Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3638

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3638

File number(s):

SYG 1813 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

10 December 2020

Catchwords:

PRACTICE AND PROCEDURE – application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – whether prejudice to first respondent if adjournment granted – application for adjournment dismissed.

Legislation:

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) Sch 2, cl 457.223(4)

Number of paragraphs:

13

Date of hearing:

10 December 2020

Place:

Sydney

First Applicant:

Appeared in person, by telephone, assisted by an interpreter

Second Applicant:

Appeared in person, by telephone, assisted by an interpreter

Solicitor for the First Respondent:

Mr A Moss of Clayton Utz, by telephone

ORDERS

SYG 1813 of 2017

BETWEEN:

PIRTHI PAL SINGH

First Applicant

AMANDEEP KAUR

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	10 DECEMBER 2020

THE COURT ORDERS THAT:

1.The applicants’ application for an adjournment is dismissed.

REASONS FOR JUDGMENT
(Revised from Transcript)

1. There was listed before me today the hearing of an application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent not to grant the applicants a Temporary Business Entry (Class UC) visa (457 visa).

2. The parties were notified of this listing on 30 September 2020. On 25 November 2020 the Court received an email from the first applicant in which he requested that the hearing that had been set down before me today be adjourned.  The reasons given in that email included the first applicant’s being “stuck in India and my wife and daughter are in Australia now”. The first applicant said he was going through a very tough time, his father is extremely sick and is suffering from multiple disorders, and the first applicant went to India to look after his father. The first applicant also said that he is suffering from depression and prolonged separation from his family.  He said that he is not “in condition to attend the court hearing and unable to defend my case”.  He said he wanted to “personally attend the hearing and defend my case”. That email was brought to my attention, and, at my direction, my associate informed the parties that any application for an adjournment was to be made at the hearing of the matter.

3. On 7 December 2020, the Court received another email from the first applicant. That email stated that there was a medical certificate attached, together with blood test reports, and that the certificate stated that the first applicant is suffering from dengue, depression, and anxiety disorders.  The first applicant said that he is not in a condition to attend the hearing, and his doctor advised him to take a complete rest.  There is attached to that email what purports to be a medical certificate signed or given by a Dr Harpreet Singh Dhoot, as well as blood tests. I will mark those emails, together with the purported attached documents, as exhibit A on the application for an adjournment. Again, that email was referred to me and I directed that the parties be informed that an application for an adjournment be made at the hearing before me today.

4. At the hearing before me the first and second applicants appeared by telephone, and they have been assisted by an interpreter, and an application was made for an adjournment.  In broad terms, although I will return to the particulars in a moment, the applicants submit that due to the first applicant’s ill health, the first applicant is not in a position to conduct the hearing, and they both asked for further time in order to be in a position to better prepare for the hearing.  The first respondent, the Minister, opposes the application for an adjournment.

5. I then turn to the principles that should guide me when considering an application for an adjournment.  Whether an adjournment should be granted in any given case is a matter for the discretion of the Court.  The ultimate question is whether the Court is satisfied that it is in the interests of justice that an adjournment should be granted. That question, however, is answered by reference to well accepted factors, and there are three that are relevant. The first is whether there is some adequate reason why the hearing cannot proceed on the day the matter has been set down for hearing.  The second question is whether, if an adjournment were granted, there would be any benefit to the party seeking the adjournment if it were adjourned, and, corresponding with that question also is whether there would be any prejudice to the party seeking the adjournment if an adjournment is not granted. The third factor looks at the position of the party that opposes the application for an adjournment, and the question there is what prejudice, if any, the party opposing the application for an adjournment would suffer if an adjournment is granted. In some cases, it is also relevant to take account of the impact an adjournment might have to the listing practices of the Court in question.  That is not a matter that will be relevant to this application.

6. I then turn to why the applicants say they are not ready to proceed today.  They rely on a medical certificate by what appears to be a medical practitioner which refers to the poor health of the first applicant.  It is apparent, from what I can hear, that the first applicant is coughing and is carrying some illness.  The first applicant has stated that he is not able to speak, but the transcript, if anyone wishes to obtain it, will reveal that the first applicant has been able to speak.  I say that because Mr Moss, for the Minister, makes a submission that the medical certificate says nothing about the extent to which the illness recorded on it hampers or can prevent the first applicant from participating in the hearing. Also relevant is that the medical certificate only applies to the first applicant, not to the second applicant, and it has not been suggested that the second applicant is not in a position to conduct the hearing, at least on behalf of herself.

7. Also relevant is not so much the first applicant’s ability to participate in today’s hearing, but what the applicants have done in the proceeding to date.  The applicants have filed written submissions, admittedly this was done a year ago, but, in any event, they have put in writing what it is they wish to say. I asked the first applicant what it is that he believed he would be able to do in terms of presenting his case if I were to grant an adjournment, that he is not in a position today to do.  A number of answers were given, but they were all to the same effect, and they were that he is not in a position to participate in a hearing, and also he wants more time to be in a position to present his case in a better way. 

8. I am not satisfied that the first applicant is not in a position to proceed with the hearing today. That, by itself, however, is far from decisive. The more important factor is whether, if I were to grant an adjournment, there is some tangible possibility that the applicants would be in a better position than they would be if the hearing proceeded today; and that requires consideration of what it is the applicants intend to do if more time is given to them. Apart from saying that they wanted more time to present their case better, the first applicant referred in a general way to his putting further evidence about the financial position of the company, its growth and size. That is a reference to the company whom the applicants identified as the first applicant’s sponsoring employer. The difficulty with that is that even if the applicants were to obtain further evidence about the financial and economic position of that company, it is difficult to see how it could be relevant to the issue that arises in their application to this Court in relation to the Tribunal’s decision affirming the decision not to grant a 457 visa. That refusal was based on a finding that the first applicant did not meet the criterion specified by clause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth), and that requirement is that there be “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act.”

9. The second applicant also made some general comments about alleged failures by the applicant’s migration agent in the manner in which he looked after their affairs.  These complaints appear to relate to the processes by which the sponsoring employer sought to be an approved sponsor, or about the processes the sponsored employer sought nomination of the occupation in question.

10. The upshot then of this part of my reasons is that I am not satisfied that granting an adjournment offers the applicants any tangible prospect of their position being improved.

11. I then turn to the prejudice that the Minister might suffer if an adjournment were granted.  At the very least there will be costs thrown away.  That can be remedied with an order for costs.  It is not apparent that the applicants would be able to pay the Minister’s costs thrown away.  I did not ask them whether they could afford it, and for that reason I am not going to take into account any prejudice the Minister might face by having costs thrown away.

12. To sum up, I am not satisfied that there will be any tangible benefit in an adjournment being granted.  That is not to say that I have no sympathy for the plight in which the applicants find themselves, but, as a judge, I do not have the dispensing power to give applicants who bring proceedings in this Court more time for reasons that have no utility to the manner in which the case ought to be conducted.

13. For those reasons, I am not satisfied that it is in the interests of justice to grant the adjournment.  However, I will grant what was suggested as an option by Mr Moss, sensibly so, and that is that I will proceed to hear the case, and when the hearing concludes, I will make a direction permitting the applicants three weeks to file and serve any further material they wish to file in support of their case. To save the Minister incurring unnecessary costs, I will make that direction on the basis that I will consider myself at liberty to give my judgment without further hearing from the parties, unless I form the view that the material reveals a matter which might adversely affect the Minister’s position.  I think, as a matter of fairness, I will also reserve to the applicants, if they so wish, to ask for a hearing on any additional matters that they find.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       30 March 2021