Rathor v Minister for Immigration

[2015] FCCA 594

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATHOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 594

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Application for an adjournment of final hearing on medical grounds – whether applicant has the capacity to effectively participate in the hearing – adjournment granted.

Applicant: GURNAM SINGH RATHOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1345 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 March 2015

Delivered at: Sydney

Delivered on: 4 March 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondent: Mr A Markus of
Australian Government Solicitor

ORDERS

1. The hearing of this matter is adjourned to 2.15 pm on 22 April 2015.

2. Costs of the application for an adjournment reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1345 of 2014

GURNAM SINGH RATHOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 2 July 2014, this matter came before me on a first court date.  On that day, directions were made for the preparation of the matter for hearing, and a hearing date was given.  That hearing date was 10.15 am on 4 March 2015. 

2. At 6.29 pm on 3 March 2015, the applicant sent an email to the Court registry.  I must note that, before the email was sent, the applicant telephoned the registry about the matters which he set out in the email.  At any rate, the email was as follows:

   I am writing this email to you in regards to my hearing tomorrow 4th March 2015.  I called court and spoke to Stuart Chong about my sickness.  He suggested me to write in an email to this address about the same.  I would be unable to attend the hearing tomorrow as I am really sick.  I am also attaching my medical document for your reference.  Request you to please consider the same.

3. With that email was attached a scan of three documents.  One is a document issued by a Dr Kuzulugil, who apparently works at the West Ryde Medical Centre.  The document is dated 3 March 2015, and it states that “this is to certify that” – and then the name of the applicant is given – “is suffering from ‘stomach pain, flu’”.  Then, in a printed part of the form which states “and is unable to attend work/school”, there is a handwritten circle around the word “work”, and then, after the printed word “from”, there is written the date “3.3.15” and, after the printed word “to” the date “4.3.15 incl”.

4. The second document is one dated 3 March 2015, apparently signed by Dr Kuzulugil and addressed to “Dear Doctor”.  It states as follows:

   Thank you for seeing this P-T –

5. I will not attempt to quote everything else, because it’s not entirely clear what is in writing.  It is reasonably clear, however, that the letter refers to “abdominal pain, stomach pain, headache” – there’s a word which might be “myalgia” – “and shivers, temperature of 37.4 degrees, tender abdomen”, plus a word I cannot decipher – “R-I-F”.  The letter continues that the patient, who is the applicant, was asked to have C14 test last week, but that had not been done yet, and there’s other information there, the precise effect of which I cannot decipher or interpret.

6. And the third document is a request for the carrying out of some tests to be undertaken by pathologists.  Under the heading “Clinical Notes”, there is typed:

   Abdo, stomach pain, fever, headache?  H. pylori infection for check-up.

7. The matter came before me this morning.  I had the matter called, but there was no appearance by the applicant.  Mr Markus, the solicitor for the first respondent (Minister), applied for an order that the application be dismissed for non-appearance of the applicant pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). I propose to deal with the matter on the basis that there is on foot before me an application by the applicant for an adjournment on the ground of medical unfitness. What I have in mind, in considering the matter in that fashion, is that, if the application for an adjournment is granted, I will simply appoint a new hearing date, but, if it is not granted, I will then deal with the application to have the matter dismissed for non-appearance.

8. In the course of my hearing submissions from Mr Markus, I was given a copy of another communication which the applicant sent to the registry.  That is an email the applicant sent on 4 March 2015 at 10.32 am.  The email states as follows:

   This is in addition to my email yesterday.  I was in hospital emergency last night because of my sickness.  Please find attached my medical documents from yesterday night.  I really won’t be able to make it to the court today.  Requesting you to please consider the same.

9. There is attached to that email a document titled “Medical Certificate”, apparently issued in relation to the applicant by a facility of the New South Wales South Western Sydney Local Health District, that facility being Concord Hospital.  The document certifies that the applicant was treated at that health facility, which I assume is Concord Hospital, on 4 March 2015, suffering from “medical issue”.  The document contains these printed words:

   He/she will be unable to attend work/school from –

10. Then there is included by hand, the date “04/03/15”.  And then there is a printed word, after which there is the numbers written “06/03/15 inclusive”.  Down at the end of the document, there is a heading “Doctor/Dentist/Nurse practitioner to complete below”, then there is a provision for the inclusion of the name, signature and date of a person.  There is there written the words “resident medical officer” and is dated “04/04/15”.

11. In support of his opposition to my granting an adjournment, Mr Markus tendered into evidence a string of email correspondence between the applicant and the Minister’s solicitors.  The first email is one sent by the Minister’s solicitor to the applicant at 6.32 pm on 27 February 2015.  The email refers to a conversation earlier that day and confirms that the application has been listed before this Court on Tuesday, 4 March 2015 at 10.15 am.  That appears to be an error – the email should have stated the matter was listed on Wednesday, 4 March 2014 at 10.15 am – although, that error does not seem to have misled the applicant.  The email continued by stating that, if the applicant did not attend the hearing, the Minister may seek orders that the application be dismissed.

12. The next correspondence is an email from the applicant to a solicitor of the Minister sent on 3 March 2015 at 3.15 pm.  In that email, the applicant says:

    Unfortunately, I can not make the hearing tomorrow as I am really sick and not able to come to the court,  I am attaching my medical certificate.

13. The solicitor for the Minister then responded by email at 3.19 pm on 3 March 2015, stating there was no attachment to the email the applicant had sent, and requesting that the certificate be resent.  At 3.38 pm Mr Markus sent an email to the applicant requesting that the applicant forward to him any response to the email the Minister’s solicitor had previously sent at 3.19 pm.  Mr Markus said that any application for an adjournment is likely to be opposed by the Minister and stated that it may be in the applicant’s best interests to appear in Court at the time and place notified in the previous email.

14. The applicant responded by email at 3.46 pm on 3 March 2015, in which he stated:

    As I emailed to Louise that I am very sick to able to make the hearing tomorrow, so I am letting her know that if we can postpone for another date as I am unwell.

15. Mr Markus responded on the same day by an email he sent at 3.52 pm;  he stated:

    As indicated to you, your application to have the hearing adjourned is likely to be opposed by the first respondent (and certainly so in the absence of a medical report clearly establishing you unfitness to attend the hearing).  If your application for adjournment is refused by the Court, we will ask for your application for review of the Tribunal’s decision to be dismissed with costs.

16. The applicant responded by email at 4.34 pm on 3 March 2015, stating again that he was unable to attend, as:

    ...I am very sick,  what can I do as I don’t have and lawyer

17. There is no need to refer to any of the other correspondence in that chain. 

18. Mr Markus submits that the application for an adjournment should not be granted.  First, he submits that I should not accept the medical evidence as proving that the applicant has been unable to, or is unable to, effectively participate in the hearing.  He points to the rather general nature of the evidence, and he particularly points to the reason given in the certificate issued by Concord Hospital, namely, that the applicant is suffering from a “medical issue”, as really not being evidence on which I should rely to conclude the applicant is unfit to effectively participate in the hearing.

19. Mr Markus also submitted that there would be prejudice to his client if the matter were adjourned, and there may well be prejudice to the manner in which I conduct my list.  He also submits that any prejudice to the applicant in the application not being granted, and in my dismissing the application for review for non-appearance, will be mitigated by the fact that the applicant will have an opportunity, if he so chooses to avail himself of it, to apply for reinstatement, and it will be on that occasion for the applicant to give proper evidence of the medical condition he claims prevents him from appearing today, and which will provide the Minister with an opportunity to properly test that evidence.

20. A judicial hearing presupposes that the parties participating in the hearing have the physical and mental capacity to effectively participate in the hearing.  Unless a party claims he or she does not have the requisite capacity to participate, or unless it is apparent to the Court that a party does not have the capacity, the Court assumes that a party has the physical and mental capacity to effectively participate in the hearing.  When a party claims he or she does not have the capacity to participate, the Court must immediately consider whether that is so.

21. The first matter the Court must bring to mind are the things that a party must have the capacity to do in order to effectively participate in the hearing.  As a minimum that requires an ability to comprehend the substance of what is occurring at the hearing, and that, in turn, requires an ability to understand the language used by the judge and by the other parties, and the ability to use language to communicate.  If the party cannot understand, or sufficiently understand, or speak the English language, then the party must have the capacity to understand what is interpreted to him or her and to communicate what he or she wishes to communicate in his or her language.

22. Having identified the things a party must have the capacity to do in order to effectively participate in a hearing, the Court must then identify what it is that a person claims prevents him or her from effectively participating in a hearing.  It can be something physical – pain, nausea, giddiness, the need to recover from some illness or injury – or it can be something mental.  The mere fact that a person claims he or she is suffering from any one or more of these conditions, however, does not establish that the person suffers from the condition.  It must be established by evidence, and, here, the evidence usually must comprise lay and expert medical evidence.

23. The lay evidence will usually be given by the person who claims he or she does not have the capacity to effectively participate in the hearing.  That evidence will refer to the symptoms the person claims he or she suffers from which he or she says prevents him or her from effectively participating in the hearing.  The expert medical evidence should describe whether the reported symptoms manifest any recognisable medical or psychological condition, whether such medical or psychological condition may impair a person’s ability to understand what is said in court and to communicate in court, and whether the medical or psychological condition, as it manifests itself in a person who claims unable to participate in the hearing, in fact impairs the person’s ability to understand and communicate in a court setting, and, if so, the extent to which the condition may impair that person’s ability.

24. That means the first question I should address is the evidence which discloses the symptoms the applicant claims prevents him from effectively participating in a hearing.  That is to be found, really, in one source, and that is the medical certificate and letter that was communicated to the registry yesterday afternoon.  The doctor simply refers to stomach pain and flu, and the letter from the doctor refers to stomach pain, headache and shivers.  The documents do not disclose the severity of the symptoms.  However, I’m not prepared to infer that the symptoms are on the lower scale such that I would be satisfied that the applicant could nevertheless participate in a hearing.

25. Mr Markus, on behalf of the Minister, had every right to submit, with force, that the evidence is to a degree unsatisfactory, and is such as could lay the foundation for an inference that the applicant, in effect, is making up the symptoms in order to obtain a certificate which will enable him to submit to the Court that he does not have the capacity to participate in a hearing.  That, obviously, is not a matter that I can infer simply from the documentation that has been put before the Court.  In a very real sense, the Court is always a captive to what, on its face, is not entirely satisfactory medical evidence, because, once the evidence is before the court, it cannot simply be discounted without further inquiry into its veracity.  That, perhaps, is an unsatisfactory state of affairs. 

26. In any event, the prejudice that would be suffered by a party, such as the Minister, who opposes the granting of an adjournment, is not likely to be great, because, in all probability, the refusal of an adjournment, and a consequent dismissal of the application for non-appearance, is unlikely to be the end of the matter. The applicant would be perfectly entitled to apply to reinstate his matter and rely on, perhaps, better medical evidence to explain his non-appearance at the date of the hearing.

27. In this particular case, any prejudice to the Minister will be minimal, because the Court is in a position to give a hearing date in the not-too-distant future, and that date is 10.15 am on 22 April 2015. 

28. I am satisfied there is sufficient medical evidence before me to indicate that the applicant is not in a position, or was not in a position, to attend today’s hearing and effectively participate in that hearing.  For those reasons, I propose to adjourn today’s hearing to another date, that date being 22 April 2015 at 2.15 pm.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 March 2015