BQD17 v Minister for Immigration

[2018] FCCA 808

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 808

Catchwords:
MIGRATION – Application for judicial review of refusal to grant protection (subclass 866 visa) – application by the Applicant for adjournment of final hearing on the basis that the Applicant is suffering from a medical condition – provision of medical certificate certifying that Applicant is unfit for work – held medical certificate inadequate in satisfying the Court that Applicant is unfit to travel to the Court and participate effectively in the final hearing – application for adjournment refused – application for judicial review dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 44.12

Cases cited:

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant: BQD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 767 of 2017

Judgment of: Judge Jones

Hearing date: 20 March 2018

Date of Last Submission: 20 March 2018

Delivered at: Melbourne

Delivered on: 20 March 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Counsel for the Respondents: Ms Stone of DLA Piper Australia

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for judicial review filed on 13 April 2017 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $4,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 767 of 2017

BQD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and Background

1. This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 22 March 2017, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 24 September 2015 refusing to grant the Applicant a Protection (subclass 866) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”) 238-250.

2. The material before the Court is the Applicant’s application for judicial review filed on 13 April 2017, the affidavit of the Applicant filed on

   
   

   13 April 2017, the Minister’s Response filed on 11 May 2015, the Minister’s Outline of Submissions filed on 20 February 2018 and the Court Book.

3. The matter was listed for a show cause hearing on 6 March 2018, following an application by the Minister pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

4. At the show cause hearing, the Applicant was self-represented and assisted by an interpreter in the English and Sinhalese languages.  It soon became evident that the Applicant did not have a copy of the Court Book. I am satisfied that the Court Book was sent by the Minister to the Applicant at the Applicant’s residential address by correspondence dated 8 November 2017 (Exhibit FR1).  It appeared to the Court that at that time the Applicant had instructed a solicitor who was either a principal or solicitor of the law firm Warna Legal at 1/44 King Street, Dandenong, who filed a Notice of Address for Service on behalf of the Applicant on 24 November 2017.  This Notice of Address for Service was unusual as the address for service was identified as the law firm’s business address, namely, 1/44 King Street, Dandenong, however, it was signed by the Applicant.  In other words, Warna Legal appeared to be acting for the Applicant as a mail service.

5. At the show cause hearing, Counsel for the Minister informed the Court that she had recently contacted the relevant solicitor of Warna Legal who had informed her that he no longer acted for the Applicant.   In my view, the practice adopted by Warna Legal in acting as a mail service for the Applicant is improper and may well breach the legal practice rules under the relevant statute.  In any event, as the Applicant was self-represented and had no command of English, I decided, as a matter of procedural fairness, that the show cause hearing should not proceed that day and that the Applicant should be given another opportunity to receive the Court Book – that is, to be sent another copy of the Court Book.  It may well have been the case that the Applicant’s solicitor at Warna Legal retained the Court Book sent by the Minister, instead of the Applicant, even though it was evident from Exhibit FR1 that the sealed copy of the Court Book was sent to the Applicant’s residential address.

6. I therefore made orders dismissing the Minister’s application for a show cause hearing, only on the basis that I made a decision that the matter should proceed to final hearing today, 20 March 2018. I also made an order that on or before 13 March 2018, the Minister serve a copy of the Court book on the Applicant at the Applicant’s residential address.  I informed the Applicant at the show cause hearing that if he had not received the Court Book by Monday, 19 March 2018, he was to inform either the Court or the Minister’s legal representatives.

7. On 19 March 2018, my chambers were notified by a staff member of the Court’s registry that copies of a medical certificate and a prescription issued for the Applicant had been received by the registry by facsimile at around 11am that morning.  The medical certificate was issued by a Dr Baharam Bahrami Nejad, dated 17 March 2018 and presumably signed by that general practitioner.  Relevantly, the medical certificate certified that “[The Applicant] has a medical condition and will be unfit for work from 19/03/2018 to 20/032018 inclusive”.

8. The prescription that was attached to the medical certificate was a prescription for Voltaren tablets.  No explanation from the Applicant or his treating medical practitioner accompanied the documents. I instructed my associate to email the Applicant, at the email address provided on a second Notice of Address for Service filed by the Applicant on 16 March 2018, informing him that the final hearing would proceed today.  A copy of this email, together with the medical certificate and prescription, was sent to the Minister’s solicitors.

9. At 4.30pm on 19 March 2018, the Applicant sent, again by facsimile, to the registry of this Court the following correspondence dated

   
   

   19 March 2018 which was received by the registry at 5.14pm.  The correspondence read as follows:

   This is to notify you that I am not able to attend for the hearing tomorrow at 10.00am as I am having a back pain and currently under medication and therefore I am unfit to attend for the hearing. 

   Herewith I am attaching the Medical Certificate and Prescriptions Issued for your reference. 

   Kindly consider and grant an extension for the hearing. 

   Do not hesitate to contact me on [Applicant’s email address].

10. The contact information provided in the correspondence is the Applicant’s email address specified on the Notice of Address for Service filed on 16 March 2018.  The correspondence concludes with the Applicant’s name and a signature, which I presume to be the Applicant’s signature.

11. Counsel for the Minister has provided the Court with a copy of a chain of email correspondence (Exhibit FR2).  Relevantly, the correspondence shows an email sent from my chambers to the Applicant and the Minister on 19 March 2018 at 2.05pm and a reply email from Ms Michelle Stone (“Ms Stone”), Senior Associate of the Minister’s solicitors, sent to my chambers and the Applicant at 2.55pm the same day.  Ms Stone’s email read as follows:

    Dear Sir and Associate

    To the extent that an adjournment of tomorrow’s hearing is sought, this is opposed by the first respondent. 

    [The Applicant], please be advised that if you do not attend tomorrow, and an adjournment is not granted, I will be seeking to have your application dismissed with costs on the basis of your non-appearance.

12. It is clear from the Applicant’s subsequent correspondence sent by facsimile to the Court at 4.30pm on 19 March 2018 that the Applicant was seeking an adjournment on the basis of the medical certificate and prescription the Applicant provided to the Court.  The Minister opposes the adjournment and I refuse the adjournment for the following reasons:

    a)the Applicant knew of the adjourned final hearing date today.  The Applicant was present in Court on 6 March 2018 when I announced the date and time of the adjourned final hearing date and was also notified by email; and

    b)the medical certificate that the Applicant relies on is wholly deficient for the purpose of satisfying the Court that the Applicant cannot travel to Court and attend and/or participate in today’s hearing.

13. I note that in his correspondence sent to the Court by facsimile at 4.30pm on 19 March 2018, the Applicant refers to the fact that he has back pain and that he cannot attend the hearing.  However, this is not probative evidence of a satisfactory medical condition.  The medical certificate itself is deficient in satisfying the Court that the Applicant cannot travel to Court and attend the hearing because it does not specify the medical condition that the Applicant is suffering from.  The medical certificate simply says that the Applicant is suffering from a medical condition and only says that the Applicant is unfit for work.  It does not address the critical question of whether the Applicant is fit to travel to the Court and to attend and participate in the hearing today.

14. I rely on a decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”) and the observations made by his Honour in relation to the adequacy of medical certificates provided to the Court (NAKX at [6]-[9]). All this Court has before it is a pro forma medical certificate which is not of assistance. The medical certificate certainly does not satisfy the Court that the Applicant is unable to attend the hearing today. For those reasons, I refuse the Applicant’s application for an adjournment.

Conclusion

1. Counsel for the Minister has indicated that, in the event I refuse an adjournment, the Minister seeks that the application for judicial review be dismissed pursuant to r.13.03C(1)(c) of the FCC Rules. 

2. In the circumstances of this matter, I grant the Minister’s application and I will make an order dismissing the Applicant’s application for judicial review filed on 13 April 2017 pursuant to r.13.03C(1)(c) of the FCC Rules.

3. The Minister seeks costs incurred as a consequence of the adjourned hearing and the hearing today fixed in the amount of $4,400. I will make those orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  6 April 2018