Saleem v Minister for Immigration

[2016] FCCA 567

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALEEM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 567

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Class TU) (Subclass 572) visa – email request for adjournment of hearing – not granted – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Applicant: SHAHID SALEEM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2494 of 2014

Judgment of: Judge Hartnett

Hearing date: 29 February 2016

Delivered at: Melbourne

Delivered on: 29 February 2016

REPRESENTATION

Counsel for the First Respondent: Mr Hutton

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS MADE ON 29 FEBRUARY 2016

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Applicant’s email request of this day for an adjournment of these proceedings is refused.

3. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

4. The Applicant pay the costs of the First Respondent fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2494 of 2014

SHAHID SALEEM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) filed on 10 December 2014.  The grounds as set out in that application are as follows:

   “(1)   To justify study gap;

   (2)     Pleas attack (sic) letter No 1”

   Attached to the application is a letter of 10 December 2014 to the Court, from the Applicant. It is, generally speaking, a cut and paste copy of the submission made by the Applicant to the Department of Immigration and Border Protection of 25 February 2014 in respect of the Applicant's application for a Student (Class TU)  (Subclass 572) visa which was lodged at Melbourne on 23 January 2014.

2. The grounds of application are meaningless, and indeed are no grounds at all.  What is set out in the application and the accompanying affidavit sworn or affirmed by the Applicant on 10 December 2014 and filed in these proceedings, is a non-engagement with this Court's judicial review processes, and irrelevant to the question for the Court's determination, which is does the Tribunal decision of 11 November 2014, to affirm the delegate's decision not to grant the Applicant a Student (Temporary) (Class TU) visa, have attending it jurisdictional error so as to require a quashing of the decision and remittal of the proceedings to the Tribunal to determine according to law.

3. The application itself is relevant to the first matter which the Court must consider this day, and that is the Applicant's email request for an adjournment of the proceedings.  At 12.27 pm this day, the Applicant emailed the Court as follows:-

   “This the Shahid

   MLG 2494/2014

   I' regret to inform you my mom passed away

   Last night of Sunday 6 pm, becz of cancer

   I couldn't go back home when she hospitalized

   I am having frequent Panic attack which i never suffered before until recent

   That why i am not be able to to come to hearing today.  hope you understand the situation

   So request you to extend hearing in court appreciate because my family need me i want to go back home

   I will proved you death certificate later on”

4. In response to the above correspondence from the Applicant, and at 12.55 pm this day, the email correspondence from the Applicant was acknowledged by the Court, and the parties advised relevantly as follows:

   “Please be advised that all requests for the administrative adjournment of court listings must be made with the written consent of all parties in the matter.  Please see attached Notice to Litigants and Legal Practitioners.

   Could the solicitor for the First Respondent please advise Chambers whether the First Respondent consents to the hearing listed today at 2.15 pm being administratively adjourned.  I note that if such administrative adjournment is granted the matter would be listed on 14 April 2016 at 2.15 pm.

   I confirm that the matter currently remains listed for hearing today at 2.15 pm...” 

   The First Respondent opposed the granting of an adjournment of the proceedings as requested by the Applicant.

5. At the commencement of the hearing this day, the Applicant was called outside the courtroom and failed to respond to the call.  The Court also telephoned three phone numbers that have been provided as phone numbers of the Applicant.  One of those phone numbers was disconnected, and the other two went to a mailbox such that no message could be left.

6. The Court notes that the First Respondent has filed a response to the proceedings dated 5 January 2015 wherein the First Respondent sought that the Application be dismissed and that the Applicant pay the First Respondent's costs of the proceeding on the grounds that the decision under review is not affected by jurisdictional error. The First Respondent also relies upon written submissions filed in these proceedings and dated 17 February 2016.  The Court granted leave this day to the First Respondent to file an affidavit affirmed by Mr Jonathan Charles Hutton, lawyer employed by the Australian Government Solicitor, who has the care and conduct of the proceeding on behalf of the First Respondent.

7. The progress of this application has seen an earlier request for an adjournment of the proceedings by the Applicant.  The matter was first listed for hearing on 18 March 2015 for a directions hearing.  The Applicant sought by correspondence to Mr Hutton, of the Australian Government Solicitor, on 13 March 2015, an adjournment of the hearing of 18 March 2015 for at least 10 to 12 weeks.  That request for an adjournment was relevantly as follows:-

   “…I am requesting an extension of time for hearing as my mother is sick and has been hospitalised.  My mother is all alone as my father is no more and there is nobody to take care of her. My relatives are not responding to my calls and not giving me clear picture of health of my mother.  I have already lost my father; I don't want to lose my mother. The circumstances are getting worse in my home country as well.

   I am facing stress and anxiety attacks as my family will be destroyed if anything happens to mother.  I would like to leave immediately for my home country.  I think I have to spend at least three months with my sick mother.

   I would really appreciate if can allow me extension for at least ten to twelve weeks for next hearing schedule...”[1]

   [1] Letter from Mr Saleem to Mr Hutton dated 13 March 2015.

8. In response to the above correspondence, lawyers for the First Respondent sent to the Applicant a draft consent order for his consideration containing standard procedural orders to progress the matter.  The lawyers for the First Respondent advised the Applicant that a copy of the consent orders could be forwarded to the Court for the making of orders, thus excusing the parties from attending the hearing listed for 18 March 2015.  The Applicant did not respond to the email about the draft consent orders, and was advised by the First Respondent that he was thus required to attend the hearing of 18 March 2015.  The Applicant did so, and orders were made that day by Registrar Burns for, amongst other orders, the Applicant to file and serve an amended application with proper particulars of the grounds of the application, if any, and written submissions. No amended application nor any written submissions have been filed and served by the Applicant as required pursuant to the orders of Registrar Burns.  The First Respondent noted to the Applicant that he was ordered to file written submissions in support of his application and that he had not done so, in correspondence of 31 January 2016.  The Applicant was asked whether he would file written submissions.

9. The First Respondent filed written submissions as ordered by the Court and sought to serve same upon the Applicant.  The affidavit of Mr Jonathan Hutton affirmed 29 February 2016, exhibit JCH4, puts before the Court the correspondence from the solicitors for the First Respondent as to their attempts to serve the Applicant with the First Respondent's written submissions.  Relevantly, that correspondence is as follows:-

   “Dear Mr Saleem,

   I am the lawyer acting for the Minister for Immigration in your visa matter.

   We express posted submissions to you, but you refused to accept them. 

   Please find a copy attached to this email.

   I tried to call the number you had listed on your notice for address for service filed on 22 June 2015, but it appears to have been disconnected.

   Please note that your matter is listed for hearing on 29 February 2016 at 2.15 pm before Judge Hartnett.  If you continue to refuse to participate we will seek to have your matters dismissed and ask you to pay the Minister's legal fees.

   Please contact me if you would like to discuss any aspect of your matter.”

10. On 25 February 2016, the Applicant emailed the solicitors for the First Respondent about his mother's illness. The Applicant claimed that his mother had last-stage cancer and that he wanted to go back home to see her.  He said:-

    “…may be she get some comfort if i get some time in my matter in court.”

    The Applicant also attached a document, said to be from the Shaukat Kahnum Memorial Cancer Hospital and Research Centre, Lahore, with the subject “Referral consideration for treatment in forgien countary (sic)”

    This document was claimed to be written by a Dr Javed Asif, but on the letterhead of a Dr Mahmood-Ul-Hasssa of Shaukat Kahnum Memorial Cancer Hospital and Research Centre.  The date of the document is 21 February 2016.  The medical certificate has a number of oddities about it.  The patient's name is Basheera Begum, said to be aged 69 years.  The Applicant by implication claims this is his mother.  The correspondence from the hospital says:-

    “Unfortunately, this patient does not fall within our acceptance criteria and cannot be accepted into our system for treatment at SKMCH & RC.

    We are referring this patients in Jermanyfor (sic) further treatment.  We explained that each country have had massive quality for critical diseases. So shift this patient as soon as possible in forgeion (sic).”

11. On 25 and 26 February 2016, the Applicant and solicitors for the First Respondent emailed each other about the alleged medical certificate and the First Respondent's requests for further evidence.  No further evidence was forthcoming. No affidavit evidence was filed by the Applicant, nor any documents received, relevant to the issue of an adjournment, save the email request for an adjournment of this day.

12. It is not clear to the Court why it is that the Applicant was unable to attend the hearing this day.  There is no medical certificate provided by the Applicant as to his own mental and physical health functioning at the present time, nor any medical evidence as to the Applicant's immediate ill health resulting in him being unable to attend Court on the hearing of his application. There is simply no evidence, let alone any sufficient evidence, of a medical nature.  As to the alleged hospital letter forwarded to the lawyers for the First Respondent, it conveys little of relevance, let alone anything that would provide clarity to the Court as to the Applicant mother's condition. Whether the Applicant returned to Pakistan at all, after his initial request for an adjournment of the proceedings, is not evident. Whether he shall in the immediate future is not evident.

13. The application having no proper grounds of review and being at best an attempt at impermissible merits review, is another relevant consideration for the Court in this application for an adjournment.

14. The Applicant's application for an adjournment of the final hearing of these proceedings this day, is not acceded to.

15. The Applicant is an absent party. Accordingly, the First Respondent sought that the Court dismiss the application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The Court shall make that order, and costs shall follow the event.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 16 March 2016