Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1744
•22 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744
File number(s): PEG 294 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 22 July 2021 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – citizens of Bhutan – refusal of Subclass 187 (Regional Employer) visa
PRACTICE AND PROCEDURE – adjournment – where no appearance by applicants – where affidavit and bare medical certificate re illness – whether further opportunity to make submissions and appear ought to be given
Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42
Federal Circuit Rules 2001 (Cth), r 1.03
Migration Act1958 (Cth), ss 65, 476
Cases cited: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
BHG16 v Minister for Immigration and Border Protection [2018] FCA 588
Bunnag v Minister for Immigration (No 2) [2008] FMCA 430
BYF15 v Minister for Immigration and Border Protection [2016] FCA 774
CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208
EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48
Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No. 2). [2017] FCCA 190
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
Number of paragraphs: 26 Date of hearing: 22 July 2021 Place: Perth Applicants: No appearance by or for the Applicants Counsel for the First Applicant: A Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 294 of 2021 BETWEEN: YONTEN ZANGMO
First Applicant
SONAM TOBGAY
Second Applicant
UGYEN WANGCHUK DORJI (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1.The hearing of the matter be adjourned to 2 pm AWST/3.30 pm ACST on 9 August 2021 and that the Applicants have leave to appear at the adjourned hearing by any of the following means:
(a) in-person;
(b) by video link through Microsoft Teams; and
(c) by telephone.
2.The costs of today’s adjournment be reserved.
3.
The Applicants file and serve a written outline of submissions by 4pm on
30 July 2021 in relation to:
(a) the originating application for review of the Tribunal decision; and
(b) the costs of today’s adjournment.
4.The First Respondent may file and serve any further written outline of submissions by 4pm on 6 August 2021 including submissions as to the costs of today’s adjournment.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
On 5 October 2020 the first applicant, Mrs Yonten Zangmo (“Mrs Zangmo”), lodged, in the Perth Registry of this Court, an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application is made in respect of a 31 August 2020 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse Mrs Zangmo’s Subclass 187 Regional Employer Sponsored visa under s 65 of the Migration Act (“187 Visa”).
The Judicial Review Application seeks review of the Tribunal Decision which determined that the Tribunal had no jurisdiction to hear the applicants’ application to the Tribunal for review of the Delegate’s Decision refusing a Regional Employer Nomination subclass 187 Visa.
For convenience the applicants will be referred to by reference to the first applicant,
Ms Zangmo only, the other applicants’ visas being dependent upon the grant or refusal of her 187 Visa in any event.
The Judicial Review Application was filed on 5 October 2020, supported by an affidavit which simply repeats the 12 grounds in the Judicial Review Application and does not annexe the Tribunal Decision. The Tribunal Decision does appear, as it almost always does, in the Court Book. Ms Zangmo does not require an interpreter.
On 29 October 2020 an order was made by Registrar Carlton, and that order required
Ms Zangmo to file and serve any amended Judicial Review Application by 3 December 2020, also to file by 3 December 2020 any additional evidence upon which Ms Zangmo intended to rely, and by 14 days prior to the hearing Ms Zangmo to file and serve written submissions in support of the Judicial Review Application. No amended Judicial Review Application has been filed, no affidavits have been filed, and no written submissions have been filed by Ms Zangmo. And certainly in relation to the written submissions Ms Zangmo is in default of the Registrar’s order.
On Wednesday 21 July 2021 at 1.06 pm Ms Zangmo emailed Chambers and in her email indicated that she sought an adjournment of today’s hearing. She stated the following:
I am writing this email to ask for a sincere apology for failing to attend my court hearing at 10 am on 22 July 2021, Thursday, since I have been experiencing flu-like symptoms such as sneezing, cough and runny nose. Kindly accept my sincere apology. I will be highly obliged to you for the same.
which the Court took to be a request for an adjournment.
The Court responded at 3:12 pm on Wednesday, 21 July 2021 in the following terms
(and copied to the Minister’s lawyers):
Ms Zangmo
I refer to your request for adjournment of the hearing listed on Thursday, 22 July at 10 am received today.
Request For Adjournment:
Please be aware that if you are seeking an adjournment of your matter for hearing tomorrow, you will need to file an affidavit with attached dated medical certificate to explain your absence from tomorrow’s hearing by email to the Perth Registry.
Please email [and the Perth registry’s address is set out].Please find further information and relevant form at [and the relevant website for the form is set out].
Attending By Video
If you wish to attend the hearing by video link, His Honour has indicated that he will grant you leave to do so. Please confirm by way of reply to this email if you would like to proceed by video link.
The Court also notes that this morning at 8.11 am the Minister’s lawyers wrote to Ms Zangmo, indicating that if Ms Zangmo intended to apply for an adjournment she should provide up-to-date medical documentation, setting out the Minister’s position with respect to medical certificates, the basis for that position, and that the Minister may seek to have the application dismissed if Ms Zangmo did not attend and did not provide a sufficiently detailed medical certificate, and confirming that there would be an appearance for the Minister at today’s hearing by Mr Chan. The email is as follows:
Dear Ms Zangmo,
As indicated by his Honour’s Associate, if it is your intention to apply for an adjournment, please provide your most up to date medical documentation to the Court as soon as possible in the manner specified in the Associate’s email.
For your information, the Minister’s position with respect to medical certificates that justify an adjournment is that the certificate should:
- Identify the specific medical condition;
-State why that condition prevents you from attending a 2-hour court hearing, including a hearing by telephone or video. For clarity, the Minister would oppose an adjournment based on a medical certificate that merely identifies you as being unfit for work;
- Cover the period in which the adjournment is sought for;
-State clearly the name and contact details of the medical practitioner who authored the certificate, as the Minister may request that the doctor be called to give evidence.
The Minister’s above position is based on the cases of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and Singh v Minister for Immigration and Border Protection [2016] FCA 108.
If you do not provide a sufficiently detailed medical certificate and you do not attend the hearing today, the Minister may seek that your application be dismissed in your absence.
…
At approximately 8.50 am this morning there was filed in the Perth Registry an affidavit by
Ms Zangmo, the terms of which are as follows:
1.I have been experiencing flu like symptoms such as sneezing, cough and runny nose.
2.Subsequently I am of the view that it will be threat to the public health safety and myself if I attend the Court.
3.
I would like to excuse myself in attending the Court on Thursday 22 July 2021 at
10.00am
There was also a medical certificate filed (it was not specifically annexed to the affidavit,
but the Court will take it as having been annexed in the circumstances) from a Doctor Olateju Jinadu, which simply says:
This is to certify that Mrs Yonten Zangmo is unable to work from 22.7.2021 to 23.7.2021 inclusive due to a medical condition.
The Court, in response, emailed Ms Zangmo at 9.18 am this morning and indicated that:
In light of the affidavit and medical certificate emailed to chambers this morning from the applicant (see attached), the applicant will have leave to appear via Microsoft Teams for the hearing today at 10 am.
The Court then set out instructions as to the use of Microsoft Teams, and also joining the matter by telephone, and some additional procedural matters, and confirmed that the matter would proceed at 10.00 am today and invited Ms Zangmo to contact Chambers (and a telephone number was provided) if she had any questions or experienced any difficulties.
At 9.37 am Ms Zangmo responded to the email from Chambers as follows:
With regards to attending via Microsoft meeting, I have little or no knowledge about IT. I would rather prefer attending in person when I am completely well from these sicknesses.
The Court responded to this email at 9.46 am and indicated to Ms Zangmo that in the circumstances it considered it appropriate that she appear by telephone and gave her a dial-in number and a conference ID to be entered when prompted on the dial-in number, and then indicated how she would be connected and be able to take part in the hearing. The Court also indicated that should Ms Zangmo be unable to dial the Court in this manner, the Court would telephone her using the most current telephone number on file.
When the matter was called this morning, there was no appearance by Ms Zangmo. The Court had the matter called outside and there was still no appearance by Ms Zangmo. The Court notes in that respect that Ms Zangmo lives in South Perth, which is probably less than 10 minutes from the Courtroom across the Swan River, and the Court therefore had the matter called outside lest Ms Zangmo had determined in the interim to attend the hearing.
Ms Zangmo not appearing, the Court then had Ms Zangmo called by telephone on the number which appears on the Originating Application, and which also appears on her affidavit, that the Court has already referred to, which was filed this morning. The Court also notes that Chambers’ staff endeavoured to ring Ms Zangmo prior to the hearing a number of times,
and that both when she was rung prior to the hearing and also during an adjournment in the hearing she did not answer, or the telephone number that was rung did not answer.
The Court has been left in a position where Ms Zangmo has simply not appeared, either in person, by video link, or by telephone. In circumstances where her affidavit evidence indicates that the only reason that Ms Zangmo is not attending is because she considers that there would be a threat to public safety and herself if she attended the Court in view of her present illness, she has been offered alternatives, and those alternatives do not involve attendance at Court,
but she has refused the offer of a Microsoft Teams hearing and has not taken up the invitation to attend by telephone, nor answered her telephone when rung.
The Court notes that the medical certificate which has been quoted is what is described in the authorities as a “bare” medical certificate, and the Court refers to Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 at [7] per Judge Lucev where this Court said:
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence such as an adjournment needs to provide sworn evidence to the Court concerning the medical condition.
The Court then set out the authorities, they include NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774; and Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No. 2). [2017] FCCA 190 and then goes on:
In the authority handed up today by counsel for the Minister, Singh & The Minister for Immigration and Border Protection [2016] FCA 108 at 2, per Pagone J citing liberally from NAKX, those authorities also make the point that any medical certificate ought to say that the person the subject of the medical certificate is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
It suffices to observe that the medical certificate provided on behalf of Ms Zangmo is unsatisfactory and does not say why she cannot attend Court, and certainly does not indicate why it is that she could not attend virtually or by telephone.
With respect to adjournment principles, the role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss 3 and 42 of the FCCA Act and the objects in r 1.03 of the FCC Rules provide for the Court to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures; and
(e)that avoids undue delay, expense, and technicality.
See CVA17 v Minister for Immigration and Border Protection [2017] FCCA 3208 (“CVA17”) at [12] per Judge Lucev, and the cases cited therein.
In considering an application for an adjournment the Court has broad discretion in relation to whether or not it adjourns a hearing in the Court. The Court’s paramount consideration must be the interests of justice. To this end this Court has in determining adjournment applications had regard to the following principles in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, and CVA17 at [13] per Judge Lucev:
(a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any legislative purpose or object;
(b)modern principles of case management;
(c)the avoidance of undue delay; and
(d)the wastage of public resources.
See too, by way of example, the Court’s judgments in EBB17 v Minister for Immigration and Border Protection [2018] FCCA 48 and BHG16 v Minister for Immigration and Border Protection [2018] FCA 588.
The Court also notes that Ms Zangmo has not filed any submissions, contrary to the order made by the Registrar on 29 October 2020, and in that regard is in default. It must be said that that is not necessarily unusual for an applicant in migration proceedings.
The Court, having regard to all of the circumstances, in particular the requirement to ensure a just outcome in accordance, the alleged illness (and notwithstanding the bareness of the medical certificate and the failure to indicate why it is that the applicant could not attend the hearing by any of the alternative means proposed or offered by the Court), and the fact that no submissions have been filed by Ms Zangmo, nevertheless observes that these proceedings have not been protracted proceedings, unlike some of the migration proceedings presently on foot in the Melbourne Registry of the Court: see, for example, Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550. This is the first occasion on which the matter has been listed for final hearing.
The Court also notes that the matter would be in better order if the Court were to adjourn for a short period to enable:
(a)Ms Zangmo to recover;
(b)Ms Zangmo to file submissions;
(c)the Minister to respond to those submissions so that the Court is in a position where it has proper written submissions from both parties; and
(d)Ms Zangmo to become familiar, if necessary, with the information technology which would allow her to appear by video link, but also to again give her the option to appear in person or by telephone.
The Minister quite properly indicated that there is no particular prejudice in such a course being adopted by the Court, that course having been discussed by the Court with the Minister’s lawyer in the course of the hearing, and further that there is no particular prejudice that cannot be cured by additional costs for today’s hearing, if that’s appropriate. In relation to additional costs the Court refers to Bunnag v Minister for Immigration (No 2) [2008] FMCA 430, but the Court does consider it appropriate that the parties should be heard in relation to the question of the costs of today’s hearing and that is a matter that can be addressed in any written submissions.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 July 2021
SCHEDULE OF PARTIES
PEG 294 of 2021 Applicants
Fourth Applicant:
SONAM WANGYEL DORJI
Fifth Applicant:
JAMYANG THEOPELIJOR TOBGAY
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