Deen v Minister for Home Affairs

[2019] FCCA 2363

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEEN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2363

Catchwords:
MIGRATION – Correspondence directed to Judge’s Chambers seeking adjournment based upon medical condition – medical certificate failed to state why condition prevented applicant from appearing at court hearing – deficiency in medical certificate – withdrawal of counsel – applicant legally qualified – application for review dismissed due to the absence of the applicant.

Legislation:

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

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCA 108

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

Applicant: MUSSARAT DEEN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 819 of 2018

Judgment of: Judge Egan

Hearing date: 13 August 2019

Date of Last Submission: 13 August 2019

Delivered at: Brisbane

Delivered on: 13 August 2019

REPRESENTATION

Applicant: No appearance

Solicitors for the First Respondent: Ms Helsdon of Sparke Helmore

ORDERS

1. The application for review filed on 10 August 2018 be dismissed pursuant to the provisions of Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the absence of the Applicant.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 819 of 2018

MUSSARAT DEEN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing by the Court today. The matter had previously been listed for hearing on 8 March 2019 by order of Registrar Belcher made on 24 September 2018. Further, the matter had had a new hearing date of 21 May 2019 allocated for hearing by order of this Court made on 12 November 2018. By a letter from Judge’s chambers sent to the parties on 2 May 2019, the hearing date for the matter was moved to 13 August 2019 at 9.30 am – namely, today. 

2. Ms Helsdon appears on behalf of the first respondent. A call was made of the applicant three times by the associate. After such call, there was no appearance by the applicant. To be put into context, the non-appearance of the applicant would have been sought to be justified on the basis of the apparent issue to the applicant of a medical certificate dated 8 August 2019. That medical certificate reads as follows:

   Queensland

   Government

   MEDICAL CERTIFICATE – Patient Copy

   This is to certify that, Mussarat Deen                   URN     836058

   was examined on the 08.08.2019    as an     inpatient

   Resulting from a medical condition

   and was found to be totally incapacitated for work.

   for the period up to and including 14/08/2019

   Health

   Practitioner           Dr Andrew Koo

   Signature ___(Signature of Dr Andrew Koo)___      Date 08.08.2019

   Department of Cardiology

   The Prince Charles Hospital

   Metro North Health Service District

3. That medical certificate was forwarded to the Court’s associate by a lawyer from the applicant’s firm – the applicant is herself a lawyer – on 9 August 2019. A copy of that email was sent to the lawyers for the first respondent. That email is as follows:

   Dear Officer of Justice,

   We refer to the matter listed on Tuesday before the honourable Justice Egan - Mussarat Nisha Deen vs Minister of Home Affairs. 

   Ms Deen was admitted to Prince Charles Hospital yesterday. We attach for your perusal a certificate of incapacity to substantiate this. She has been clearly advised that she will in no way be released ‪before Wednesday at least. 

   We have approached the Minister for consent but unfortunately the Minister has exercised his discretion in the negative. 

   Ms Deen had approached counsel ‪on Wednesday morning for an opinion on prospects but was too ill to properly brief her. The advice on prospects has still not been provided and as such we cannot brief counsel in Ms Deen’s absence. There is no staff currently employed with a practicing certificate within our firm other than Ms Deen. I myself only work 10-14 hours a week as a paralegal and do not have the capacity nor the capability to appear or to brief counsel. 

   Counsel resides in Sydney and cannot and will not be attending without being properly briefed and having an opportunity to obtain agreement as to costs. 

   Unfortunately, there is no one who can appear on Tuesday and we are therefore approaching you for your indulgence in this matter. 

   Kind Regards,

   Riffat Gurdezi

   Paralegal

   Lawyers With Integrity

   ABN: ‪49314161579 MARN:‪1796636

   54 O’Grady Street Upper Mount Gravatt QLD 4122  

   Ph: ‪[phone]

   E: [email protected]

   W: >

   There has been subsequent correspondence both between lawyers and to Judge’s chambers concerning the non-availability of the applicant, as well as the prospect of counsel being briefed to appear on behalf of the applicant at today’s hearing. The most recent correspondence was from one Ms Baw of counsel who indicated that in all of the circumstances she would “withdraw from the proceedings”, the effect of which being that she would not appear today.

4. It is convenient to mark the relevant correspondence exchanged between the parties and sent to chambers as Exhibit 1, and the Court does so. It is submitted on behalf of the first respondent that the medical certificate is deficient for the purposes of the Court’s proper granting to the applicant of due consideration for any adjournment of the proceeding. Reliance was placed upon the decision of Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108 where, at [2], Pagone J placed reliance upon a decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 where his Honour Lindgren J said at [5]-[11] of his reasons as follows:

   [5] 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.’

   [6] 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.

   [7] 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.

   [8] 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.

   [9] 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.

   [10] In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]-[8] above.

   [11] I refuse the application for an adjournment.

5. It was submitted on behalf of the first respondent that the medical certificate provided by the applicant for the Court’s consideration today was similarly deficient to the medical certificate as identified by Lindgren J in the case before him. Similarly, it was submitted that the question of an adjournment of the matter ought to be decided against the applicant. The Court accepts such submission.

6. In addition to the subject medical certificate lacking any statement as to why the medical condition the subject of the medical certificate would prevent the applicant from appearing at Court or briefing counsel to appear at Court on her behalf, it is also the case that the applicant is in default.

7. Order 5 of the order of Registrar Belcher dated 24 September 2018 provided that the applicant was to file and serve written submissions and a list of authorities in support of the application for review by 4:00pm 15 days prior to the hearing. The applicant has failed to comply with that order. It is to be noted that such failure to comply pre-dated the date on which the applicant was said to be incapacitated as recorded in the medical certificate referred to above.

8. As indicated earlier, this matter has been listed for hearing on three separate occasions. The Court is not persuaded that the applicant was unable to attend Court based on the contents of the medical certificate dated 8 August 2019, or otherwise.

9. Ms Helsdon has made application for the dismissal of the proceedings due to the absence of the applicant pursuant to the provisions of rule 13.05C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (‘FCC Rules’).

10. In circumstances where the applicant has failed to either secure the attendance of counsel to address the Court today on relevant issues, and further in circumstances where the medical certificate is deficient on its face insofar as no reason was given as to why the applicant, by reason of her medical condition, could not appear in Court today, the Court has been persuaded to accept the application made on behalf of the first respondent.

11. In those circumstances, it is ordered that the application be dismissed pursuant to the provisions of rule 13.03C(1)(c) of the FCC Rules due to the absence of the applicant.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  26 August 2019