SINGH v Minister for Immigration

[2016] FCCA 429

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 429

Catchwords:
MIGRATION – Judicial review – non-appearance by the applicant – adjournment sought – medical certificate inadequate.

Legislation:

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

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79

Applicant: BALJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 746 of 2015

Judgment of: Judge Harland

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Melbourne

Delivered on: 11 February 2016

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr Hutton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 10 April 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 746 of 2015

BALJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review which is listed for final hearing today.  The application was filed on 8 April 2015 and a Registrar of this Court made the usual directions on 21 July 2015 which included listing the matter for hearing before me today.  The applicant has not attended Court today but has provided a medical certificate to counsel for the Minister.  Counsel has handed up a series of emails and attachments and I will mark the bundle as exhibit A. 

3. The applicant sent an email to Mr Hutton on 11 February 2016 at 10:30am - that is an hour before the hearing was scheduled to start today, indicating that he was unable to attend the hearing and attached a medical certificate.  The medical certificate was completed yesterday and says that the applicant is receiving medical treatment for the period Wednesday 10 February 2016 to Friday 12 February 2016 inclusive and will be unfit for his usual occupation. 

4. Mr Hutton replied to the applicant’s email indicating that as the applicant had not brought the adjournment application to the Court’s attention he would do so this morning and he would oppose the application for adjournment on the basis that the medical certificate is inadequate and does not disclose a reason why he is unable to attend Court today.  The bundle also includes an email, a medical certificate and a diagnostic imaging report from July 2015. 

5. The applicant sent an email to Mr Hutton on 21 July 2015 which was the day the matter was listed for a directions hearing before the Registrar, indicating that he would not be able to attend because he had had an accident at work and had an injury to his lower back.  He attached a medical certificate which again is vague and simply refers to being unfit to continue his usual occupation and includes a request for diagnostic imaging because of injury to his lower back at work.  That shows a pattern of the applicant failing to attend court events. 

6. Mr Hutton helpfully handed up the case of NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79 which is a decision of Lindgren J of the Federal Court which is relevant to this point. In that case, the applicant also sought to rely on two medical certificates. Lindgren J found that the medical certificates were unsatisfactory because they merely repeated what the applicant had told his general practitioner and the certificates did not explain why in that case having a severely itchy rash would have prevented the applicant from participating in a short court hearing. That appears at paragraph 6.

7. In this case, there is even less detail than in the certificates in that case.  The medical certificate that the applicant has provided which is similar to the medical certificate he provided in July last year, appears to be a a standard template medical certificate where a medical practitioner simply fills in the dates and states that he is unfit for his usual occupation.  That does not give any indication that he would not be fit to attend Court which is a very different matter potentially to attending to his usual occupation which, from his paperwork, is as a tradesman in painting work which is a physical activity. 

8. The applicant has also not filed any amended application or submissions in support of his claim. In those circumstances, I am not satisfied that it would be an appropriate exercise of my discretion to grant the applicant an adjournment and I therefore refuse the application for an adjournment. Mr Hutton seeks that the matter be dismissed for the applicant’s non-appearance pursuant to rule 13.03(c) of the Federal Circuit Court Rules 2001 (Cth) and I will make that order. It is also appropriate to make the order Mr Hutton seeks for the Minister’s costs in the sum of $3,500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  2 March 2016