MZABB v Minister for Immigration
[2014] FCCA 2254
•10 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZABB v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2254 |
| Catchwords: MIGRATION – Application for adjournment – no appearance by the applicant – medical certificate – consideration of NAKX v Minister for Immigration and Multicultural Affairs – application dismissed. |
| Legislation: Migration Act 1958 Federal Circuit Court Rules 2001 |
| MZYZE v Minister for Immigration and Anor [2013] FCCA 569 NAKX v Minister for Immigration and Multicultural Affairs [2003] FCA 1559 |
| Applicant: | MZABB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 353 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 10 September 2014 |
| Date of Last Submission: | 10 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the First Respondent: | Ms Randall Smith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 27 February 2013 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 353 of 2014
| MZABB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The substantive application before me is one listed today from an order of a registrar, made as long ago as 21 May 2014 seeking a judicial review of a decision of the Refugee Review Tribunal on 10 February 2014 affirming a decision of the Minister’s delegate from 30 July 2013 not to grant the applicant a protection class XA visa.
The day before yesterday, 8 September, my chambers received by facsimile transmission a medical certificate, together with a handwritten letter, which I accept as being from the applicant, annexing the medical certificate and advising that the applicant was unable to attend at the hearing. The medical certificate is from a doctor in Canberra and is dated 8 September 2014 and says this:
That the applicant has a medical condition and will be unfit for work from 8 September 2014 to 11 September 2014 inclusive.
There appears to have been some reassessment of that, because quite clearly the word “eleven” is included over the typing – handwritten, but in any event. It continues with some handwriting that says, and I accept now, the words “reason”, “muscular pain”, “8.9.14 to 11.9.14”. That is the extent of the certificate.
The letter annexing the certificate, as a matter of courtesy, informs me from the applicant that he would, as a consequence, not be able to attend the hearing which is on today.
The letter does not specifically seek an adjournment but to be fair to an applicant in these circumstances I am prepared to infer that this constitutes an application for an adjournment supported by the medical certificate. Counsel for the respondent I think agrees with me.
The application for the adjournment based on the medical certificate is opposed.
Counsel for the respondent has helpfully, in support of her opposition, provided me with two relevant authorities, the first being a decision of his Honour Justice Lindgren of the Federal Court in NAKX v Minister for Immigration and Multicultural Affairs[1], an unreported judgment from 9 February 2004, and then a decision of my colleague Judge Riethmuller delivered on 30 July 2013 in MZYZE v Minister for Immigration and Anor[2]. Both deal with similar factual platforms to that before me today, where an applicant has not attended at court but has provided a medical certificate and purported to rely on that document for an adjournment.
[1] [2003] FCA 1559
[2] [2013] FCCA 569
In his judgment Lindgren J says the following:
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 should have that effect. Insofar as the medical certificate supports an application for an adjournment, then I find it unsatisfactory and attribute it no weight consequently, and an adjournment application is refused.[3]
[3] Ibid at [6] – [11]
I respectfully adopt the tenor and force of his Honour’s comments. Suffice for me to say that his Honour Judge Riethmuller adopted the comments and observations of his Honour in NAKX. Judge Riethmuller at paragraph 24 of his Honour’s reasons says this:
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.
The simple fact here is that this matter is listed for a hearing and has been listed for some time. The medical certificate, in my view, does not address in any sense whatsoever the alleged inability of the recipient of the certificate to attend at what would be a relatively short court event. And the fact that he may or may not be fit for work – I am not sure of his employment status if any noting the application before me, but the fact that he may or may not be unfit for work for a period of three days is in my view, is of no assistance whatsoever.
Like Lindgren J, I find that the certificate as supporting an application for an adjournment to be completely unsatisfactory and I attribute it no weight.
There is no other evidence before me in support of the adjournment application. The application is therefore refused.
It follows that I have dealt with what I interpreted to be an application for an adjournment based on a medical certificate afforded to the court, where the applicant has not appeared at court today. Insofar as that was an application for an adjournment it has been rejected, or refused, now left in a situation where the applicant has not appeared at the hearing, and in my view it’s open to proceed to deal with the matter under division 13(1)(a) of the Federal Circuit Rules, and in particular rule 13.03(1)(c), and the application will be dismissed accordingly.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge McGuire.
Date: 21 October 2014