Sherpa v Minister for Immigration

[2020] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERPA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1662

Catchwords:
MIGRATION – Application for Student Visa – no appearance by applicant at hearing – no medical evidence in support of claim that applicant was medically unable to attend hearing – application dismissed due to absence of applicant.

Legislation:

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

Cases cited:

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1559.

MZAKQ v Minister for Immigration & Anor [2016] FCA 1392.

First Applicant: NIMA YANGJEE SHERPA

Second Applicant: KHEDUP SANGPO LAMA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1107 of 2019

Judgment of: Judge Egan

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Brisbane

Delivered on: 18 June 2020

REPRESENTATION

First Applicant: No appearance

Second Applicant: No appearance

Solicitor for the First Respondent: Ms Wickramasinghe of Clayton Utz

ORDERS

1. The application for review filed on 24 December 2019 be dismissed pursuant to the provisions of Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the non-appearance of the applicants.

2. The first applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1107 of 2019

NIMA YANGJEE SHERPA

First Applicant

KHEDUP SANGPO LAMA

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing today at 9.45 am.  When the matter was called for hearing, there was no appearance, either in person or by telephone, by the female applicant, who is the lead applicant in this proceeding.

2. The Associate was asked to call the matter three times outside the court.  The Associate indicated that he did that.  The Associate had also indicated to the court that he had twice attempted to telephone the applicant, at about 9.45 am, in circumstances where the applicant did not answer the call on each occasion of so being called.  In that regard, Judge’s chambers had sent an email to the parties on 9 June 2020 advising the parties that the hearing today would be conducted by telephone.  The Court marks that email from the Judge’s Associate to the parties, sent on 9 June 2020, as Exhibit 8. 

3. It transpired that on 13 June 2020, an email was sent to Judge’s chambers by the applicant, indicating that she had divorced the male second applicant, and advising that she had no job. The email also indicated that she was planning to go back to her country but was stuck in Australia because all borders were closed. 

4. On 15 June 2020, Ms Wickramasinghe, on behalf of the first respondent, asked the applicant by email what her intentions were in relation to her further involvement in the subject proceedings.

5. On 17 June 2020, the applicant indicated by email to Ms Wickramasinghe that she was not ready to proceed with the matter.  The applicant indicated that she was not intending to withdraw from the proceedings, and that she needed some more time.  It was expressed by the applicant in such email that she had been depressed since the start of the virus (presumably COVID-19), which was said to have taken away her job, her saying that she had been jobless for a three month period.  It was said by the applicant that she had no income. 

6. After Ms Wickramasinghe had asked the applicant further as to her intentions, in an email of 16 June 2020 the applicant indicated that she wanted an adjournment of the hearing. Ms Wickramasinghe obtained instructions.  Those instructions were conveyed to the applicant by email dated 18 June 2020 at 9.14 am.  The matters which Ms Wickramasinghe brought to the Court’s attention, as included in that email, were as follows: 

   “1. You have delayed until less than one day prior to the hearing to seek to have this adjournment made, notwithstanding the parties being aware of this listing since 9 April 2020, and us explicitly reminding you of this listing on 4 June 2020 and his Honour’s Associate’s email to the parties on 9 June 2020;

   2. the absence of any medical evidence or evidence that you have sought medical assistance;

   3. you have not provided any clear estimate of when you would expect to be in a position to appear at a final hearing of this matter; and

   4. that your request arises in circumstances where the application has been on foot since 24 December 2019.”

7. The points raised by Ms Wickramasinghe in her email of 18 June 2020 are cogent, and relevant to the Court’s consideration as to whether it should exercise its discretion to adjourn this matter.  As to the matters raised in such email, the Court makes the following observations:

   (1)The Originating Application was filed in December 2019.  The application for an adjournment was made one day before the date set for final hearing of the matter.  The matter was listed for hearing today by an order made in April 2020.  The Court does not consider that the applicant’s notice of her intention to seek an adjournment of the hearing, made as it was to the lawyers for the first respondent and not the Court, was, in the circumstances, reasonable. 

   (2)The applicant has asserted that she is suffering from depression, but there is no evidence before the Court as to her in fact suffering from such condition.  In circumstances where the applicant has not put any medical evidence before the Court which suggests that the plaintiff is, for medical reasons, unable to proceed with the hearing of her application today, the Court does not accept that the applicant is suffering from any such medical condition, as claimed.  In that regard, the Court relies upon the decisions of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and Logan J in MZAKQ v Minister for Immigration & Anor [2016] FCA 1392. In such circumstances, the Court places no weight upon the claim made by the applicant that she is suffering from any medical condition.

   (3)The applicant has provided no time estimate for her prospective availability to participate in the proceedings.  That was so in circumstances where the Court, for good public policy reasons, should not be put in the position of accommodating unspecified claims made on behalf of applicants in matters such as this.

8. In all of the circumstances, the Court is not prepared to adjourn the matter.  The applicant is absent, and it is considered appropriate, due to the absence of any supporting evidence, for the request for the adjournment to not be acceded to. 

9. In those circumstances, the Court orders that the application filed on behalf of the applicant be dismissed pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

10. In making such order, the Court is mindful of the fact that the applicant is, by reason of the dismissal of the applicant’s claim due to her absence, able to make application for reinstatement of the proceeding. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 23 June 2020