Mohammed v Minister for Immigration

[2013] FCCA 1977

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1977

Catchwords:
MIGRATION – Late application by applicant for adjournment – applicant’s medical certificate not indicating applicant unable to attend court – adjournment refused – application dismissed for non-attendance.

Legislation:  

FederalCircuitCourtRules2001 (Cth), rr.7.01, 13.03A

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Applicant: RAYEES AHMED AMER MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 735 of 2013

Judgment of: Judge Burchardt

Hearing date: 31 October 2013

Date of Last Submission: 31 October 2013

Delivered at: Melbourne

Delivered on: 31 October 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The Applicant’s application for an adjournment is refused.

3. Pursuant to r.13.03A of the FederalCircuitCourtRules2001 (Cth), the application be dismissed for non-attendance of the applicant at Court this day.

4. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646 or such lesser figure as the Court’s scale of costs provides.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 735 of 2013

RAYEES AHMED AMER MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant has sought an adjournment, and I have declined to grant that adjournment, and I will give some short reasons which will be transcribed and placed on the Court file in case the matter becomes relevant subsequently. 

2. The Court made orders by consent made by Registrar Allaway on 7 August 2013.  Those orders listed the matter today at 9.30am before me.  The orders being made by consent it is plain that the applicant knew all about them.  The applicant’s address for service is 4/18 Bishop Street, Kingsville, Victoria, and there was not until yesterday the faintest intimation that he was not in Victoria. 

3. Yesterday afternoon one of my Associates received contact from the applicant who, if I may say, had not availed himself of the opportunity provided to him by Registrar Allaway’s orders to take certain, admittedly optional, interlocutory steps on his own behalf, and as the matter has been reported to me and email correspondence appears to confirm, the applicant indicated that he was seeking an adjournment on the basis of a medical condition.  As it transpired what has happened is that a copy of a medical certificate from the Strathalbyn Medical Clinic in South Australia given, it would appear, by Dr Azlan Ismail certified that the applicant is receiving medical treatment and for the period 30 October 2013 until 1 November 2013 inclusive he will be unfit to continue his usual occupation. 

4. It has been understood from what the applicant has told Mr McDermott, who acts for the first respondent, that he has indicated he would not be able to attend the hearing today because he has a bleeding haemorrhoid and was too weak to attend by telephone.  He subsequently sent another email copied to my associate but sent to Mr McDermott which I will read out:

   “Dear Christopher,

   I would like to inform you that I am living with my wife in South Australia at the moment, As I happen to fall sick here I couldn’t attend for the hearing, please consider my request…

   yours faithfully

   Rayees Ahmed Amer Mohammed”

   The first respondent has forwarded some written submissions in opposition to the adjournment.  The first point made is that the certificate does not explain why the medical condition would prevent the applicant from attending, and reference is made to NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 per Lindgren J at [6]. With the greatest of respect, his Honour’s observations entirely accord with my own views which are that this certificate does not tell us why he cannot be here. There is no explanation beyond the vague assertion that he has moved to be with his wife in South Australia as to why he is not in Victoria.

5. He has, far from seeking to appear by telephone, said that he is unable to do so, and for reasons I indicated in discussion with Mr McDermott it is not appropriate to telephone the applicant who would doubtless say that he was either unable to participate or taken improperly by surprise.  There are quite a number of things to be considered about adjournments, and I refer generally to the High Court’s decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. It is no small matter to put a matter into the lists of this Court which is already extremely busy, and given the superficially unsatisfactory explanations advanced by the applicant for his non-attendance in my view it is not appropriate to adjourn, and I have not done so. I have therefore dismissed the application for the non-attendance of the applicant. He has his rights to seek to reinstate his proceedings should he so wish.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  26 November 2013