Waheed v Minister for Immigration and Multicultural Affairs
[2025] FCA 48
•5 February 2025
FEDERAL COURT OF AUSTRALIA
Waheed v Minister for Immigration and Multicultural Affairs [2025] FCA 48
Appeal from: Waheed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 300 File number(s): QUD 190 of 2024 Judgment of: COLLIER J Date of judgment: 5 February 2025 Catchwords: PRACTICE AND PROCEDURE – application for extension of time for leave to appeal and leave to appeal decision of the Federal Circuit and Family Court of Australia (Division 2) – informal application for adjournment – whether adjournment ought be granted where authenticity of evidence challenged – adjournment refused - where applicant failed to appear at hearing – whether substantive application should be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1997 (Cth) – application dismissed with costs Legislation: Federal Court of Australia Act 1976 (Cth) s25(2B)(bb)(ii) Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Zetta Jet Pte. Ltd v The Ship "Dragon Pearl" [2018] FCA 878
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 5 February 2025 Counsel for the Applicant: No appearance Solicitor for the First Respondent: Ms C White of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 190 of 2024 BETWEEN: ABDULLAH WAHEED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 11 April 2024 be dismissed.
3.The applicant’s application for adjournment of today’s hearing be refused.
4.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J
Before the Court are two applications.
The substantive application was filed on 11 April 2024. In that application, the applicant sought an extension of time to seek leave to appeal from a decision of a Judge of the Federal Circuit and Family Court of Australia (Division 2) given on 21 March 2024, and leave to appeal that decision.
The second, interlocutory, application was made informally in email correspondence by the applicant for adjournment of today’s proceedings, for “at least 3-4 months”.
It is prudent to first consider whether the substantive proceedings ought be adjourned.
ADJOURNMENT
The substantive application was originally set down for hearing on 11 November 2024.
On 25 October 2024, the applicant wrote to the Court requesting an adjournment of the substantive proceedings due to his mother’s ill health and his resultant mental health issues. That same day the applicant emailed the Court in the following terms:
Dear Sir/Madam
Abdullah Waheed - v - Minister for Immigration, Citizenship and Multicultural Affairs &Anor QUD190/2024
I am writing in relation to my ongoing case in the Federal Court of Australia. As per my conversation with the court, I have been advised to formally request an adjournment by reaching out to all parties involved, providing a reason for the request, and seeking the other party's agreement.
Due to a severe family emergency, I kindly request that the court and the second party grant an adjournment of the case. I will need to travel overseas early next week as my mother's health has significantly deteriorated. She is in critical need of a liver transplant.
To provide a brief background, my mother has been on medication for several years, awaiting a transplant. In 2022, my older brother, who resides in Brisbane, traveled to Pakistan to assist, but unfortunately, his own medical condition (fatty liver) prevented him from being a donor. Now, my mother’s condition has worsened, and while doctors have indicated that the chances of a successful transplant are slim, they have advised that we proceed with the attempt. I feel a deep sense of responsibility to be there for her during this time and do everything possible to support her.
I am currently overwhelmed with worry and stress, and I feel it is crucial that I travel overseas to be with my family during this critical period. It is my sincere hope that the court and the second party will understand the gravity of the situation and consider my request for an adjournment.
I am willing to cover any extra costs that may arise as a result of the adjournment. Please find attached my mother’s medical reports for your reference.
Thank you for your understanding and consideration.
Kind regards,
Abdullah Waheed
On 6 November 2024, the applicant further emailed the court, in the following terms:
Dear honorable Court,
I am still seeking the order of an adjournment of my case due to extreme medical conditions. I kindly ask the court to consider the sensitivity of my circumstances.
I provided all the necessary medical documents on my previous emails to migration team and court
I acknowledge that this matter arose due to human error, and I believe I have a strong case that I am fully prepared to present in person before the honorable judge. However, as I am currently overseas, I am unable to attend at this time. I expect to be back within the next 90 days.
I sincerely appreciate your understanding and consideration in this matter.
Thank you very much.
Best Regards
Abdullah Waheed
Following the provision by the applicant of further documentation to the Minister, including a flight itinerary from Australia to Pakistan and his mother’s medical records, on 7 November 2024 the Minister agreed to the adjournment of the hearing of the substantive application.
The substantive application was subsequently set down for hearing today at 10.15am.
The applicant contacted the Court by email at 2.48pm on Monday, 3 February 2025, seeking further adjournment of the substantive application. His reasons for seeking adjournment were set out in the following email:
Dear Sir/Madam,
QUD190/2024 - Abdullah Waheed v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
I am writing in relation to my ongoing case in the Federal Court of Australia. Unfortunately, I have encountered serious health issues that have prevented me from returning as planned.
After undergoing several medical tests, I was diagnosed with fatty liver disease and possibly early-stage diabetes. This news has been deeply shocking, and I experienced a complete mental breakdown as a result. I am currently under daily medical supervision and have been prescribed medication to address both my physical and mental health concerns.
Due to the severity of my condition, my family sought psychiatric support, and I am undergoing treatment for trauma-related symptoms. At this moment, I am unable to effectively communicate or handle matters related to my case, and I am relying on my wife to assist me in conveying this message.
Given these exceptional circumstances, I respectfully request that the Honourable Court consider adjourning my case for at least a 3-4 months, if not longer, to allow me time to recover.
I appreciate your understanding and consideration in this matter.
Thank you for your attention.
Kind regards,
Abdullah WaheedIn support of his application, the applicant provided evidence in the form of three screenshots. Those screenshots appear to be copies of medical test results performed by “IDC Imaging & Lab Services” in Islamabad, Pakistan. These screenshots all identify the applicant as the patient, and can be summarised as a Serology test report, a Chemistry test report and a Haematology test report, all stated as being performed in Islamabad on 30 December 2024, with reports dated 31 December 2024.
At 9:29am on Tuesday, 4 February 2025, the Federal Court Registry emailed the parties, requesting the applicant to provide further evidence in support of his request for an adjournment, and for the Minister to advise whether he consented to, or opposed, the adjournment.
In response to the request for further evidence, the applicant emailed the Court and stated that the screenshots were his “fatty liver report, which shows that it is not of normal size”. He also again explained that he was experiencing significant mental and physical health issues. He reattached the Chemistry test report, however this time with a large, highlighted circle around the majority of the page.
The Minister opposed the applicant’s request on four grounds. In summary those grounds were:
(a)The proceedings have been on foot since 11 April 2024 and the applicant has known of the final hearing date since 11 November 2024.
(b)The evidence provided by the applicant was insufficient, and the authenticity of the medical reports was questionable. The Minister further submitted that:
(i)there was no evidence of the applicant’s alleged mental health condition(s);
(ii)the screenshots did not confirm a diagnosis of fatty liver disease;
(iii)the applicant’s age was incorrectly stated by the medical records; and
(iv)the medical records stated that the applicant visited the IDC clinic in Islamabad on 30 December 2024. However, the applicant has been in Australia since 8 August 2024. Specifically, the Minister relied on a copy of screenshots from the Department of Home Affairs’ Integrated Client Services Environment (ICSE) records and movement history obtained from the Client Search Portal (CSP) held by the Department in respect of the applicant. ICSE and CSP records showed the applicant as being “onshore”, and the movement history showed his last movement on 8 August 2024 in the direction “arrival”. Ms Xylie Tran, the lawyer for the Minister, deposed in her affidavit dated 5 February 2025 that by examining those records, she believed that the applicant was in Australia and had been onshore in Australia since 8 August 2024.
(c)The applicant’s proposed notice of appeal was without merit insofar as he could not meet the relevant temporal requirement for a grant of his visa application. The Minister relied on their submissions of 15 October 2024 in this respect.
(d)There was no impediment to the applicant appearing remotely at the hearing.
Notwithstanding the correspondence from the applicant, the Court informed the parties at 12.24pm on 4 February 2025 that, based on the material before the Court, today’s hearing would proceed as listed.
At 3.31pm on 4 February 2025 the Court Registry received an email from the applicant in the following terms:
Hi Migration,
Please provide the teams link for the hearing.
Thank you
Kind regards
When Court opened this morning for the hearing there was no appearance by the applicant. No communication from the applicant explaining his want of appearance this morning had been provided to the Court before the hearing. The lawyer for the Minister, Ms Caitlin White of Sparke Helmore Lawyers, informed the Court that her firm had received no further communication from the applicant in respect of the hearing, other than the email of 3.31pm on 4 February 2025. The Court officer called the matter outside, however there was no appearance by the applicant. When my Associate called the mobile phone number of the applicant listed on the Court record, there was no answer.
Consideration
An order that a matter be adjourned in particular circumstances is an exercise of the Court’s discretion: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [5]; Zetta Jet Pte. Ltd v The Ship "Dragon Pearl" [2018] FCA 878 at [38]. As Burley J explained in Zetta Jet at [37], types of matters that should be considered in the context of an adjournment application included the explanation for the adjournment, the detriment to other parties, the detriment to the court and other litigants, and the choices made by the parties as to the claims to be made and how they were to be framed.
In the present case, I was not satisfied that an adjournment ought be granted. In particular, on the basis of the evidence provided by the Minister, I was not persuaded that the material on which the applicant relied in his correspondence was credible, referable to his reasons for the adjournment sought. The evidence of the Minister that the applicant had not departed Australia since August 2024, notwithstanding the applicant’s stated rationale for his application for an adjournment of the hearing originally listed in August 2024 (referable to his family circumstances in Pakistan), is conclusive. I consider that there is no likelihood that medical tests of the applicant could be conducted in Islamabad, in light of the applicant’s apparent ongoing presence in Australia. I further note the applicant in earlier correspondence to the Court stated that his brother had “fatty liver” disease – the fact that the applicant now similarly claims that he has “fatty liver disease”, according to what appear to be doctored test reports from Pakistan, is implausible.
To the extent that the applicant claims mental health and otherwise unidentified physical health issues preventing him from prosecuting his case, there is no evidence in support of that claim before the Court.
The applicant sought an adjournment for several months. As the Minister quite correctly submitted, the substantive application has been before the Court since April 2024, and has already been adjourned once. The applicant has had ample opportunity to prepare his case. It is inappropriate, in my view, for the Court to delay any further the consideration of the applicant’s substantive claims.
For these reasons the application for adjournment was refused.
SUBSTANTIVE APPLICATION
As I noted earlier, there was no appearance by the applicant, and no explanation for his want of appearance notwithstanding that he was plainly aware that the hearing would proceed today.
Section 25 of the Federal Court of Australia Act 1976 (Cth) relevantly provides:
Exercise of appellate jurisdiction
…
(2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:
…
(bb) make an order that an appeal to the Court be dismissed for:
…
(ii) failure of the appellant to attend a hearing relating to the appeal;
In the circumstances I consider it appropriate that the matter be dismissed for failure of the applicant to attend today’s hearing of the substantive application.
COSTS
Ms White for the Minister submitted that costs ought follow the event, and that the Minister sought costs fixed in the amount of $5,000.00. It is appropriate that an order in such terms be made.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:
Dated: 5 February 2025
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