Munish v Minister for Immigration

[2015] FCCA 410

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNISH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 410

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – applicant fails to appear but sent document purportedly prepared by a medical practitioner saying applicant not fit for work and giving no information of reason for applicant not being fit for work – implied application for adjournment refused and application dismissed.

Legislation:

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

Migration Act 1958 (Cth)

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
SZTAI v Minister for Immigration and Border Protection [2014] FCCA 1405
MZABB v Minister for Immigration and Border Protection [2014] FCCA 2254
MZYZE v Minister for Immigration & Anor [2013] FCCA 569

Applicant: MUNISH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 219 of 2014

Judgment of: Judge Simpson

Hearing date: 10 February 2015

Date of Last Submission: 10 February 2015

Delivered at: Adelaide

Delivered on: 10 February 2015 (ex temp)

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 19 June 2014 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 219 of 2014

MUNISH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).  The application was filed on 19 June 2014.  On 4 July 2014, the matter came before a Registrar and orders were made, including listing the matter for hearing on 10 February 2015 at 2.15pm.  The applicant was provided with a copy of the orders of 4 July 2014 and was therefore well aware that the matter was to be dealt with today.  The evidence that is before me also indicates that the applicant well knew that the matter was to be heard today. 

2. On 9 February 2015, a document came to my chambers.  The document purported to be a document that was signed by the applicant.  The handwritten document said:

“Dear Sir

My name is Munish Munish.  My file No is ADG 219.  I am sick so I am unable to attend the hearing.  If you need any information please call me on this number 0469231983.”

1. The handwritten document that I have mentioned has attached to it what purports to be a medical certificate by a Dr Tejinder Singh.  Significantly it is dated 5 February 2015.  The substance of the document has the heading ‘Medical Certificate’ and states:

   “This is to certify that Munish Munish will be unable to attend work due to illness between the following dates:

   05/02/2015 to 12/02/2015 inclusive

   (may return sooner if clinical condition has improved).”

2. A portion of the document is headed: “The specific health reason for the time off work is”.  The entry states: “confidential medical information and can only be revealed to an employer with the express permission of the patient.”

3. At the appointed hour, the applicant’s name was called three times but he did not appear.  I then had my Associate attempt to contact the applicant on the telephone number that was on that handwritten document earlier referred to.  The phone calls were made soon after 2.15pm today and again at about 2.30pm today.  The phone calls were not answered and rang out.

4. I have been informed by counsel for the respondent that the respondent wishes me to proceed with this matter by dismissing the application. 

5. The documents that have been sent to the Court by the applicant might be interpreted as an application for an adjournment.  If it is an application for an adjournment, the steps that the applicant took are quite unsatisfactory, as has been mentioned in numerous similar cases. 

6. Counsel for the respondent has referred me to and provided copies of the following cases that are relevant to this situation:  NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559, a decision of Lindgren J; SZTAI v Minister for Immigration and Border Protection [2014] FCCA 1405, a decision of Judge Emmett; and MZABB v Minister for Immigration and Border Protection [2014] FCCA 2254, a decision of Judge McGuire.

7. Counsel has also referred me to r.13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth) which is the appropriate rule to use if an applicant does not appear at court and an application is dismissed.

8. In NAKX, a case with similar facts to the present case, his Honour Lindgren J said:

   “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.  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.  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. In MZYZE v Minister for Immigration & Anor [2013] FCCA 569, Judge Riethmuller had this to say in similar circumstances:

   “Of course, it will be a rare case where a person is so ill as to prevent their attendance at a Tribunal hearing. Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment.”

10. I agree with all that has been said in those cases.  In the present case I would have been willing to hear the applicant’s submissions over the telephone if he felt that he would find it difficult to come into court. 

11. In the present case it seems to me that it is a much clearer case than those that I have read from.  In the present case there is no indication of what the illness is.  The certificate relates to work and not simply attending court.  There is certainly no suggestion that he would not have been able to speak to the Court over the telephone. 

12. Insofar as what I will call, the medical certificate, supports an application for an adjournment then I find it unsatisfactory and attribute it no weight.  Consequently the adjournment application is refused.

13. The applicant gave a telephone number to the Court but there was no point in him giving a phone number if he is not going to be there when the matter needs to be dealt with. 

14. In the circumstances I consider it appropriate to accede to the respondent’s request. I will make an order that the application filed on 19 June 2014 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

15. There will be a further order made that the applicant pay the respondent’s costs fixed in the sum of $5,800.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  25 February 2015