Syed and Ors v Minister For Immigration and Anor (No.2)

[2017] FCCA 2419

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED & ORS  v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2419

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment on the ground that applicant has booked ticket to fly to India due to asserted medical condition of wife who is due to give birth – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment given that the applicant could attend the hearing while in India by telephone – adjournment refused.

First Applicant: ISMAIL ZABI AHMED SYED

Second Applicant: MEHARUNNISA MEHARUNNISA

Third Applicant: SYEDA AFIYAH FATIMA SYEDA AFIYAH FATIMA

Fourth Applicant: ALYAN AHMED SYED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1394 of 2016

Judgment of: Judge Manousaridis

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Sydney

Delivered on: 31 July 2017

REPRESENTATION

First applicant by telephone on behalf of the applicants assisted by an interpreter

Solicitors for the First Respondent: Ms C Saunders of DLA Piper Australia by telephone

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1394 of 2016

ISMAIL ZABI AHMED SYED

First Applicant

MEHARUNNISA MEHARUNNISA

Second Applicant

SYEDA AFIYAH FATIMA SYEDA AFIYAH FATIMA

Third Applicant

ALYAN AHMED SYED

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 21 July 2016 this matter was set down for a show cause hearing before me at 2.15 pm on 3 August 2017. At approximately 1.40 pm today, that is to say 31 July 2017, the Court received an email sent by the first applicant (applicant).  It stated that the applicant and his wife are expecting their third child “in this week” and that the wife was suffering from a particular medical condition associated with her current pregnancy.  It is not necessary for me to set out the particular condition. 

2. The applicant continued in his email to state that he has booked a ticket to “fly on 1 August 2017 return on 3 October 2017”.  The email attaches what is described as “a medical letter and a ticket”.  The applicant then requests to “[p]lease look into my matter and allow me for 3 or more months time to extend next hearing date.”  There was attached to the email what appears to be a document recording the terms of a ticket and a document dated 27 July 2017 headed “Medical Certificate” issued by a particular doctor in Hyderabad, India. The certificate certifies that the applicant’s wife has been suffering from a particular condition in her current pregnancy “requiring admission to hospital and urgent and medical obstetric care”. 

3. On receiving the email I arranged for my chambers to list this matter at 4.15 pm today, given that it appears the applicant had booked to leave Australia at approximately midday on 1 August 2017.  The parties appeared by telephone and there was an interpreter who also appeared by telephone and I heard submissions as to whether I should grant the adjournment sought by the applicant.  

4. The Minister submitted there was no reason why the applicant could not appear at the show cause hearing by telephone when he was in India.  I raised this matter with the applicant who was not agreeable to his appearing by telephone from India.  This is a matter that I will return to in a moment. 

5. When considering an application for an adjournment the Court is called upon to exercise its discretion. There are usually two factors that a Court must look into when considering how to exercise its discretion.  One is the reasons why the person seeking to adjourn the matter is not in a position or will not be in a position to attend the hearing.  The second matter is whether there would be any utility in the adjournment being granted.  These two factors are relevant to the application that is before me now. Also relevant is the possibility of the applicant appearing by telephone from India. 

6. I will first turn to the reasons why the applicant says he will be unable to attend the hearing, at least here in Sydney. The basis of this application rests entirely on a medical certificate which refers to the condition of the applicant’s wife.  The certificate is dated 27 July 2017 and it refers to the applicant’s wife “requiring admission to hospital and urgent and medical obstetric care”.  The nature of the urgent medical obstetric care is not revealed in this certificate, at least not to my eyes.  Further, there is no evidence that the applicant’s wife has, in fact, been admitted into a hospital, or has been booked to be admitted into a hospital. 

7. Also the applicant informed me that his two children had been born prematurely and, as I understood him, he said he feared that his current expected child will be born prematurely, although that fear is, to an extent, undermined by the fact that in his email the applicant says that he and his wife are expecting their third child this week.  When I drew this to the applicant’s attention, he referred to his wife’s having to undergo an operation.  These are matters which tend to undermine my confidence that the applicant’s wife is suffering from any medical condition of such urgency so as to require the applicant to attend Hyderabad at this point in time.  I cannot make any findings about that, however, because the evidence is insufficient. 

8. I then turn to the next factor and that is the ability of the applicant to conduct the hearing by telephone while he is in India.  I asked the applicant whether he could conduct the hearing from India by telephone.  He said he could not, but he gave what I considered to be vague reasons.  He said his mind would not be working well having regard to the medical condition of his wife.  The applicant mentioned the fact that he has two children but as he confirmed to me in answer to my question, his two children are currently in India and are being looked after by his mother-in-law.  There would, therefore, be no reason why his having two children could prevent the applicant from conducting or participating in a hearing by telephone. 

9. The other matter which is relevant is the nature of the hearing.  The hearing, at least in procedural terms, is one of simplicity.  The evidence is in short compass and is unlikely to be the subject of any controversy.  It is contained in a court book that the first respondent, the Minister, has filed.  And the only issue will be whether the applicant has an arguable case that the Tribunal made a jurisdictional error for the reasons set out in the application for review.  I am not satisfied that either the applicant’s wife’s medical condition or the applicant’s circumstances would render it unreasonable for the applicant to appear at the show cause hearing by telephone. 

10. The applicant did refer to the time difference between Sydney and Hyderabad.  Ms Saunders who appeared for the Minister referred to there being a four and a half hour difference and, on her calculations, she said that if the matter were heard here at 2.15 pm that would be 9.45 am in Hyderabad.  This time difference can be accommodated by my setting the matter down to be heard later on 3 August 2017. 

11. Now, these two factors that I have identified weigh heavily against my giving the applicant the adjournment he seeks.  In the circumstances I do not think it would be appropriate for me to say much about the merits of the applicant’s claims even though Ms Saunders has made substantial submissions about what the Minister submits is an absence of merit.  Nevertheless utility does come into play even here.  There is nothing to suggest on the material before me that if an adjournment were granted the applicant would be in any better position to present his case than he would be if the matter proceeds to a hearing on Thursday on the basis that the applicant appeared by telephone. 

12. So, for these reasons, I propose to order that the application for an adjournment be dismissed.  All I will otherwise do is confirm that that hearing will remain in place and that the applicant will have leave to appear at that hearing by telephone. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 October 2017