Ghaffar v Minister for Immigration
[2017] FCCA 1937
•10 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GHAFFAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1937 |
| Catchwords: 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: Singh v the Minister for Immigration and Border Protection & Anor [2016] FCA 620 |
| Applicant: | MUZAMMAL GHAFFAR |
First Respondent: Second Applicant: | MINISTER FOR IMMIGRATION & BORDER PROTECTION ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1719 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 10 August 2017 |
| Date of Last Submission: | 10 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Solicitors for the Respondent: | Ms Sharon Sangha Minter Ellison |
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1719 of 2017
| MUZAMMAL GHAFFAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
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 2 June 2017, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.
Yesterday afternoon, correspondence was received from the applicant seeking an adjournment of today’s matter for the following reason:
“helo sir /mam
my name is : muzammal ghaffar
file no: syg1719/2017
helo sir/mam I want to let you know that I got too sick unlucky the left side of my face been paralysis due to bells palsy
in short medically am not able to attend the hearing tomorrow so please give me next date for hearing thanks
please find the attachment for my medical certificate”
(Errors in original)
The applicant’s email attached a medical certificate which stated no more than that the applicant had attended an appointment and would not be able to work on Monday, 7 August to Monday, 14 August inclusive. It noted that the certificate was completed on 7 August 2017.
The applicant’s application for an adjournment was opposed by the first respondent on the basis that the medical certificate was wholly unsatisfactory and failed to identify what the applicant is unfit to do or to specify what medical condition the applicant is suffering from and why this would prevent the applicant from attending and participating in the Court hearing this morning.
The first respondent also noted in the email that it was not apparent from the medical certificate, dated 7 August 2017, why it was not provided to the Court or the first respondent until 3.35pm yesterday afternoon, the afternoon before the hearing.
Quite clearly, the medical certificate is inadequate and does not identify what it is that is preventing the applicant from attending Court today. It is curious that the medical certificate provided to the applicant on 7 August 2017 was not sent through to the Court until late yesterday afternoon. There is nothing on the face of the medical certificate to satisfy the Court that the applicant is unable or unfit to attend Court today and participate in the hearing.
It is well established that a medical certificate should identify the medical condition that would prevent the sufferer from participating effectively in a court hearing. The medical certificate provided by the applicant plainly does not address that critical question (see NAKX v the Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559 at [8] per Lindgren J; Singh v the Minister for Immigration and Border Protection & Anor [2016] FCA 620 at [6] per Markovic J).
In the circumstances, the application for an adjournment is refused.
Turning to the first respondent’s application this morning that the matter be dismissed pursuant to r.13.03C(1)(c) of the Rules, I note that the applicant attended a directions hearing on 29 June 2017 before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and written submissions in support of his application. The applicant was also provided at the directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. I do note that on 29 June 2017 the applicant filed a further notice of address for service. I note that the address and the telephone number on that document are the same as those on the applicant’s initiating application filed on 2 June 2017. I also note that the email address on that notice of address for service appears to be the email address used by the applicant to correspond with the Court yesterday afternoon.
At that directions hearing, the matter was set down for hearing today at 9.30am. It is now 9.57am. The matter has been called outside on at least on two occasions, the last occasion being less than five minutes ago.
In the circumstances, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.
I am satisfied that the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 2 June 2017, 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
Associate:
Date: 15 August 2017
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