Kazmi v Minister for Home Affairs

[2020] FCCA 730

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAZMI v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 730

Catchwords:
MIGRATION – Application for judicial review – applicant sought adjournment by way of email – adjournment denied – applicant failed to attend court – application dismissed pursuant to rule.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)
Migration Act 1958 (Cth)

Applicant: SYED SAADAT MUSTAFA KAZMI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1921 of 2018

Judgment of: Judge Riethmuller

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Melbourne

Delivered on: 5 March 2020

REPRESENTATION

The applicant did not appear.

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1921 of 2018

SYED SAADAT MUSTAFA KAZMI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. The applicant in this matter has failed to attend court. He has sent through, by way of email, a report that appears to be from a psychologist, a Mr Edwin Kleynhans, who describes himself as a psychologist with a Master of Arts in Clinical Development Psychology, as a member of the Australian Psychological Society and gives a registration number. The original report has not been provided.

2. The report seems to indicate that the applicant is suffering from depression and anxiety and has done so for some time. Indeed, Mr Kleynhans says the anxiety originated during the applicant’s formative years and, similarly, that the depression had commenced in his adolescence. Mr Kleynhans says (at [52] on page 12) that he had considered a diagnosis of a major depressive disorder and social anxiety disorder, but that the applicant “does not meet all the diagnostic criteria for these disorders within DSM-V”.

3. Mr Kleynhans expresses the opinion that on his clinical assessment of the mental state of the applicant, he was of the opinion that the applicant “would not make sense at the hearing on 5/3/2020 [today] because of chronic stress, [for which the applicant] needs treatment”: see [56] on page 11. Mr Kleynhans says that he had suggested to the applicant to engage in psychological treatment and that he would need counselling for at least eight months, one session every three weeks, looking at mindfulness exercise, study methods, time management, overcoming perfectionism, managing depressed mood better, light physical exercise and improving his sleep hygiene, as he suffers from insomnia: see [61] on page 11. It has also been recommended that the applicant talk to his family doctor about drug therapy.

4. The medical report does not set out that the applicant is incapable of managing his affairs, nor incapable of managing the proceedings. The applicant was not granted an adjournment on the papers nor notified that an adjournment had been granted, but was notified that the manner remained listed before me today. The applicant has not attended today to appear before the Court, which has denied the Court any opportunity to see him in person or see the extent of his condition and how it might impact upon him.

5. The application that is before the Court has been pending since 2018.  The application does not involve the need to give any evidence as a witness, but it is an application based upon questions of law, determining whether or not there was a judicially reviewable error.  The substance of the grounds for judicial review appear to have, as their theme, a merits review being sought, there being some 18 grounds in all.

6. The length and detail of the grounds tells against the applicant being incapable of making submissions or dealing with the issues. I also note that the applicant has not lodged any outline, despite directions to do so.

7. In all of the circumstances, I am not persuaded that it is appropriate to grant an adjournment in this case, on the material before me.  I therefore refuse what I take to be an adjournment application, as a result of the applicant forwarding the psychological report by email to my chambers. 

8. The applicant has been called, he has failed to appear. I therefore dismiss the application under rule.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  31 March 2020