Agu17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 252
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 252
File number(s): SYG 119 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 6 March 2024 Catchwords: MIGRATION – Dismissal for non-appearance after previously adjournment when applicant presented himself to hospital on day of final hearing Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Cases cited: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 1 March 2024
6 March 2024Place: Sydney The Applicant: No appearance Solicitor for the Respondents: Ms G Gutmann ORDERS
SYG 119 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 15 January 2018 is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant must pay the first respondent’s costs and disbursements, of and incidental to the proceedings, fixed in the amount of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before the Court is an application filed on 15 January 2018 pursuant to s 476 of the Migration Act 1958 (Cth) (Act), by which the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 15 December 2017, affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Protection (Class XA) (subclass 866) visa (visa).
BACKGROUND
On 15 January 2018, the proceedings were initially docketed to another Judge of the Court (first primary Judge) following which a Registrar of the Court made orders by consent, listing the matter for a hearing before the first primary Judge on 12 December 2018, together with orders for the preparation of the matter for hearing. Included within those orders was a grant of leave to the applicant to file and serve any amended application on 7 June 2018. The applicant did not file an amended application in accordance with that grant of leave, or at all. The matter was later placed in the central migration docket. It was called over by telephone before a Registrar of the Court on 12 December 2022, on which occasion the applicant appeared with the assistance of an interpreter in the Urdu language.
The matter remained in the central migration docket until when, on 20 March 2023, it was docketed to me, and I made orders listing it for a hearing on 21 September 2023. I granted the applicant further leave to file an amended application on or by 7 August 2023. The applicant and the first respondent were ordered to file submissions before the hearing. The applicant has not filed any additional documents in the case in accordance with those orders, or at all. The hearing date was later changed to 1 March 2024. A listing notice in respect of the change of hearing was sent to the applicant on 15 January 2024 by email to the applicant’s gmail address and by Express Post to the postal address given by the applicant in his originating application.
Adjournment request
At 7:36am on 1 March 2024 my Chambers received email correspondence from a gmail address (other than that which the applicant previously gave). The first respondent was not copied to the first email. The relevant parts of the email were as follows (errors in original):
I am unable to attend todays hearing as I have been in Hospital Emergency with health issues.
I will send through the Doctors letter of Pardon when I receive it but for time being I have attached a picture taken this morning.Please consider my request to adjourn todays hearing to another later date.
(first email).
Attached to the first email were three coloured photographs which can be described as follows:
(a)photograph 1 showed a male person in a hospital bed, with a canular in his arm, and wearing a hospital bracelet;
(b)photograph 2 shows what seems to be an emergency department room with some sort of monitor and somebody’s knee visible in the corner of the image; and
(c)photograph 3 is a “selfie” of the same gentleman as in the first photograph lying on a hospital bed.
Assuming that photographs 1 and 3 attached to the first email depicted the applicant in hospital, there was nothing to indicate to me that those photographs were taken at the day of the hearing.
At or about 8:04am a further email was sent to my Chambers (second email), attaching an additional photograph which depicted a sticker showing the applicant’s name, date of birth and gender (sticker photograph). The second email said:
I have attached proof that I am at westmead hospital.
Thanks
Regards.
The sticker in the photograph attached to the second email also has in capitals the words:
ADM DATE - 01/03/2024
underneath which is written in capitals:
WESTMEAD HOSP
It is open to infer, and I do, that the sticker depicted in the sticker photograph was generated as part of a hospital admissions process on 1 March 2024 upon the applicant having presented himself to Westmead Hospital. That inference accords with the content of the second email.
While there was a sticker visible on the hospital bed in photograph 1 attached to the first email, it was not possible to determine whether it was the same as that which is depicted in the sticker photograph attached to the second email. The first and second emails were forwarded by the Court to the solicitors for the first respondent, together with their respective attached photographs. The second email made no disclosure of why the applicant had presented himself to the hospital that day.
At 9:17am on 1 March 2024 a further email was sent from the second gmail address, again, ex parte (third email). The third email attached a photograph of a medical certificate issued by a registrar at Westmead Hospital emergency department (medical certificate). The content of the medical certificate is as follows (anonymisation added):
This is to certify that [AGU17] has attended Westmead Hospital as an Emergency and will be unfit for work/school from 01-MAR-2024 and will be fit to resume work/school on 4-MAR-2024.
First hearing
At the commencement of the hearing at 10:15am on Friday, 1 March 2024, somewhat unsurprisingly, the applicant was not present in the courtroom. I had the matter called outside out of an abundance of caution and that yielded no appearance either. An interpreter in the Urdu language was present throughout. The solicitor for the first respondent sought that the matter adjourn on the basis that the applicant’s correspondence “tended to indicate” that he was in hospital that day, and on the basis that the costs of the adjournment be reserved.
In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (NAKX) at [5] to [11] his Honour Lindgren J refused to grant an adjournment grounded by medical certificates in the following circumstances:
The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
I refuse the application for an adjournment.
On the basis of the sticker photograph and the medical certificate, it was open to infer that the applicant had only presented himself to the Westmead Hospital emergency department on the day of the first hearing. I placed limited weight on photographs 1, 2 and 3 given that I am unable to positively identity the person in the photographs as being the applicant and, in any event, they bore no dates or other identifying features to corroborate their having been taken on 1 March 2024 at Westmead Hospital.
Neither the medical certificate nor any of the three emails sent on 1 March 2024 from the applicant gave any information as to the basis upon which he presented himself to the hospital on the day of hearing, nor from what ailment he claimed to be suffering. I inferred from the content of the medical certificate that whatever the ailment was, it was not particularly serious, given that the Registrar who had provided the medical certificate only certified the applicant as being unfit for the day of the hearing (and presumably the weekend immediately following). The medical certificate expressly said that the applicant would be fit to resume work/school on (Monday) 4 March 2024.
It will be observed that nothing in the certificate suggested that the applicant was, in fact, unfit to attend Court on the day of the hearing, or at all. It will also be observed that, unlike in NAKX where the certificates at least provided details of the conditions from which the respective applicants were said to be suffering, there was no such detail in the certificate issued for the applicant at the day of the hearing.
On balance, noting that the Minister was agreeable to a brief adjournment and given that the applicant was said to be fit at least for work and school from the following Monday, the Court adjourned the matter for final hearing in person on 6 March 2024 at 2:15pm, and made orders (March Orders) requiring the Minister’s solicitors to serve the applicant with a sealed copy of the March Orders by 4:00pm on 1 March 2024. A sealed copy of the March Orders was sent by the Court to the parties.
In accordance with the March Orders, prior to 4:00pm on 1 March 2024, the Minister’s solicitors served a sealed copy of the orders to both the first gmail address and the second gmail address. The email, together with the letter which was attached to it, which also indicated that it was sent to the applicant at the postal address for service provided in the 2018 Notice of Address for Service, indicated within the body of the letter that the matter was listed for a final hearing this afternoon at 2:15pm, including the place of hearing. The letter went on to inform the applicant that if he did not appear at the hearing today, the Minister may apply to have the matter dismissed for non-appearance, pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), together with an application for costs.
Second hearing
The second hearing commenced at 2:15pm on 4 March 2024, at which time the applicant was not present. I had the matter called outside which again yielded no appearance by, or for, the applicant. The Court has not received any further correspondence from the applicant since the emails sent last week seeking the adjournment. No further adjournment request has been received, nor has any additional medical certification been provided to indicate why it is that the applicant has not attended today.
In all of the above-mentioned circumstances, I am satisfied that the applicant is aware of today’s hearing, not only by virtue of the March Orders, but by the compliance of the Minister’s solicitors with the March Orders (see [17] above). I am further satisfied that the applicant has been told of the potential consequences of his non-appearance today, including that an application for costs may be made. I am satisfied that the applicant is aware of today’s hearing, and has, for whatever reason, elected not to attend.
CONCLUSION
In all of those circumstances, I am prepared to accede to the application made for the first respondent that the proceedings be dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
I am satisfied that costs ought follow the event of the dismissal, and that the amount sought, $5,600, is reasonable, in particular having regard to the adjournment on the last occasion. The amount sought is even more reasonable in circumstances where the matter has now had, in essence, two final hearing fixtures. To the extent that costs of the adjournment were reserved at the first hearing, the solicitor for the Minister confirmed that the sum of $5,600 includes those reserved costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 6 March 2024
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