Shi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 177
•1 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 177
File number(s): BRG 727 of 2019 Judgment of: JUDGE EGAN Date of judgment: 1 February 2021 Catchwords: MIGRATON – application for adjournment - failure of applicant to adduce medical evidence in support of adjournment application – failure of applicant to twice provide detailed particulars of grounds for review despite the making of court orders to that effect – application for review dismissed for non-compliance with orders of the Court. Legislation: Federal Circuit Court Rules 2001 (Cth), rr 13.03A(1)(a), 13.03B(1)(a). Cases cited: MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392.
DUN16 v Minister for Immigration & Another and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951.
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92.
Number of paragraphs: 11 Date of last submission/s: 1 February 2021 Date of hearing: 1 February 2021 Place: Brisbane Counsel for the Applicant: There being no appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms Reid of Clayton Utz Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
BRG 727 of 2019 BETWEEN: SHUHONG SHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Originating Application for Review filed on 15 August 2019 be dismissed pursuant to the provisions of Rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
EX TEMPORE REASONS FOR JUDGMENT
JUDGE EGAN
Upon the matter being called today, there was no appearance for or on behalf of the applicant. That was so notwithstanding that the applicant had been advised of the hearing date by registry notice dated 22 December 2020, as well as by the sending of an email from Judge's Chambers to the applicant, and to the lawyer for the first respondent, Ms Reid, on 27 January 2021.
It is clear from the receipt of an email sent from the email address of the applicant notified by the applicant for receipt of correspondence, such email having been sent on 30 January 2021 at 8.03 pm, that the applicant was aware of today's hearing. No medical evidence was adduced by the applicant in support of an application for an adjournment.
In MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, Logan J dealt with a situation where a medical certificate had been sent to the Court in an attempt to justify the adjournment of a hearing. At paragraphs 3-12 inclusive, Logan J said as follows:
“[3] That absence of appearance confirms a likelihood which became evident about an hour beforehand in the following circumstances. A friend of the appellant attended at the Victoria District Registry of the Court in the same building and there left the original of a medical certificate in respect of the appellant. That person was informed by the registry officer that the proceedings may nonetheless continue today.
[4] The communication from the registry office to chambers is in evidence as is the medical certificate. Omitting, as one must, the name of the appellant, the operative portion of the medical certificate is in these terms:
I have examined [the appellant] who in my opinion is suffering from a medical condition and will be unfit for work from 15/11/2016 to 16/11/2016 inclusive.
[5] The certificate is authored by one Dr Zahra Haroun of Chandler Road Medical Clinic, Noble Park in Victoria (Dr Haroun). It is dated 15 November 2016. Dr Haroun is, inferentially, a general practitioner practising at that clinic. Also inferentially, having regard to the attendance and the information provided to the registry officer as well as inferences available on the face of the medical certificate, the appellant is well aware that today is the date appointed for the hearing of his appeal. Also inferentially, from the appellant’s friend’s attendance at the registry and the proffering of the medical certificate, the appellant seeks an adjournment of his appeal. That adjournment was opposed by the Minister.
[6] The Minister’s further application was that in the event that the adjournment was refused, the appeal should be dismissed for want of prosecution. In support of this position, the Minister referred to a judgment of Lindgren J: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (NAKX). In that case, there was also an application by litigants in person for the adjournment of an appeal supported by medical certificates. Those certificates contained, as Lindgren J records at [5], the following statements:
The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
In respect of these certificates, Lindgren J (at [6] – [8]) observed:
[6] 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.
[7] 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.
[8] 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.
[7] In the result, his Honour refused the application for an adjournment and, there being a failure to appear, dismissed the appeals. The sentiments voiced by Lindgren J in NAKX in respect of the medical evidence tendered in support of the adjournment application in that case were referred to with approval by the Full Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [49] (Luck), a case to which I shall return shortly.
[8] Axiomatically, and as was conceded very properly by the Minister, these types of applications are necessarily always fact specific.
[9] In respect of this particular medical certificate, I make the following observations. Firstly, and again inferentially, the appellant was sufficiently healthy both physically and mentally to attend upon Dr Haroun yesterday. Secondly, the particular medical condition from which the appellant suffers is quite unknown. The certificate is noteworthy for its generality. Yet further, whatever medical condition it is would seem, more likely than not, to be the most transient of conditions. I make that observation because the unfitness attested is only from yesterday until today. Yet further, whatever medical condition it may be, it is one which, in the opinion of Dr Haroun, renders the appellant unfit for work, not, notably, to attend at Court, at least for the purpose of voicing personally an adjournment application, if not, also, for the purpose of making submissions in respect of his appeal on the merits. It is, of course, possible to envisage circumstances where someone might suffer from an overwhelming, yet transient, condition which does, albeit temporarily, render them unfit to appear at Court so as to prosecute their appeal. But one should not be left to speculate on such subjects. Finally, it must be said also, that the medical certificate concerned is not the subject of sworn or affirmed evidence. All in all, the medical evidence is, in my view, quite unsatisfactory as a basis for the support of an adjournment application.
[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
This is a case where no medical evidence has been proffered to the Court in an attempt to justify the making of an order for an adjournment. The principles as outlined by Logan J are accordingly apt to the circumstances of this matter.
Additionally, the originating application for review, as filed by the applicant, was wholly lacking in particularity. The only ground, that being ground 1, of the originating application for review, was as follows:
“1. There is a jurisdictional error has been made while AAT made the decision on my application.”
This Court has addressed the question of lack of particulars in originating applications for review in DUN16 v Minister for Immigration & Another and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951 and in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92.
It was ordered by this Court on 29 January 2020 that the applicant file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review. The applicant did not comply with that order.
On 21 May 2020, Registrar Carlton ordered that the applicant file and serve an amended application for review, with such amended application to included detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review by 4 pm on 4 June 2020. The applicant did not comply with such order.
The Court refuses the purported application for adjournment. No medical evidence was tendered. Also, the opportunity cost of any such adjournment was another reason why the adjournment should not be granted.
By reason of the applicant's default, the Court is minded to make an order dismissing the originating application for review by reason of the default of the applicant. A party is in default of rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) if they fail to comply with an order of the Court.
The Court is empowered, pursuant to the provisions of rule 13.03B(1)(a) of the Rules to dismiss the whole of the relief claimed by an applicant in circumstances where an applicant is in default. It is so ordered.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 February 2021
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