Zubair v Minister for Immigration and Border Protection
[2017] FCCA 2905
•23 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZUBAIR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2905 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – application for adjournment on medical grounds – whether medical certificate sufficient – adjournment refused – dismissal for non-appearance. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3,42 Migration Act 1958 (Cth), Part 5, Division 5, ss.359A, 360, 360A, 476 Migration Regulations 1994 (Cth), reg.4.21, Sch.2, cl.187.233 |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 |
| Applicant: | MUHAMMAD ZUBAIR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 235 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 November 2017 |
| Date of Last Submission: | 23 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 23 November 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr E Solana |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (made on 23 November 2017)
The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).
Any application by the applicant for an adjournment of today’s hearing is dismissed.
The applicant pay the first respondent’s costs, in the sum of $5800, by 23 December 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 235 of 2016
| MUHAMMAD ZUBAIR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extemporaneously and later edited)
Before the Court today is an application for judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”) made on 6 May 2016, in which the Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration and Border and Protection (“Minister”), to not grant the applicant a Regional Employer Nomination (Class RN) (Subclass 187) visa (“REN Visa”).
There is before the Court, a court book (“CB”), in which the Tribunal Decision appears: CB 144-146.
Earlier today, the applicant contacted Chambers and appeared to make a request for an adjournment on the basis of his medical condition. The applicant was advised to provide a medical certificate and the Minister’s solicitors were advised by Chambers of what had transpired. A medical certificate has been provided which, on its face, concerns the applicant and is from a medical officer in the Emergency Department at Royal Perth Hospital.
The medical certificate reads as follows:
Dear GP Nil,
Muhammad Zubair presented to the Emergency Department at ROYAL PERTH HOSPITAL on 22 Nov 2017 at 22:37. The presenting problem was viral tonsillitis..
The diagnosis was +ENT & MOUTH TONSILLITIS.
The patient presented with a 2 day history of sore throat, diaphoresis, headache and sinus pain. On exam tonsils mildly swollen, no exudate seen. Pt was tachicardic on arrival, ECG showed sinus tachi. We treated him with IV fluids and analgesia. Monospot was negative. Obs stabilised. Discharge back to community. Please follow up in 1/52 to ensure resolution of symptoms.
The Minister’s lawyers do not consent to the adjournment sought by the applicant.
The Court notes that the applicant is not in attendance at the hearing, the matter having been called outside. The Court is aware that the applicant was advised by Chambers that in the absence of consent to the adjournment by the Minister today’s hearing would proceed.
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No.2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
The medical certificate in this case does not say that the applicant is unfit to do anything, let alone attend Court. Although it does indicate that last evening he had tonsillitis, it says nothing about the applicant’s ability to attend Court today and merely suggests that the matter be followed up in a week to ensure the resolution of symptoms. There is no evidence that the applicant is unfit to attend Court, or to make any submissions in support of his application to judicially review the Tribunal Decision.
In the circumstances, the medical certificate is not a sufficient basis for an adjournment.
The Court notes that the Minister also opposes the adjournment on the basis that the application for judicial review lacks merit and the Court will return to that issue.
Any adjournment application in this Court must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality:
Sandeep v The Minister for Immigration [2016] FCCA 3339 at [23] per Judge Lucev, and the cases there cited.
The Court must also take into account, when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources;
and the Court refers to Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ, and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The Court also 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 and Another [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
Adjourning this matter would delay any further hearing of the matter and further protract the matter, contrary to the objects of the FCCA Act and FCC Rules. The Court notes that this is an application filed in May 2016, which, in June 2016 was, pursuant to an order of a Registrar, listed for hearing originally on 21 August 2017, which was later re-listed to today. Furthermore, there would be additional expense, not only to the Minister, and thereby prejudice to the Minister, if the matter were to be adjourned and relisted on another day, but also the wastage of public resources and expense to the taxpayer by having to have the Court sit again.
The Court also notes that, as a matter of case management, there are presently several hundred cases listed in this Registry before the Court as presently constituted in migration judicial review and several dozen more cases awaiting listings, and that there are, in fact, migration listings presently listed out to as far as April 2021.
In terms of merit, the Court considers that the question of the merit of the application is something to be considered in determining whether or not to grant an adjournment, noting that the factors that the Court has referred to above do not weigh in favour of an adjournment. The Court notes the grounds as set out in the judicial review application, which are as follows:
1. The Administrative Appeals Tribunal decision to affirm the decision not to grant the applicant a Regional Employer Nomination (Permanent)(Class RN) visa is not a 'privative clause decision' within the meaning given by subsection 474 (2) of the Migration Act 1958
2. The Applicant believes that grounds exist to challenge the decision in particular the criteria that cl. 187.233 has not been met.
3. I believe that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success.
In this matter, the Tribunal affirmed the Delegate’s Decision on the basis that:
a)the Delegate refused to grant the nomination application lodged by the sponsor: CB 146 at [12]; and
b)the applicant’s evidence that the sponsor had gone into liquidation and that he was no longer working for the sponsor: CB 146 at [13].
The grounds of the judicial review application are not particularised as to how the applicant might have satisfied the necessary criteria in cl.187.233 of sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), in circumstances where he had no approved nomination. There is simply no evidence before the Court that the applicant was the subject of an approved nomination, and the Tribunal’s finding in this regard was the only finding that appears to have been open to it.
The Court also notes that the information that the Delegate used to refuse the grant of the nomination was not required to be formally put to the applicant for the purposes of the Tribunal review, because the Delegate’s Decision was attached to the application for review to the Tribunal, and, accordingly, the information can be taken to have been given to the Tribunal pursuant to s.359A(4)(b) of the Migration Act.
The Court also notes that, insofar as the procedural fairness obligations under Pt.5, Div. 5 of the Migration Act are concerned, the applicant was invited to a hearing before the Tribunal, in accordance with the requirements of ss.360 and 360A of the Migration Act, to give evidence and present arguments, which he attended, and that the notice period therefore complied with reg.4.21(4) of the Migration Regulations. There was no denial of procedural fairness in the sense referred to by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592, if, indeed, that is alleged by the grounds of review.
Finally, the Court notes that, even if there had been a breach of procedural fairness, it could not have had any impact on the outcome of the proceedings, in circumstances where, there being no nomination, there was no other finding open to the Tribunal, as the Court has already observed.
In all the above circumstances, the judicial review application therefore lacks merit and has no prospect of success, and the fact that it has no prospect of success is a further reason as to why there ought to be a refusal of an adjournment in these proceedings.
There is no appearance by the applicant, the matter having been called outside at the beginning of the hearing today. In the circumstances, the Court has the discretion, which it proposes to exercise, to dismiss the matter, pursuant to r.13.03C(1)(c) of the FCC Rules.
That will provide the applicant the opportunity, if he believes there’s a basis to do so, to set aside the order for dismissal, pursuant to r.16.05(2)(a) of the FCC Rules, which provides the Court a discretion to set aside an order made in the absence of a party, taking into account a number of matters, including the merit of an application.
The Court orders that:
a)the application be dismissed pursuant to r.13.03C(1)(c) of the FCC Rules (Cth);
b)any application by the applicant for an adjournment of today’s hearing is dismissed; and
c)the applicant pay the first respondent’s costs, in the sum of $5800, by 23 December 2017.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 November 2017
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