Singh v Minister for Immigration
[2015] FCCA 1028
•23 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1028 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – email request on morning of hearing – medical certificate provided – adequacy of medical certificate – whether prejudice to parties – whether dismissal for non-appearance removes prejudice – case management considerations. |
| Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a) |
| Al Mamun v Minister for Immigration & Citizenship [2011] FCA 1394 Myers v Myers [1969] WAR 19 Vermuri v Minister for Immigration & Border Protection [2014] FCA 1248 MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| First applicant: | KIMAT SINGH |
| Second applicant: | MANDEEP KAUR |
| Third applicant: | GURNUR KAUR CHEEMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 372 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 April 2015 |
| Date of Last Submission: | 21 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 23 April 2015 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Ms L Gallagher |
| Counsel for the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs in the sum of $5800 by 21 May 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 372 of 2014
| KIMAT SINGH |
First Applicant
| MANDEEP KAUR |
Second Applicant
| GURNUR KAUR CHEEMA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)
In this matter the applicant has applied for review of a decision of the Migration Review Tribunal (“Tribunal”), which affirmed a decision made by a delegate of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant an Employer Nomination Residence Class BW visa (“Employer Nomination Visa”), pursuant to the relevant provisions of the Migration Act1958 (Cth) (“Migration Act”).
It is unnecessary to set out the background to the judicial review application personal to the applicant in circumstances where an adjournment is sought.
In this matter an order was made by a Registrar on 19 February 2015, setting the matter down for hearing for today, together with orders for the provision of submissions and a list of affidavits and an amended application by the applicant, none of which, the Court notes, have been filed by the applicant.
The Court has been notified through Chambers of a written request, not an application in the appropriate form, by the applicant for an adjournment of the proceedings today. The Minister opposes any adjournment. The request for an adjournment is made on the basis of what the Court has already described to Counsel for the Minister as a “bare” medical certificate from a doctor who indicates that he examined the applicant on 20 April 2015, and simply says that he will be unfit for his normal work from 20 to 22 April 2015, inclusive.
The Court notes that the medical certificate does not indicate what the normal work of the applicant is, nor does the certificate state any particular condition or ailment or injury from which the applicant is suffering. Furthermore, the certificate does not indicate why it is that the applicant cannot attend Court. Indeed, there is no indication on the face of the certificate that the certifying doctor was aware that the applicant was required to attend Court today. That is relevant because there are decisions of the federal courts which do indicate that being unfit for normal work is not necessarily something which might preclude a person from attending Court. It all depends upon the nature of what ails the particular person concerned.
The Court also notes that the request for adjournment was not made until, the Court is advised, 10.24am this morning by email, in circumstances where the certificate was provided to the applicant by his doctor at some time yesterday, in respect of a hearing which has for the better of two months been listed for 2.15pm today. So the request for adjournment is, in those circumstances, made late.
The Court also notes that to the extent that there might be any prejudice to the applicant by a refusal of the request for an adjournment, that prejudice might be overcome by making an order, as has been suggested by Counsel for the Minister, dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for non-appearance. That gives the applicant an opportunity, at least, to apply to persuade the Court why any order which would be made for dismissal because of non-appearance might then be set aside: FCC Rules, r.16.05(2)(a).
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev (“MZZZL”).
In refusing the adjournment, the Court has had regard to all the circumstances of this case, and particularly:
a)that the medical certificate is a bare medical certificate, does not specify the nature of the illness or ailment or injury from which the applicant suffers, and also does not indicate that he is unfit to attend Court: MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [12]-[13] per Davies J; Vermuri v Minister for Immigration & Border Protection [2014] FCA 1248 at [5] per Mortimer J; Al Mamun v Minister for Immigration & Citizenship [2011] FCA 1394 at [8] per Gray J (“Al Mamun”);
b)that the certificate was provided late;
c)that the Minister seeks that any refusal of an adjournment lead to an order for dismissal on the basis of r.13.03C(1)(c) of the FCC Rules for non-appearance. That is an order which can be set aside by the applicant on an application properly made for good reason, and in that respect, the applicant is not prejudiced and nor is the Minister prejudiced by having to incur the expense and time delay of an adjournment, short as it may be in the circumstances of this particular case: Al Mamun at [10]-[12] per Gray J; and
d)case and list management issues, bearing in mind that in the Perth registry of this Court, there are two consecutive weeks each month in which migration cases are listed at the rate of two a day, and even with withdrawals it means that there are usually somewhere between six and 10 cases heard by the single Judge of the Court in this Registry each migration hearing week, and that adjournments unnecessarily increase the case load in weeks in which adjourned cases then have to be listed. So from a case management point of view, adjournments of this type, particularly adjournments made late in the piece, are undesirable: MZZZL at [19] per Judge Lucev.
For the above reasons, the Court determines that the interests of justice are served by orders in the following terms:
1. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2. The applicant pay the first respondent’s costs in the sum of $5800 by 21 May 2015.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 23 April 2015
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