Dwu16 v Minister for Immigration

[2018] FCCA 704

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 704

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa.

PRACTICE AND PROCEDURE – Dismissal of application because of default by the applicant – failure to comply with court order concerning future medical certificates.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: DWU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3573 of 2016

Judgment of: Judge Driver

Hearing date: 23 March 2018

Delivered at: Sydney

Delivered on: 23 March 2018

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. No further application by this applicant in relation to the decision of the Administrative Appeals Tribunal made on 17 November 2016 be accepted for filing, except by leave of the Court.

3. The applicant is to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3573 of 2016

DWU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Procedural orders in relation to this matter were made by a registrar on 27 April 2017. Relevantly, the registrar ordered that the application be listed for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on 8 September 2017 at 11.00am.

2. The applicant did not attend court at that time.  He did, however, provide a medical opinion from Dr Joseph D’Silva of The Wangee Clinic in Greenacre.  Dr D’Silva opined that the applicant was suffering from symptoms of paranoia, depression and anxiety, and was psychologically unfit to attend the hearing on that day due to his vulnerable psychological health.  The Court was successful in contacting the applicant by telephone at that time, and in view of the circumstances I adjourned the hearing of the application until today. 

3. I ordered that the matter be listed for a final hearing today and made a show cause order in relation to the second ground in the application.  The Minister’s representatives had prepared for today’s hearing on that basis.  Importantly, the orders that I made on 8 September 2017 included the following at order 3:

   There be no adjournment of the final hearing by reason of asserted illness unless the applicant provides an opinion of a medical practitioner as to his unfitness to attend Court. 

4. Earlier this morning my associate received from the Minister’s solicitor’s email correspondence from the applicant received by them at 9.32pm yesterday.  Relevantly, the applicant states that he is requesting that his hearing today be rescheduled due to a medical emergency.  He states that he is suffering lower back pain and cannot move his body.  The applicant furnished a medical certificate from Dr Yang Daniel Chang dated 19 March 2018.  Dr Chang certifies that he examined the applicant on 19 March and expresses the opinion that he is suffering from lower back pain and would be unfit for work from 19 March 2018 to 21 March 2018 inclusive. 

5. Plainly, that medical certificate does not assist the applicant as the hearing is listed today on 23 March.  It appears that yesterday the applicant consulted a different doctor, Dr Inas Hegazi at the Ponds Medical Centre and obtained from Dr Hegazi a further certificate stating that, in his opinion, the applicant will be unfit to continue his usual occupation including heavy lifting between 22 and 23 March inclusive.  That certificate does not assist the applicant either because it says nothing about his fitness to attend court. 

6. I instructed my associate to advise the parties that the Court would telephone the applicant in order to discuss the circumstances at the outset of today’s hearing. My deputy associate, with the assistance of the interpreter booked for today’s hearing, made three attempts to contact the applicant on his nominated telephone number before I came on the bench. All of those attempts were unsuccessful. The phone diverted to a message bank. The circumstances lead me to the view that the applicant is in default for the purposes of rule 13.03A(1)(a) of the Federal Circuit Court Rules because he has failed to comply with my order requiring that any application for an adjournment be supported by a medical opinion as to the fitness of the applicant to attend court.

7. In the light of that default, rule 13.03B authorises the Court to dismiss the whole of the proceeding.  The matter has been called twice this morning and there was no answer to the call.  In view of the applicant’s default and the failure of the applicant to attend by telephone in order to address the circumstances, I have decided to dismiss the application on account of the applicant’s default.  There is a strong impression which I glean from the circumstances in this case that the applicant is, in fact, toying with the Court through these asserted medical conditions. 

8. In view of that concern, I will further order that no further application by this applicant in relation to the decision of the Administrative Appeals Tribunal made on 17 November 2016 be accepted for filing except by leave of the Court. 

9. In view of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $7,000.  I accept that that is a reasonable costs outcome having regard to the preparation undertaken on behalf of the Minister.

10. I will order that the applicant is to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $7,000.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 March 2018