Phan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 79
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Phan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 79
File number: PEG 108 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 31 January 2024 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for an interlocutory hearing – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(d) Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 31 January 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 108 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VAN NHAN PHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.The request from the applicant made via email on 31 January 2024 at 12.43pm for an adjournment of the final hearing in this matter be taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) be dispensed with.
2.The interlocutory application for an adjournment made by the applicant on 31 January 2024 be dismissed pursuant to r 13.06(1)(d) of the Rules.
3.No order as to costs.
4.Written reasons for judgment in relation to the interlocutory application for an adjournment to be published from Chambers at a later date.
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).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This interlocutory hearing (regarding the applicant’s adjournment request) was listed before the Court for hearing at 1.00pm on 31 January 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.The request from the applicant made via email on 31 January 2024 at 12.43pm for an adjournment of the final hearing in this matter be taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) be dispensed with.
2.The interlocutory application for an adjournment made by the applicant on 31 January 2024 be dismissed pursuant to r 13.06(1)(d) of the Rules.
3.No order as to costs.
4.Written reasons for judgment in relation to the interlocutory application for an adjournment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 above. They explain why the Court dismissed the interlocutory application for an adjournment for non-appearance.
BACKGROUND
This matter was listed for a final hearing of the substantive application on 31 January 2024 at 1.00pm. The parties were notified of that listing by my chambers (via email) on 30 August 2023.
On 25 January 2024, the parties were reminded of the date, time and location of the hearing by my chambers. They were also provided instructions for an “in person” attendance at the Perth Registry of the Court.
On 31 January 2024 at 12.43pm (that is, 17 minutes before the listing time for the substantive hearing), the applicant wrote to the Court via email stating (without alteration):
Dear Sir
I am unable to attend the hearing court today because of illness please find the attached doctor certificateWith that email correspondence, the applicant provided a medical certificate dated 31 January 2024. That medical certificate stated (without alteration):
Certificate of Capacity / Incapacity for Work / School
I certify that in my opinion Mr.
/ Mrs. / Miss / MsVan Nhan Phan
was / has been /will befit /unfit for work/ schoolon account of personal illness
from 31-01-24 to 1-2-24 inclusive.
On 31 January 2024 at 1.05pm, my chambers wrote to the parties as follows:
I refer to the email correspondence below in relation to the applicant’s adjournment request. I confirm that the matter is currently listed for a final hearing before this Court today (31 January 2024), at 1.00pm.
The Court is sympathetic to the concerns raised by the applicant in the email correspondence to this Court.
His Honour Judge Kendall notes that the applicant has not filed an application in a proceeding requesting an adjournment, which is the usual process to be followed when seeking an adjournment. However, noting that the applicant is self‐represented, His Honour is willing to consider the request below in its current form.
In the circumstances, His Honour Judge Kendall considers it appropriate for the matter to be listed for a hearing of the interlocutory application for an adjournment followed by a final hearing (if deemed appropriate) at 1.00pm today (31 January 2024). The applicant has leave to appear via video link (using Microsoft Teams) and details in that regard are set out below.
The purpose of the directions hearing is to allow His Honour to have a conversation with the parties about the request for an adjournment and to discuss any evidence provided by the applicant with the parties. Should His Honour determine that the matter cannot proceed to a final hearing, the hearing will be vacated and the matter relisted for a final hearing at a later date. If His Honour considers that the matter can proceed to a final hearing, the matter will be heard immediately following the directions hearing.
For the avoidance of confusion, Chambers confirms that the parties should be prepared to proceed to a final hearing (in relation to the substantive review application) today if His Honour considers it appropriate to do so.
The Court notes that, in the event that the applicant does not appear at the hearing of the interlocutory application for an adjournment and (if deemed appropriate), the final hearing this afternoon, the Court may dismiss both the interlocutory application for an adjournment and the substantive review application for non‐appearance pursuant to rules 13.06(1)(d) and 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) respectively.
The applicant was also provided instructions on how he could appear at the interlocutory hearing via video link.
As outlined above, when the matter came before this Court (at 1.26pm on 31 January 2024), despite the matter being called three times, there was no appearance by or on behalf of the applicant (either in person or via video link using Microsoft Teams). Ms Georgina Ellis (“Ms Ellis”) appeared in person on behalf of the Minister.
The Court indicated that it was prepared to accept the applicant’s earlier email to the Court as an interlocutory request for an adjournment and that it was prepared to proceed on that basis.
Ms Ellis advised the Court that the Minister opposed the adjournment request. Ms Ellis also told the Court that the Minister would also be agreeable to the interlocutory application for an adjournment being dismissed pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) if the Court was minded to do so. Ms Ellis also agreed that the Minister would not seek costs in relation to the applicant’s request for an adjournment.
Correspondence from the applicant to my chambers (and the response from my chambers to the applicant, as outlined above) was tendered and referenced as Exhibit 1.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the interlocutory hearing and how he could appear at that hearing (either in person or via video link).
CONCLUSION
In the circumstances, the Court made orders to dismiss the interlocutory application for an adjournment for non-appearance, as outlined at [2] above.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 February 2024
1
0
1