Miglani v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 291

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Miglani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 291  

File number:	MLG 2731 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	27 March 2023
Catchwords:	MIGRATION – cancellation of dependent student visa – adjournment application – whether adjournment would realistically allow the applicant to obtain legal assistance – whether the applicant was unable, for physical and mental health reasons, to effectively participate in the hearing today – whether an adjournment is necessary to enable the applicant to get relevant documents from his house in Horsham – whether an adjournment is necessary to enable the court documents to be translated into Punjabi.
Division:	Division 2 General Federal Law
Number of paragraphs:	21
Date of hearing:	27 March 2023
Place:	Melbourne
Advocate for the Applicant:	In person
Advocate for the First Respondent:	Catherine Oppel
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	No appearance
Solicitor for the Second Respondent:	Australian Government Solicitor

ORDERS

MLG 2731 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUNNY MIGLANI
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	27 march 2023

THE COURT ORDERS THAT:

1.The applicant’s oral application for an adjournment of the final hearing of this matter be refused.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE RILEY:

1. This is an application for an adjournment of the final hearing of a judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister. The decision was to cancel the applicant’s dependant student visa. The applicant obtained a student visa as a dependant of his wife.

2. The applicant’s student visa was cancelled in circumstances where he pleaded guilty to two counts of sexual assault and one count of false imprisonment. The applicant is now in immigration detention.

3. The applicant had a number of reasons in support of his adjournment application. 

4. The first reason was that he wants time to obtain legal assistance. His application to this court appears to have been filed with some legal assistance. The email given for contact for the purposes of these proceedings is [email protected]. However, the application did not include a lawyer’s certification, and it is signed by the applicant himself. 

5. The applicant told the court that he had assistance initially with the filing of his application.  However, he said the lawyer told him that he needed to provide another $8,000 to $10,000 or more for further assistance with the matter.

6. When pressed by the court, the applicant said he needed six to seven months or five to six months to get the money to pay the lawyer. When asked how he would get the money, the applicant said he had asked his family for assistance. He said his father is retired and earns about $400 to $500 per month. 

7. The Minister noted that the application was filed on 12 December 2022 and that the applicant has had three months to organise his legal assistance. The applicant said that his family would borrow the money. The Minister noted that the applicant did not provide any evidence from his parents that they intend to support him financially to get legal assistance. There was also no evidence about why they had not borrowed the money already and how they would be able to borrow the money in the future if they have such a low income.

8. The Minister also noted that the applicant was experienced in litigation, having arranged counsel for his criminal matters and migration agents before the Department and the Tribunal.

9. The Minister also noted that his solicitors wrote to the applicant on 1 February 2023 urging him to get legal advice and giving him contact details for Victoria Legal Aid. There is no indication that the applicant followed the suggested path.

10. The applicant said that he did not become aware of the hearing today until a few weeks ago. The fact is that the information about the hearing was sent to the email address nominated on the application filed by the applicant. It was up to the applicant to ensure that the court had an up to date contact email for him.

11. In any event, the applicant knows that he filed his application on 12 December 2022, so he has known since then that he needed to organise legal assistance if that is what he wanted.

12. I am not persuaded that granting an adjournment would be of any utility for the purposes of obtaining legal assistance. It seems to me that there is very little prospect of the applicant’s family being able to borrow the $8,000 to $10,000 that the applicant says he needs. There is also no evidence from the applicant’s family that they are willing to assist him financially to get legal assistance.

13. The applicant’s second major reason for seeking an adjournment is that he has physical health and mental health problems. He claims to be seeing a psychiatrist weekly while in immigration detention and to be taking medication for anxiety and depression. In the court book there is considerable evidence to the effect that the applicant does suffer from anxiety and depression as well as post-traumatic stress disorder.

14. However, the question is whether the applicant is able to effectively participate in the hearing today. There is no medical evidence to the effect that the applicant is not so able.  The applicant said that he could get a report from a psychiatrist in two or three weeks. However, he has known about the hearing for at least two or three weeks and has not arranged the appropriate evidence in that time.

15. More to the point, he has participated effectively in the hearing today of his application for an adjournment. I am not persuaded that the applicant needs an adjournment to be able to participate effectively in the substantive hearing. I am also not persuaded that an adjournment would put the applicant in a better position medically than he is now.

16. The applicant also said that he wanted an adjournment to be able to get some documents from his home in Horsham. The applicant is unable to identify what these documents will be. He obviously would have been sent the court book and any documents filed in the court electronically, so it is unclear what could be gained by the applicant actually getting the physical documents from Horsham.

17. The applicant’s wife is currently living in the house in Horsham. I had understood that there was an intervention order against the applicant protecting his wife. The applicant says that is not the case. If that is so, it is difficult to understand why the wife would not send the documents to the applicant. In any event, an adjournment would not help the applicant to get these documents, because he will not be allowed out of detention unless and until this matter is resolved in his favour. All in all, I cannot see any utility in adjourning the matter to enable the applicant to obtain unspecified documents from his house in Horsham.

18. The applicant also said that he needed an adjournment to enable all the court documents to be translated into Punjabi for him. The applicant seemed to want the court or the Minister to organise the translation of the documents. However, neither the court nor the Minister has any obligation to do so.  It is the applicant’s responsibility to organise a translation if he wishes.

19. In any event, the Minister noted that most of the documents in the court book, at least two-thirds, were provided by the applicant himself. Some of those documents related to the applicant’s previous criminal proceedings, in which he was represented. Presumably, he would have had those documents explained to him at the time.

20. In addition, the court book contains some letters from the applicant’s previous employer in India. Those letters were written in English and addressed to the applicant. The Minister also noted that the applicant has a Master of Business Administration from India and that English is one of India’s two official languages. The Minister submitted that the applicant probably understands English. However, the basic point in this issue is that if there was any need for documents to be translated, it is up to the applicant to arrange that. The applicant should have attended to these matters earlier and should not require an adjournment to get any necessary translation.

21. Taking the various matters raised by the applicant individually and cumulatively, I am not satisfied that it is appropriate to grant an adjournment of the final hearing of this matter.  The applicant’s oral application for an adjournment of the final hearing of this matter will be refused.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       27 March 2023