Singh v Minister for Immigration
[2017] FCCA 931
•31 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 931 |
| Catchwords: PRACTICE AND PROCEDURE – Dismissal for non-attendance. |
| Legislation: Federal Circuit Court Rules 2001, r.13.03C |
| First Applicant: | JITENDER SINGH |
| Second Applicant: | MANISHA |
| Third Applicant: | REHAAN KAMBOJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 136 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 31 March 2017 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Solicitors for the Respondents: | Mr E. Solana of Sparke Helmore |
ORDERS
The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the amount of $6825.
The first respondent have liberty to apply in the event that $6825 was not the relevant scale amount at the time this proceeding was commenced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 136 of 2016
| JITENDER SINGH |
First Applicant
| MANISHA |
Second Applicant
| REHAAN KAMBOJ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was originally listed for hearing on 29 March 2017, the day before yesterday, but the applicant sent an email to the Court that day saying:
… I am not able to attend [my hearing today] because I am not well and in the Armadale hospital at the moment.
In the circumstances, the matter was adjourned to today at 9am for hearing.
At 11:05am on 29 March 2017, the Court wrote to the applicant by email advising him of the adjourned hearing date and the fact that the matter would be heard in court 6.2 of the Commonwealth Law Courts building in Perth. It should be noted, at this point, that we are currently sitting in a courtroom on the fourth level of that building.
At 11:47am on 29 March 2017, the applicant wrote again to the Court requesting the adjournment of his case, saying he was not sure if he would be fit to appear today. In support of an application for a further adjournment, he provided the Court with a discharge summary from the Armadale Health Service which referred to his history of intermittent central sharp chest pain but noted, amongst other things, that he was haemodynamically stable throughout his stay and that his “vitals” remained normal. It stated:
His ….. troponin was negative and he had a normal CXR. A point of care echo showed good LV/RV systolic function and there were no valvular pathologies seen.
…
There were no risk factors for VTE and he was PERC negative.
There was some concern about his blood pressure and I have explained that a sustained high BP would warrant management and we would not be unduly concerned with his initial high BP as it settled during his stay.
I have reassured him and explained that we have ruled out any serious cause of his discomfort, but I have asked him to continue with OTC anti-inflammatory analgesia.
The applicant was referred to his general practitioner for further care.
Yesterday, at 9:03pm, the applicant wrote again to the Court advising that he had been badly sick and that that day he had:
…been to the doctor for the same. I could not go to work and doctor refer me for the further chest tests to find out about the pain cause and to see if I had any heart problem. Because I still have the pain and it is very sharp most of the time. I know, at my current health condition, I am unable to attend the hearing in the court.
Attached to that email was a generic medical certificate issued by the Beckenham Medical Centre, stating:
This is to Certify that Mr Jitender Singh has been seen at the surgery today. Jitender will be unable to attend his work from 30/03/2017 to 31/03/2017.
Also enclosed with the email was a referral to Global Cardiology. The applicant was referred for a routine, that is to say not urgent, stress echo test. A further copy of his hospital discharge summary was also enclosed.
What the applicant has provided to the Court is some evidence of the fact that, on a self-reporting basis, he suffers chest pains. It seems plain from the discharge summary from the Armadale Hospital that he was content for his treatment to be limited to supervision by his general practitioner and over-the-counter analgesia. The generic medical certificate provided by the applicant’s general practitioner says only that he cannot go to work. The medical certificate did not address why the applicant might not be able to attend Court and it does not satisfy me that he is not able to attend Court and present his case. Nothing in the other materials which the applicant has provided suggests to me that he has made out his application for an adjournment of the case.
I am not satisfied that the applicant has demonstrated a basis upon which the adjournment he seeks should be granted and it will be refused.
The first respondent (“Minister”) has tendered a copy of an email his solicitors sent to the applicant this morning reminding him of today’s hearing and stating that if he did not attend the hearing an application would be made to dismiss for non-attendance.
The Minister has sought dismissal of the matter pursuant to r.13.03C(1)(c) of the Court’s rules by reason of the applicant’s non-attendance. As noted earlier, this matter was originally listed for hearing today in the courtroom two floors above where the Court is presently sitting, however, shortly before I came onto the bench at 9:05am, the matter was called not only here on level 4 of the courthouse but also on level 6. There was no answer to the call in either place.
In the event that the applicant was simply running late, I adjourned the matter to 9:20am. During the adjournment, the matter was called again on level 6 as well as outside the Court when court resumed. Again, there was no response to the call. During the adjournment, Mr Solana, who appears for the Minister, also contacted his office and was able to determine that no telephone call had been received by the applicant which would explain his absence today.
It is plain that the applicant was aware of today’s adjourned hearing and I am satisfied that the Minister put him on notice of the potential consequences of a failure to attend. In all the circumstances, there seems to me no reason why the proceeding should not be dismissed as the Minister seeks.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 10 May 2017
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