Syed v Minister for Immigration
[2018] FCCA 2304
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SYED v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2304 |
| 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. |
| Applicant: | MUSTAFA SYED |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 13 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondents: | Ms K Hooper of Minter Ellison Lawyers |
ORDERS
The application for an adjournment is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 13 of 2017
| MUSTAFA SYED |
Applicant
And
| MINISTER FOR IMMIGATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Today there was set down before me the hearing of an application for judicial review filed by the applicant on 4 January 2017 in relation to a decision made by the second respondent, the Administrative Appeals Tribunal, on 3 January 2017.
The matter came before a Registrar on a first Court date on 20 April 2017. On that date the Registrar made certain directions for the further conduct of the matter, those directions including permitting the applicant to file a further amended application as well as filing evidence and written submissions. The Registrar also made an order that the matter be set down for hearing before me at 10.15 am on 3 August 2018.
Before I came on the bench this morning, the Registry communicated to my associate an email - and I will mark that email as exhibit A on the application for an adjournment – from the applicant in which he stated the following:
Myself Syed Mustafa I was in India for three months as my mother was very sick. I went to visit her and I arrived in Australia on 31 July 2018 – on 31/07/2018. Since then even I’m not feeling well. My mother she is again hospitalised today. With due respect I’m afraid I couldn’t attend tomorrow – that is, 3 August hearing. Please please extend my hearing. Thanks.
Before I came on the bench in the expectation that the applicant would not attend today’s hearing, as he indicated in his email he would not, I asked my associate to provide a copy of that email to Ms Hooper who is the lawyer for the Minister appearing before me today. When the matter was brought on, the applicant appeared in person. He has applied for the matter to be adjourned. He said he was not in a position to proceed with today’s hearing. As best as I can tell, the reason he gave was that he suffers from depression or from some other mental ailment which he says is due to the illness of his mother.
There is no evidence given by the applicant of the illness from which his mother suffers. I am prepared to accept that his mother does suffer from some sort of illness, and if that is the case, I extend my sympathies to his mother. In any event, I asked the applicant how much time he wanted, and he said two to three weeks. He said that by that stage he hoped to be in a better mental state. I confirmed with the applicant that he was aware that he filed this proceeding on 4 January 2017, and that on 20 April 2017 directions were made by the Registrar for the further conduct of the proceeding, including the applicant’s being permitted to file an amended application, evidence, and submissions. I also said to the applicant, and he agreed, that it appeared to me that he had done nothing in the proceeding. When I asked him why that was the case, the answer he gave was to the effect that his case would not succeed.
Ms Hooper, the lawyer for the first respondent (Minister), opposes the application for an adjournment. She submits there is no evidence not only of the applicant’s mother’s condition but, more pertinently, of the applicant’s mental condition. She submitted there is nothing to suggest the applicant cannot participate in today’s hearing. Ms Hooper also submitted that the applicant had plenty of time to file and prepare for the hearing today. Ms Hooper drew my attention to the fact that the application for an adjournment was made late and had it been made earlier then at the very least the Court and the Minister could have taken some action to avoid the cost which the Minister will necessarily incur for having prepared and made the Minister’s legal representatives appear in court at the hearing today.
When the Court is faced with an application for an adjournment of a hearing, particularly when that application is made on the day of the hearing, the Court takes into account a number of considerations. The overall question is whether it is in the interests of the administration of justice that the matter be adjourned. In determining that question the Court looks to a number of factors. One is whether there would be any utility, at least from the perspective of the party applying for the adjournment, to grant the adjournment. If there is no utility, then there would be no point in adjourning the matter. The next question the court looks at is the position of the party who opposes the adjournment. The question there is what prejudice will the party suffer if an adjournment is granted. Another relevant factor is why the party seeking the adjournment is not in a position to proceed at the appointed time.
Turning now to the circumstances of the application that is before me. The only explanation that is given for the applicant not being in a position to proceed with today’s hearing is what is asserted to be the mental state of the applicant. That is not supported by any evidence. I am entitled, I think, to take into account my own perceptions and observations of the applicant even though I am not a qualified medical practitioner. The applicant, of course, as one would expect, has displayed a degree of nervousness. That is natural not only for unrepresented litigants but even for lawyers to experience when they are before a court. Apart from a display of nervousness, however, there is nothing apparent to my senses to indicate the applicant is in no state to meaningfully participate in today’s hearing. So I do not accept that the applicant is not in a position to proceed today on account of his mental state.
There is no other adequate explanation why the applicant is not in a position to proceed with today’s hearing. He has had plenty of time to prepare for this application and it appears from that that the applicant has proceeded on the basis that his case is hopeless or at least not a strong one. That is a judgment that the applicant has made, and whether that is correct is a matter to be determined at the time of the hearing of his claims.
The next question, then, is utility. What will happen if I grant the two or three week adjournment? In my opinion, there is nothing to indicate anything will be different. The adjournment is sought on the say-so of the applicant that he hopes that he will be in a better mental state when the matter is next before the court in two to three weeks. That is not a basis on which I can be confident that the applicant will be in any better position to proceed with the hearing in two to three weeks’ time if I were to grant an adjournment.
Finally, there is the broader issue of this court’s management of cases. This court has a docket system. A judge seeks to manage his docket on the basis that hearings will be conducted at the time and place appointed. That is a reasonable expectation, particularly in migration cases where there is a large delay between a matter being set down for hearing and the day of the hearing. It is in the interests of administration of justice that adjournments not be granted lightly.
In my opinion, however, this last consideration is not important in the circumstances of the case before me. What is important is that the applicant has not demonstrated that he is unable to proceed with the hearing today, he has been unable to demonstrate that he has not been in a position to prepare for today’s hearing, and he has not demonstrated that if an adjournment were granted he would be in any better position to proceed with his application. For those reasons the application for an adjournment will be dismissed and I will make an order to that effect now.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 20 August 2018
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