Elbialy v Minister for Immigration

[2017] FCCA 863

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELBIALY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 863

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Cases Cited:
Nakx v Minister for immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2014] FCA 538

Applicant: HESHAM MOUSAD ABELNABY ELBIALY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 580 of 2016

Judgment of: Judge Emmett

Hearing date: 27 April 2017

Date of Last Submission: 27 April 2017

Delivered at: Sydney

Delivered on: 27 April 2017

REPRESENTATION

No appearance by or on behalf of the applicant.

Counsel for the Respondents: Mr Mark Cleary

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 580 of 2016

HESHAM MOUSAD ABELNABY ELBIALY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 16 March 2016, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 28 April 2016, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any additional evidence, and submissions in support of his application, and the matter was set down for final hearing today at 10.15am before me.

3. At the directions hearing, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

4. There have been no documents filed by or on behalf of the applicant either in accordance with those directions or otherwise.

5. There has been no appearance by the applicant this morning and no contact received by the Court from the applicant seeking an adjournment of today’s hearing or for any other reason.  The matter was called at 10.15am and again at 10.30am and there has been no response.

6. In accordance with the duty of the first respondent as a model litigant, counsel for the first respondent, Mr Cleary, tendered a copy of email traffic received by the first respondent purportedly on behalf of the applicant seeking an adjournment of today’s hearing which was marked Exhibit 1R. A medical certificate from a Dr Selim which was attached to Exhibit 1R was marked Exhibit 2R.

7. The response by the first respondent in Exhibit 1R to the applicant’s request was that the certificate was inadequate and that any application for an adjournment was opposed. Exhibit 1R informed the applicant that unless an adjournment was granted, the applicant was required to attend Court today at 10.15am and, in the event that the applicant failed to appear, the first respondent would seek to have the matter dismissed with costs. There has been no response received by the first respondent to that email dated 24 April 2017.

8. The certificate by Dr Selim, being Exhibit 2R, states as follows:

   This is to certify that [the applicant] will be unfit to attend Court from Thursday, 20 April 2017 to Saturday, 20 May 2017 (inclusive) because he is suffering from lumbar disc disease radiculopathy, needs Neurosurgeon assessment.

9. This certificate was completed on 20 April 2017. On one view, there has been no appearance by the applicant and no formal application to the Court for an adjournment. On that basis alone, the matter could be dismissed for non-appearance. However, I have regard to the medical certificate provided purportedly by the applicant in support of his request to the first respondent to adjourn the proceeding.

10. The medical certificate is plainly inadequate. It does not reveal an evaluation by Dr Selim of the applicant’s ability to attend or participate in the Court process. Nor does it address the question the Court would need to determine, namely, whether the applicant’s medical condition was such that he would be prevented from attending Court and participating in the hearing.

11. It is well established that the critical question for the Court in considering such medical certificate is whether the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing (see Nakx v Minister for immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[11] per Lindgren J and Singh v Minister for Immigration and Border Protection [2014] FCA 538 at [3] per Pagone J).

12. In the circumstances, on the evidence before me, it is my view that even if an adjournment request was made by the applicant supported by Exhibit 2R, it would not be sufficient for the Court to grant an adjournment. 

13. As stated above, in fact, no request for an adjournment to the Court has been made by the applicant.  In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.

14. Accordingly, the proceeding before this Court, commenced by way of application filed on 16 March 2016, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

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

Date: 15 May 2017