Ghaffar v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHAFFAR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1937

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 the Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559

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
OF AUSTRALIA

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

The applicant, Mr Ghaffar, sought judicial review of a decision made by the Administrative Appeals Tribunal. The Minister for Immigration was the respondent. The core of the dispute concerned the Tribunal's dismissal of Mr Ghaffar's application for review of a decision made by the Minister, which had occurred due to Mr Ghaffar's non-appearance at a scheduled hearing. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal had erred in dismissing Mr Ghaffar's application for review pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). This rule permits the dismissal of an application where a party fails to appear at a scheduled hearing. The Court was required to consider whether the Tribunal had acted within its powers and whether its decision was affected by any error of law.

Emmett J found that the Tribunal had correctly applied rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). His Honour noted that the rule provided a clear basis for the Tribunal to dismiss an application when a party fails to appear at a hearing, and that there was no indication that the Tribunal had misconstrued or misapplied this rule. The Court concluded that the Tribunal's decision to dismiss the application was a valid exercise of its power under the relevant rule.

The application for judicial review was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established