Tang v Minister for Immigration
[2017] FCCA 2885
•30 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TANG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2885 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – no appearance by the Applicant at the hearing – request for adjournment – medical certificate – inadequate explanation for failure to appear – application dismissed for non-appearance. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) Migration Regulations 1994 (Cth), cl.801.221 |
| Cases cited: MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 |
| Applicant: | NGOC NGA TANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 843 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 30 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2017 |
REPRESENTATION
| The Applicant: | No Appearance |
| Solicitor for the First Respondent: | Ms Stone |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The costs order made 12 October 2017 is set aside.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 843 of 2016
| NGOC NGA TANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed under the Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the AAT’) dated 14 April 2016. The AAT affirmed a decision by a delegate of the First Respondent not to grant the Applicant a Partner (Residence)(Class BS) Subclass 801 visa (‘the visa’).
The Applicant applied for the visa on 20 April 2011 on the basis of her relationship with her sponsor, an Australian citizen. A delegate of the Minister refused to grant the visa on the basis that the Applicant did not satisfy cl.801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because the delegate was not satisfied that there was sufficient evidence to demonstrate that the Applicant and sponsor were in a genuine spousal relationship.
The AAT, differently constituted, affirmed the decision of the delegate on 26 February 2015. The Applicant applied to the Court for judicial review of that decision, and on 16 September 2015, the matter was remitted to the AAT by consent.
The Applicant appeared before the present AAT on three occasions, being:-
a)on 21 January 2016, wherein the Applicant advised the AAT that the sponsor had gone missing, as his business had failed. The AAT adjourned to give the sponsor an opportunity to attend a hearing on another occasion, after which time the Applicant would have time to report the sponsor as missing to the police;
b)on 16 March 2016, however, the sponsor again did not appear, although the AAT thought he had returned. The Applicant claimed she was not able to get the sponsor to attend, because, when he was affected by drugs, he would not listen to her; and
c)on 4 April 2016, the Applicant appeared at a further adjourned hearing without the sponsor. The Applicant’s sister-in-law gave evidence at the hearing. The Applicant sought more time to support her husband, and the AAT noted that her providing assistance to the sponsor did not prevent her from providing the additional information that was required to demonstrate that she and the sponsor were still in a genuine and continuing relationship at the time of the decision.
The AAT found the Applicant was not the spouse of the sponsoring partner in accordance with cl.801.221(2)(c) of the Regulations, and did not satisfy the criteria for the grant of the visa. The matters going to the Tribunal’s decision are accurately set out in the First Respondent’s outline of submissions, which were filed in these proceedings on 9 November 2016.
The Court notes the Applicant also filed contentions of fact and law in the proceedings on 19 October 2016. Additionally, the Applicant participated in the proceedings by entering into consent orders as to procedural matters on 14 September 2016.
By orders made by Registrar Buljan on 14 September 2016, the matter was listed for final hearing at 2.15pm on 18 October 2017 before me. On 13 September 2017, the parties were advised that the matter had been relisted to 12 October 2017 at 2.15pm. On 11 October 2017, the Applicant contacted the Court to advise that she was unable to attend the hearing “due to my sickness and medical certificate is attached for your attention”.
The attached medical certificate was from Northland Medical and Dental Centre and certified that the Applicant:-
“is receiving medical treatment and for the period Wednesday 11 October 2017 to Thursday 12 October 2017 inclusive. She will be unfit to continue her usual occupation.”
The certificate was completed by Dr Thusitha Welendawe.
The adjournment request of the Applicant was forwarded to the First Respondent’s solicitors by the Court.
The matter remained listed and the Applicant was given liberty to appear by telephone. The First Respondent opposed the Applicant’s adjournment request. The Court noted, that in its attempts to contact the Applicant on the mobile phone number provided in her initiating application, the Court was unable to contact the Applicant, as the phone number appeared to be disconnected.
On 12 October 2017 at the 2.15pm listed hearing time, the Court adjourned the proceedings to 30 October 2017 at 10.00am and otherwise ordered:-
“2. The First Respondent’s costs are fixed in the sum of $300 and reserved.”
On the adjourned hearing date, being this day, 30 October 2017, the Court received a further adjournment request from the Applicant. That request was made on the basis, again, that the Applicant was unable to attend the hearing:-
“due to my sickness. A medical certificate is attached for your attention.”
The medical certificate from Richmond General Medical Centre certified that the treating practitioner had examined the Applicant on 27 October 2017 and stated as follows:-
“In my opinion she is/was suffering from a medical condition. She will be/was unfit for work/school from Friday, 27 October 2017 and up to and including Tuesday, 31 October 2017.”
The certificate was provided by Dr Cuc Nguyen, general practitioner.
The Applicant did not appear at the hearing, and nor did the Applicant seek to appear by telephone. The matter was called on in the usual way.
Each of the medical certificates that have been submitted are entirely unsatisfactory. They do not assist the Court in determining whether the Applicant is unable to attend Court. Neither of the certificates describe the medical condition from which the Applicant is said to be suffering and why it was that such condition would have the effect of precluding the Applicant from an ability to attend Court. The medical certificates, on their face, do not persuade the Court that the Applicant is, in fact, unable to attend Court on the hearing of this matter.
The Court notes that two doctors have provided certificates from two different medical centres for the Applicant in respect of the Applicant’s alleged inability to attend her respective Court hearing dates.
I refer to the decision of Pagone J in MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 in which His Honour gave consideration to a similar medical certificate. His Honour referred to the decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and said:-
“The case indicated that what needs to be provided, for a certificate to be meaningful, is material that establishes why it is, or how it is, that an appellant suffering from a medical condition would be unfit for participation at a hearing in court. A description such as “unable to attend court”, as his Honour considered in that case, was unsatisfactory. The more generalised description of Dr Qazi in this case of the appellant having “lower back pain” is even less satisfactory. It does not assist the court to evaluate why it is or how it is that his condition would prevent the appellant to attend court, and it does not help the patient, the appellant, in making the case that he needs to make. Doctors providing certificates of this kind assist nobody, although, of course, there is no reason to assume that what is needed has been brought to their attention.”
On the last occasion the matter was before the Court, the Court gave the Applicant the benefit of the doubt and adjourned the proceedings to this date. The Applicant had participated in the proceedings to the extent of filing written submissions and had not previously sought an adjournment of the proceedings. The medical certificate was equally deficient, but the Court determined to adjourn the matter out of an abundance of caution.
In these circumstances, the Court rejects the application for an adjournment and shall deal with the matter on the basis upon which the First Respondent has urged the Court to do, which is to dismiss the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). Costs shall follow.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 23 November 2017
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