Alq17 v Minister for Immigration

[2018] FCCA 2922

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2922

Catchwords:
MIGRATION – Visa – protection visa – non-attendance by applicant – email request for adjournment – medical certificate – inadequacy of medical certificate – adjournment refused – application dismissed.

Legislation:

Federal Circuit Court Act 1999 (Cth), ss.88F and 88G(1)(b) and (c)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Migration Act 1958 (Cth)

Cases cited:

NALM v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17
MZZGY v The Minister for Immigration and Border Protection [2014] FCA 488

Applicant: ALQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 37 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 June 2018

Date of Last Submission: 4 June 2018

Delivered at: Adelaide

Delivered on: 4 June 2018

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

UPON NOTING correspondence from the applicant seeking an administrative adjournment due to medical reasons was forwarded to chambers by the Australian Government Solicitors.

THE COURT ORDERS THAT:

1. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application filed 3 February 2017 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).

3. Pursuant to ss.88F and 88G(1)(b) and (c) of the Federal Circuit Court of Australia Act 1999 (Cth), and to prevent prejudice to the proper administration of justice and to protect the safety of the applicant, publication of any of the contents of Exhibits R1, R2 and R3 is prohibited.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 37 of 2017

ALQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from Transcript)

1. This matter was listed for final hearing today and the applicant has not attended.  This matter was previously the subject of an adjournment.  On the last occasion, when it was also listed for final hearing on 4 April, the first respondent provided the Court with an email from the applicant together with a bundle of materials forwarded to the first respondent which related to the applicant’s request for an adjournment at the final hearing because his wife had recently had a baby and he did not have anyone to help her to look after the child and his wife had not yet recovered.  The materials provided on that occasion suggested that it did appear that his wife had recently had a baby.  I have marked those materials Exhibit R1.  Those materials suggest that the applicant, or at least his wife, gave birth in Victoria.  This morning at about 1.46am the applicant sent an email to the solicitor for the first respondent indicating that:

   “I am due to appear in the Federal Circuit Court of Australia at Adelaide at 12 noon on 4 June 2018.  I am unable to attend the court on this date because I slipped down from bath tub and got major injury in between legs.  I attached a medical certificate from GP. 

   I ask court to adjourn my case to another date.  Hopefully, I will be able to attend the court after a couple of days.  So, please give me any other date except this. 

   Thank you.”

2. As I have said, that email was sent in the early hours of this morning.  It was accompanied by a medical certificate dated 3 June 2018, which simply says:

   “This is to certify that

   Mr (name deleted) has a medical condition and will be unfit for work from 3/6/2018 to 5/6/2018 inclusive.”

   I have marked these materials Exhibit R2.

3. That medical certificate is provided by Dr Nazrul Islam, whose provider number is 4724485L.  As has been pointed out to me by the counsel for the first respondent, the medical certificate is from a doctor whose rooms are located in Werribee, Victoria, and it bears the postcode 3030, which appears to be a Victorian postcode.  On one view, even had the applicant not had the alleged fall that he has referred to in his correspondence, it does not appear that he had made any real effort to get himself to South Australia in order to attend at the hearing today, and I note there was no request for a telephone attendance. 

4. I was provided with a further email by the counsel for the first respondent.  I have marked that document Exhibit R3.  This was an email from the applicant to an employee of the solicitor of the first respondent, which stated in part:

   “Good morning

   I’m happy to attend the hearing on phone call thanks for that.”

5. That was a response to an earlier email sent by the solicitor for the first respondent indicating that they were instructed to oppose the adjournment application. 

6. Turning to the application by the first respondent that these proceedings be dismissed in default of appearance, I think that application has merit for three reasons. 

7. First, I do not regard the materials provided by the applicant as adequately explaining his failure to attend today. 

8. Secondly, the timing of the provision of the medical certificate when considered in light of his previous reasons for an adjournment and the fact that he currently appears to be in Victoria does create some doubt as to whether he had ever made proper arrangements to attend in Adelaide for the purpose of this hearing.  I give that less weight than the first consideration I have mentioned. 

9. Thirdly, I have considered the basis upon which this application is made and the decision record of the Administrative Appeals Tribunal.  I take the view that, considering the matter objectively, the application itself seems to have little prospect of success.  I regard that as a matter to which I can give some weight, but as with the second consideration, I give it less weight than the first consideration. 

10. There have been a number of authorities which have dealt with the question of the adequacy of medical certificates or an explanation for a failure to attend.  In this matter, whilst the email sent by the applicant to the solicitor for the first respondent does stipulate a reason for his not being able to attend and that reason seeks to explain the conclusion reached in the medical certificate, it does not, in my view, adequately explain why it is that he would not be able to attend to present his argument in support of his application.

11. Secondly, the medical certificate simply says that he will be unfit for work for a stipulated period of time.  It does not explain the nature of his medical condition.  It does not provide a specific diagnosis, nor does it explain why it is that in contrast to an ability to work he would not be able to attend to make submissions in relation to this hearing.  I have considered the decision of Davies J in MZZGY v The Minister for Immigration and Border Protection[1].  I note that his Honour, when considering a medical certificate worded similarly to the certificate in this matter, made the following observation at paragraph 13:

    “These documents were wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition, nor explain why it would prevent the appellant from attending and participating effectively in the court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the court hearing.  Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment.  It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by short notice.  I accordingly refuse the adjournment application and proceeded to hear the appeal on its merits.”

    [1] [2014] FCA 488 at [12]-[13].

12. I note that the decision of the Full Court of the Federal Court in the matter of NALM v The Minister for Immigration and Multicultural and Indigenous Affairs[2] made similar observations.

    [2] [2004] FCAFC 17.

13. In that regard, I note that the emails sent through by the applicant do not indicate when it was that he sustained the alleged injury by falling in the bath and whether he had made any plans to attend in Adelaide for the purpose of this hearing. I further note that no proper application was made for him to attend at this hearing by way of telephone link. For those reasons, I have concluded that it is appropriate to decline to further adjourn these proceedings and to dismiss the application in default of appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

14. I make the orders to be found at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  16 October 2018