Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 107
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107
File number: MLG 527 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 14 February 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – matter listed for hearing of an interlocutory application – application for adjournment granted. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 4.01 & 4.06
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2016] FCA 108
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 14 February 2023 Place: Perth Applicant: Ms G Sekhon with and on behalf of the applicant Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 527 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARMANPREET SINGH SIDHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
14 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The request made on behalf of the applicant via email on 8 February 2023 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) be dispensed with.
3.The interlocutory application for an adjournment referred to in order 2 above is granted.
4.Costs in relation to the application for an adjournment be reserved.
5.Written reasons in relation to the adjournment will be published from Chambers at a later date.
6.The matter be re-listed for a final hearing on 3 April 2023 at 2.30pm (AEST) / 12.30pm (AWST).
7.Any further request for an adjournment must be made at least 7 days prior to the hearing listed in order 6 above and must be accompanied by detailed medical evidence.
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 matter was listed before me for the hearing of an interlocutory application for an adjournment at 2.00pm (AEDT) / 11.00am (AWST) on 14 February 2023.
Having heard from the parties, I ultimately made the following orders:
1.The parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The request made on behalf of the applicant via email on 8 February 2023 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) be dispensed with.
3.The interlocutory application for an adjournment referred to in order 2 above is granted.
4.Costs in relation to the application for an adjournment be reserved.
5.Written reasons in relation to the adjournment will be published from Chambers at a later date.
6.The matter be re-listed for a final hearing on 3 April 2023 at 2.30pm (AEST) / 12.30pm (AWST).
7.Any further request for an adjournment must be made at least 7 days prior to the hearing listed in order 6 above and must be accompanied by detailed medical evidence.
These reasons for judgment are those referred to in order 5 above. They explain why I granted the interlocutory application for an adjournment on medical grounds.
Background
This matter was listed for a final hearing of the substantive application on 10 February 2023 at 11.30am (AWST). The parties were notified of that listing by my chambers (via email) on 10 July 2022. At that point in time, the final hearing was scheduled to commence at 11.00am (AEDT) / 11.00am (AWST)).
On 8 February 2023, the parties were reminded of the date and location of the hearing. The parties were also advised that the hearing would now commence at 2.30pm (AEDT) / 11.30am (AWST) and were provided instructions to appear via video link at that hearing.
That evening (that being on 8 February 2023 at 5.01pm), the applicant’s wife wrote to my chambers via email stating (without alteration):
Hi, I am writing on the behalf of Harmanpreet Singh sidhu, requesting to extend the hearing date I.e. on 10 February 2023, if possible as he is not in the state of answering any question. I have also attached the medical certificate below.
Regards
[Applicant’s wife]
With that email correspondence, the applicant’s wife provided a medical certificate dated 7 February 2023 (the “first medical certificate”). The first medical certificate stated (without alteration):
This is to certify that Mr Harmanpreet Singh Sidhu has a medical condition and will be unfit for work/study from 07/02/2023 to 12/02/2023 inclusive.
In reply (also on 8 February 2023 at 5.59pm), my chambers advised the parties that matter would be listed for a directions hearing on 10 February 2023 at 2.30pm (AEDT) / 11.30am (AWST) to discuss what appeared to be a request for an adjournment, followed by a final hearing (if deemed appropriate). The correspondence to the parties also noted that the evidence provided in support of the adjournment request did not explain why applicant was unable to participate in a Court hearing via video link, or, indeed, why the applicant was unable to participate in a court hearing more generally.
On 9 February 2023, a representative from Sparke Helmore (lawyers for the first respondent (the “Minister”)) wrote to my chambers advising that the Minister opposed the request for an adjournment. That correspondence provided:
Further to the below, I confirm that the Minister opposes the applicant’s request for an adjournment on the basis that the evidence provided by the applicant does not establish why an adjournment is required. The medical certificate indicates that the applicant is unfit for work but does not explain why the applicant is unable to participate in a Court hearing, specifically one that is proceeding via video link.
In reply (also on 9 February 2023), my chambers confirmed that the matter remained listed for both a directions hearing (in relation to what I deemed to be an interlocutory application for an adjournment) and, if the adjournment request was not granted, a final hearing (in relation to the substantive review application) at 2.30pm (AEDT) / 11.30am (AWST) the following day (that is, on 10 February 2023) (via video link).
When the matter came before me on 10 February 2023, the applicant’s wife appeared with (and on behalf of) the applicant. Mr Lettenmaier of counsel appeared on behalf of the Minister.
The applicant’s wife advised me that her husband was currently medicated and was unable to communicate with the Court or participate in a hearing.
I explained to the applicant’s wife that my powers to grant an adjournment were governed by fairly strict rules and case law but that I would nonetheless seek to assist her and her husband (as an unrepresented applicant) to the extent that I could do so.
In the circumstances (noting that the applicant was self-represented and was unable to speak), I adjourned the matter to 14 February 2023. I did so to allow the applicant to provide further medical evidence explaining why he was unable to participate in further Court proceedings. I explained that it would assist me if the medical evidence provided allowed me to better understand the nature of the medical condition and, if the applicant is medicated, whether that medication rendered him unable to assist me in further Court proceedings (via video link).
I stressed that it was very important for the applicant to provide further medical evidence, prior to 14 February 2023, so that the matter could be determined expeditiously.
On 13 February 2023, further correspondence was received from the applicant’s wife (via email) which provided as follows (without alteration):
… I have attached the medical condition of Harmanpreet Singh Sidhu. The treating Doctor is on leave till next Monday so I have requested the medical certificate from other Doctor. We are happy to join tomorrow’s hearing but I am not sure if he is able to answer properly or not.
Regards
[Applicant’s wife]
Attached to that email correspondence was a medical certificate dated 13 February 2023 (the “second medical certificate”) which stated (without alteration):
With regard to Mr. Haranpreet Sidhu, age 34yrs 6mths, has anxiety / stress and due to this he is unable to sleep.
On 14 February 2023, my chambers wrote to the parties confirming receipt of the second medical certificate and further confirming that that document would be discussed with the parties at the hearing of the interlocutory application for an adjournment later that day.
Prior to the hearing of the interlocutory application (on 14 February 2023 at 10.31am), the applicant’s wife provided further material in support of the applicant’s adjournment request, comprising:
(a)an “Official Pharmacy Receipt” dated 7 February 2023 from [Omitted] for medication prescribed to the applicant;
(b)a “tax Invoice” for professional services from Dr [Omitted] dated 7 February 2023;
(c)a “duplicate tax invoice/receipt” from [Omitted] Clinic dated 6 February 2023; and
(d)a copy of a box of medication prescribed to the applicant and dispensed on 6 February 2023. The medication provided a warning which read “*Do NOT stop taking this medication abruptly unless advised by your Dr *May affect alertness and/or coordination. If affected, do not drive or operate machinery”
When the matter came before me on 14 February 2023, the applicant’s wife again appeared with (and on behalf of) the applicant. Mr Lettenmaier of counsel appeared on behalf of the Minister.
Noting the correspondence provided above, I confirmed that I would proceed on the basis that the applicant was formally seeking an adjournment by way of application. In the circumstances, I waived 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 Minister did not object to this course of action.
I confirmed with the parties that I had received the applicant’s medical evidence outlined above (at [19]). Mr Lettenmaier advised that his instructions were to oppose the adjournment request.
The applicant (through his wife) advised that, given the medication the applicant was currently taking, he would not be able to participate in the hearing. The applicant’s wife explained that the applicant’s regular doctor had initially prescribed some medication but, as that medication “was not working”, the applicant had been referred to another doctor who then prescribed the “new medication” detailed in the materials before the Court. The applicant’s wife also told the Court that, “with the help of that medicine, he is getting his sleep back”. Finally, the applicant’s wife explained that the new doctor was currently away but “would return the following Monday”.
The correspondence between the parties and my chambers in relation to the adjournment application (as outlined above, and including all relevant medical documentation) was tendered and referenced as Exhibit 1.
Mr Lettenmaier stressed that the Minister opposed the adjournment on the basis of “inadequacies in the medical evidence provided”.
A court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding then it may exercise its discretion to grant an adjournment.
When determining whether or not an adjournment should be granted, the following factors are considered:
(a)the evidence in support of the adjournment request and the explanation for the adjournment;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
I noted that, jurisprudentially, the medical evidence provided was not as sound as it could be. Nonetheless, it was noted that it raised concerns in relation to medication which aims to address cognitive deficiencies.
While the medical certificates in this matter did not provide all of the information generally expected as per the reasoning cases such as Singh v Minister for Immigration and Border Protection [2016] FCA 108 (citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559), I was nonetheless satisfied that the combined medical evidence, viewed contextually (and noting that the matter could be brought back on in a timely manner – ie. in seven weeks-time), did go some way towards satisfying the Court that an adjournment was appropriate in this matter. Relevantly:
(a)the first medical certificate indicates that the applicant was unable to participate in work or study for a set period of time;
(b)the second medical certificate indicates that the applicant suffers from stress and anxiety which results in him being unable to sleep;
(c)the medication the applicant is currently taking indicates, in its instructions, that it may “affect alertness”; and
(d)the pharmacy receipt indicates that the applicant has been on at least one other medication to assist him with his mental health condition.
I determined that the medical evidence provided, cumulatively, raised concerns about the applicant’s current cognitive abilities. Further, while the applicant appeared with his wife at the directions hearing and interlocutory hearings referenced above, it was quite evident that he could not actively participate or assist the Court with the complex issues that needed to be canvassed.
I ultimately determined that, in order for the applicant to have an opportunity to adequately present his case, I would adjourn the matter to 3 April 2023 (being a period of approximately seven weeks).
I explained to the applicant (through his wife) that, in the event that a further adjournment was requested, any such adjournment request would need to be made at least seven days prior to the hearing on 3 April 2023. I also stressed that any further adjournment request would need to be supported by detailed medical evidence explaining what, precisely, it is about the applicant’s health which makes it difficult for him to participate in a Court hearing, whether the illness is ongoing and, if so, when it might be adequately addressed.
Conclusion
In the circumstances, I made orders granting the application for an adjournment, as outlined at [2] above.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2022
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