grant of that adjournment. These are my reasons for doing so.
The application was originally set down for hearing on 16 August 2016. On 15 August 2016, the applicant sent an affidavit by way of a facsimile to the South Australia District Registry. She deposed that she was unable to attend the hearing on medical grounds. She asserted that she had been diagnosed with a respiratory infection that was causing her to cough for long periods and to suffer breathing difficulties. The affidavit was accompanied by a medical certificate, signed by one Dr John Bongiorno, to the effect that she was unfit for work for five days, by reason of her suffering a respiratory infection.
Upon receiving that affidavit, the court indicated to the parties that it would not inconvenience the Court if the application were to be relisted to today’s date, without hearing or determining the merits of whether or not the applicant indeed had a medical ground for an adjournment. The parties were advised that if the respondent opposed the matter being adjourned, then it would be necessary to list the application for argument on its merits. The respondent did not oppose the matter being relisted to today’s date, and so it was ultimately unnecessary to determine whether the applicant was indeed unfit to appear at the hearing scheduled to commence on 16 August 2016, as she had alleged in her affidavit.
On Friday 26 August 2016 the applicant sent an email to my associate, copied to the respondent’s solicitor, in which she said:
I also mentioned in my affidavit before, which I sent on 15 August 2016, to transfer my case to Melbourne. I’m also requesting today to transfer my case to Melbourne registry, because I am living in Melbourne, and also my lawyer is not in Australia, and he is in Fiji.
No legal representative acting or purporting to act for the applicant has filed any notice of appearance in this proceeding in accordance with r 4.03 of the Federal Court Rules 2011 (Cth). The applicant was given leave to appear by video link from Melbourne. An interpreter has been arranged for her to facilitate her attendance. The South Australia District Registry today received a facsimile. It bore no cover sheet. It comprises a short letter purporting to emanate from one Dr Brian Gamboni of Richmond in Victoria. It annexes a copy of the affidavit sworn by the applicant on 15 August 2016. The letter states:
To whom it may concern, Kameldeep Kaur (1/2/89) attended this surgery today. She is suffering from a respiratory infection and will be unfit to attend court today. Yours faithfully –
There is then borne the signature of the medical practitioner.
I am not persuaded, by reference to that letter, that the applicant is unfit to attend on this application in the relevant sense. The letter is insufficient of itself to satisfy me of critical facts relevant to the exercise of my discretion as to whether or not to grant an adjournment. The medical practitioner does not say why the respiratory infection renders the applicant unfit to attend court today. He does not state what assumptions he has made about what the conduct of this application involves and the demands it might make on the applicant. Nor does the doctor state the assumptions on which he has acted to form his opinion that the applicant is unfit to attend court. In particular, I cannot be satisfied that the practitioner has not simply acted on the applicant’s self-reported symptoms, without testing for himself whether her self-reporting is reliable or not.
Further, I am not satisfied that the applicant seeks to delay the hearing of her application for reasons associated only with her respiratory illness. I receive her application on the basis that it is also made on the grounds that she seeks time to obtain legal advice and representation from a solicitor. This is confirmed in an email, a copy of which she has provided to the Court, by way of a further facsimile of today’s date. It states:
Dear Sir/Madam,
Please be informed that I am very distressed since I received an email informing me that I need to go through the hearing, even though my legal representative is away in Fiji until tomorrow.
I sent the affidavit and all the required documents by email and post until now. I haven’t hear anything regarding the filing of the mention documents. I faxed them again today.
Since Friday’s email informing me I still need to attend the hearing, I have experienced very intense anxiety and also a racing heartbeat, shortness of breath, and dizziness. I went to see a doctor, and after taking medication through weekend it seems the natural medication so well. This morning I went to see a GP.
I feel overwhelmed with fear, as I don’t understand the legal procedures, and this is why I paid a lawyer to help me.
I believe it is unfair that I don’t have a chance to represent my case in a fair way. I should be given an opportunity to be with a lawyer who knows my case, and I’m trying to do things in the right way by requesting the court formally to move the case to Melbourne and give me a time extension so the lawyer can support me at the hearing.
Please consider my plea and let the course of justice take its place.
(original spelling and grammar retained)
I infer from that facsimile that the applicant’s primary reasons for seeking the adjournment are a sense of anxiety and unfamiliarity with the Court’s procedures, together with her desire to have the proceeding transferred to the Victoria District Registry, for reasons that include the convenience of a lawyer who is presently situated in Fiji. In refusing to grant the adjournment I have taken into account the applicant’s status as a self-represented litigant. Although she claims to be presently making arrangements for legal representation, it is unclear to me why the legal practitioners who have been engaged by her are currently situated in Fiji. In circumstances where there has been no notice of acting filed by the solicitors, nor any appearance made or correspondence received from the solicitors, I am not satisfied that any solicitors, in any event, have been formally engaged.
I have also taken into account the fact that this application was filed many months ago. I am not satisfied that the applicant has done all that she could have done to engage legal practitioners at an earlier time, nor am I satisfied that if the adjournment were granted that the applicant’s anxiety in relation to any hearing at a later date would not precipitate a further adjournment application on the same or similar grounds.
For the above reasons, the application for an adjournment is dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 29 August 2016
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