MENON v Minister for Immigration

[2018] FCCA 883

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENON v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 883

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to respondent if adjournment granted - adjournment refused.

Applicant: SANDEEP MENON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 410 of 2017

Judgment of: Judge Manousaridis

Hearing date: 5 April 2018

Date of Last Submission: 5 April 2018

Delivered at: Sydney

Delivered on: 5 April 2018

REPRESENTATION

Applicant in person

Solicitors for the Respondents: Ms C Saunders of DLA Piper Australia

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 410 of 2017

SANDEEP MENON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court today is the hearing of an applicant for judicial review of a decision made by the Administrative Appeals Tribunal on 18 January 2017 affirming a decision of a delegate of the Minister for Immigration and Border Protection (Minister) refusing to grant the applicant a Partner (Temporary) (class UK) visa (Partner visa). 

2. The application for judicial review was filed on 13 February 2017.  The matter came before a Registrar on a first court date on 9 March 2017.  On that day the Registrar made directions, and also made an order that the hearing of the application for judicial review be set down for hearing before me on 5 April 2018 at 10.15 am.

3. On 3 April 2018 my chambers received an email from the solicitor for the Minister which attached or included with it an email sent by the applicant to the Minister’s lawyers on 29 March 2018. In that email, the applicant stated:

   Hello, sir, this is Sandeep Menon.  I just received email regarding hearing in Court on 5 April.  I just wanted to request for extra time to complete my paperwork for this case as I’m not fully prepared with few documents.  I have been going through some hard time in my life so could not manage to arrange all the documents/proofs and my wife is not available on hearing date as she has some test for her studies.  I hope you will understand my situation as this is very important for my life.  This decision going to take big effect on my family.  Looking forward to your kind reply.  Thank you.

4. The Minister did not respond to that email; and although the email was drawn to my attention on 3 April 2018, I decided that I would do nothing about it as, indeed, there was nothing I could do other than assume that the hearing would proceed and, possibly, that the applicant would, at the hearing, apply for an adjournment.  That is, indeed, what occurred. 

5. I came on the bench at 10.30 am rather than at 10.15 am because the applicant was not in the Court or in the Court precinct at that time. When I came onto the bench at 10.30 am matter was called.  There was no appearance by the applicant. Ms Saunders, who appeared for the Minister, then applied for an order that the matter be dismissed on account of the applicant’s not being present.  As I was setting out reasons for my intention to dismiss the proceeding, the applicant appeared.  I then asked the applicant whether he was seeking an adjournment and he confirmed that he was. 

6. I informed the applicant that he needed to persuade me that there were grounds for adjourning the hearing.  I asked him why he was not ready to proceed.  He said he has been sick, he had money problems, he did not organise his papers, and his wife is not available to be in Court today.  I drew the applicant’s attention to the fact that, in his email to the Minister, he said nothing about his being sick.  The applicant, as I understood him, said possibly two things, one of which was he forgot to include it and possibly he also said that his being sick was intended to be included in his reference in this email to him undergoing hard times.

7. In any event, the nature of the sickness is not supported by any medical certificate.  The applicant explained to me that that was due to his not having money to see a doctor.  He also, however, seemed to say that he has seen a doctor and, as best as I can tell, the condition of which he claims to suffer from is some form of psychological condition.  When I asked him what papers he had failed to organise and which he wished to organise, he said they are documents such as bank statements. In broad terms, as I understood it, the applicant wanted to get together documents which were relevant to his establishing that he and his wife are genuine spouses or are in a genuine spousal relationship.  I asked the applicant why, given that the matter was set down for hearing over a year ago, he had not put together the documents which he says he now needs time to put together.  The applicant said he was suffering from “difficulties” and “problems”.  The applicant was did not give any more particular details of the difficulties and problems from which he was suffering.

8. I asked the applicant how long he wanted for an adjournment.  As I understood him the applicant said “a couple of weeks” by which I infer he means not two weeks, but a few weeks.  I asked him what he intended to achieve if an adjournment were granted.  He said that he intended to obtain a DNA test in relation to his son.  That is, I think, a reference to the Tribunal inviting the applicant to provide DNA evidence to support of his and his wife’s claims made to the Tribunal that the wife’s son was the applicant’s son. I asked the applicant why he had not obtained a DNA analysis before.  He said he did not have money.  I asked him why he expected now to be in a position to obtain a DNA test.  He said that his family would provide the money.

9. I informed the applicant of what the nature of the function of this Court is.  I informed him that this Court has no function or no jurisdiction to determine whether the applicant was entitled to a partner visa.  That was a matter for the Tribunal to consider.  The function of this Court is to consider whether, on the grounds stated in the application, the Tribunal considered his application according to law. I informed the applicant that even if I were to grant an adjournment, and  even if the applicant were to obtain documents, including a DNA test, I would regard those documents as irrelevant to the tasks I would have to undertaken when reviewing the Tribunal’s decision on an application for judicial review.  The application for an adjournment is opposed by the Minister. 

10. I also asked the applicant what it is that he expected his wife to do if she were present in Court with him.  The applicant said that his wife would be there to help him to deal with questions and, in general, the conduct of the case. I asked him why his wife was not present and he repeated the substance of what he said in his email to the Minister’s lawyer of 29 March 2018, namely, that she was participating in a test in connection with her seeking qualifications as a nurse. 

11. Ms Saunders, who appears for the Minister, opposes the application for an adjournment.  Ms Saunders submitted the applicant had sufficient time to prepare for the hearing.  The submissions he made about his being sick were not supported by any evidence and were, in any event, vague; and that the paperwork the applicant said he wanted to obtain would be irrelevant to his application for judicial review. 

12. When the Court is faced for an application for an adjournment, the ultimate question the Court must determine is whether it is in the interests of the administration of justice that an adjournment is granted. When a Court considers that question, it looks three broad factors. The first is whether an adequate explanation has been given by the party seeking the adjournment why that party is not ready to proceed on the appointed day. A second factor is to determine the prejudice that the party seeking to obtain the adjournment will suffer if an adjournment is not granted. That question is usually determined by asking whether there would be any utility in granting of an adjournment. That is to say, the questions are what it is the applicant intends to do if an adjournment is granted; the likelihood of that intention being fulfilled, and, if fulfilled, whether that would materially benefit the applicant.  And the third matter the Court usually considers is the prejudice that will flow to the party opposing the adjournment if an adjournment is granted.

13. I then turn to these three considerations. The first is whether the applicant has given any adequate explanation why he is not ready. In my opinion, no adequate explanation has been given. The applicant has had over a year to be ready to present his case. Even assuming - and I will, for the purposes of this application assume - that the applicant has been sick, there is no evidence of the nature of the sickness, the extent to which that sickness affected the applicant’s ability to prepare the case and over what period the applicant has been sick.

14. Then I consider what prejudice would flow to the applicant if an adjournment is not granted.  As I have already noted, the applicant said he needs time to obtain documentation. The only documentation, however, that it appears the applicant says he intends to obtain is documentation which is relevant to whether the applicant and his wife are in a genuine spousal relationship.  As I have already noted, and as I have already informed the applicant, that is not an issue that is permissible for me to look into. The only issue I can look into is whether, on the ground stated in the application and, perhaps, on any other ground the applicant may wish to advance at the hearing, the Tribunal committed a jurisdictional error.  More simply, the question is whether the Tribunal, in conducting its review of the delegate’s decision, did so according to law.  That means that, even if I were to grant an adjournment, and even if the applicant were to do that which he says he will do - namely, obtain documents relevant to the genuineness of the spousal relationship between him and his wife, that would bring no benefit to the applicant.

15. Finally, I turn to the prejudice that the Minister will suffer.  The only immediate prejudice is that if an adjournment is granted, there would be costs thrown away by reason of the adjournment.  That usually is not a significant issue because that prejudice can be and is remedied by an appropriate order for costs.  However, in the case before me, given the applicant has stated he has money problems, making an order for costs would be an empty remedy so far as the Minister is concerned. 

16. Considering all these matters together, and, in particular the absence of any utility if I were to grant an adjournment, I am of the opinion it is not in the interests of the administration of justice that the application for an adjournment be granted.  I therefore propose that the application for an adjournment be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 April 2018