Singh v Minister for Immigration & Anor

[2014] FCCA 2537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2537

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – application dismissed as a result of applicant failing to appear – applicant provides document from physiotherapist stating applicant has soft tissue injury to his back that prevents him working for 3 days – case of MZZGY v Minister for Immigration and Border Protection considered.

Legislation:

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

Migration Act 1958 (Cth)

MZZGY v Minister for Immigration and Border Protection (2014) FCA 488

Applicant: INDERVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 3 of 2014

Judgment of: Judge Simpson

Hearing date: 14 October 2014

Date of Last Submission: 14 October 2014

Delivered at: Adelaide

Delivered on: 14 October 2014 (ex tempore)

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 8 January 2014 is dismissed pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do forthwith pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 3 of 2014

INDERVIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal.  The applicant’s name has been called three times, and he has not appeared.  The Court has attempted to contact him by telephone using the telephone number that is on his Application.  His Application filed on 8 January 2014 had the telephone number, 0411 499 045, and Mr d’Assumpcao, for the first respondent, has indicated that his Department has not been notified of any change of telephone number on behalf of the applicant. 

2. The matter was listed for 10.00am.  The Court room was open from 10.00am but the applicant has not appeared.  The Court attempted to contact the applicant by telephone this morning at about 10.30am. 

3. In the circumstances, I consider it appropriate to make an order dismissing the application pursuant to r.13.03C. It is to be noted that the applicant – I assume it was the applicant but if it was not the applicant, it was somebody on his behalf – sent to the Registry of this Court a one-page document headed “Henley Beach Physiotherapy”. The document is dated 13 October 2014, which is yesterday. It is addressed “to whom it may concern re. Indervir Singh”, the applicant, and it says this:

   “I treated Indervir today for a mid-back injury, sustained lifting crates at work.  At this stage, I feel that it is a soft tissue injury as he is very tight through his paraspinal muscles.  I do not feel that he will be able to work for the next three days at this stage.  If you have any questions, please do not hesitate to contact me.”

4. It is signed “Regards, Catherine Heffernan”. 

5. This document was sent to the Court, but a copy was not sent to the first respondent’s office.  It clearly is not a medical certificate from a medical practitioner.  The physiotherapist that I assume created this document does not say that the applicant would be unable to come to Court to sit down and speak in Court.  It says that the physiotherapist believes that he will be unable to work for the next three days.  It is difficult to know what the physiotherapist meant by ‘work’.  We do not know what sort of work the applicant usually undertook, but clearly it does not say he could not attend Court.

6. The history of this matter before the Migration Review Tribunal shows that the applicant would not turn up at the appointed times, and he has continued that conduct here today. 

7. Mr d’Assumpcao, for the first respondent, has provided the Court with the helpful decision of MZZGY v Minister for Immigration and Border Protection[1].  It is a decision of the Federal Court with Davies J sitting and was published on 13 May 2014.  The facts of that case are very similar to the facts of the present case.  The case of MZZGY dealt with a situation similar to the one that I am presently confronted with.  His Honour had this to say: 

   “The appellant did not attend the hearing, but had notified the Court the previous day by email at 5.40pm that he would be unable to attend Court because of bad health and requesting an adjournment.  He later emailed a medical certificate and a copy of a prescription, both dated 12 May 2014, to the Court at 10.25pm.  The medical certificate simply stated:  ‘This is to certify that [the appellant] attended this clinic on Monday 12 May 2014.  In my opinion, he is unfit for work from Tuesday 13 May 2014 to Tuesday 3 May 2014 [inclusive].’”

   [1] (2014) FCA 488.

8. That was signed by the medical practitioner.  His Honour went on to say at paragraph 13: 

   “These documents were wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing.  Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment.  It’s reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice.  I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.”

9. What his Honour Davies J had to say in paragraph 13 is helpful in deciding the course that I should adopt in relation to this application for an adjournment, if I can call it that, that is currently before me. 

10. Unfortunately instances are on the increase of applicants in Migration matters failing to attend Court on the day listed but to instead at the last minute sending a note saying that, for health reasons, they are unable to attend court. This is most unfortunate trend and a complete waste of the Court’s time and resources.

11. I propose in this case to make an order pursuant to r.13.03C dismissing the application as a result of the applicant not appearing.

12. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  7 November 2014