Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 1872
•9 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1872
File number(s): PEG 294 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 9 August 2021 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – citizens of Bhutan – refusal of Subclass 187 (Regional Employer) visa – whether error of law – whether Tribunal decision unfair – whether there was denial of procedural fairness whether jurisdictional error
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 Rules2001 (Cth), rr 13.03(C)(1)(c), 16.05(2)(a)
Migration Act 1958 (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
BYF15 v Minister for Immigration and Border Protection [2016] FCA 774
CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038
Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No. 2). [2017] FCCA 190
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
MZZGY v Minister for Immigration and Border Protection [2014] FCA 488
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2014] FCCA 2537
Singh v Minister for Immigration and Border Protection [2015] FCA 138
Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521
Sullivan v Department of Transport (1978) 1 ALD 383; (1978) 20 ALR 323
Transport Workers’ Union of Australia v Wesfarmers Kleenheat Gas Pty Ltd trading as Kleenheat (1993) 73 WAIG 2480
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744
Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
Number of paragraphs: 34 Date of hearing: 9 August 2021 Place: Perth Applicants: No appearance by or for the Applicants Counsel for the First Respondent: A Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 294 of 2020 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:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The originating application filed 5 October 2020 be dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2.The Applicants to pay the First Respondent’s costs in the sum of $6500 by 9 September 2021.
THE COURT NOTES THAT:
A.An order made in the absence of a party may be subject to an application to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
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.
The Court notes that this matter was previously listed for hearing on 22 July 2021. On the day prior to that previous hearing an adjournment was sought by email by Ms Zangmo as a consequence of what she described as flu-like symptoms. Ms Zangmo was advised that if she wished to seek an adjournment, she should make an appropriate application support by an affidavit with a medical certificate.
Ms Zangmo proceeded to file what the authorities refer to as a “bare” medical certificate, saying that she was unfit and supported by an affidavit which, in essence, asserted flu-like symptoms rendering her, she said, unfit to attend Court. The Court, in response to that, offered Ms Zangmo a hearing by Microsoft Teams. That was refused, essentially, on the basis of asserted technological incapacity on the part of Ms Zangmo. The Court then offered Ms Zangmo a hearing by telephone but when Ms Zangmo was invited to call in, she failed to do so, and when she was called on the day, she did not respond: see Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744 at [6]-[14] per Judge Lucev (“Zangmo (No 1)”).
Orders were made on 22 July 2021 as follows:
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.
The Court notes that Ms Zangmo was required to file and serve a written outline of submissions by 4 pm on 30 July 2021 in relation to the originating application for review of the Tribunal decision and the costs of the adjournment on 22 July 2021 and no submissions were filed.
The Court should add at this point, that when it refer to “Ms Zangmo” it is generally referring to Ms Zangmo, who is the first applicant, but also where necessary to the other applicants in the proceedings whose visas depend upon the success or otherwise of Ms Zangmo’s application for the 187 Visa.
That brings the Court to today. Today at 9.39 am Ms Zangmo sent an email to the Chambers of the presiding judge, the terms of which were relevantly as follows:
I am extremely sorry for not attending my last court appearance due to the contagious sickness. Today, I am writing to you to inform you that I am not fully recovered from the same symptoms. This flu like symptoms have been clinging on to me for the past several weeks. Hence, I am of the view that it will be threat to the public health safety and myself. Also my deep apologies for inability to attend via voice as well as video conferencing due to fever, sneezing and runny nose.
Kindly accept my deep apology. I will be really thankful for your understanding and consideration.
Please find enclosed the affidavit and medical certificate for your ready reference.
Ms Zangmo also caused to be filed today, an affidavit, in terms as follows:
1.I have been experiencing flu like symptoms such as sneezing, cough and runny nose for a whole week this week, and have not been able to prepare my submissions.
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 9 August 2021 at 2pm AWST as well as excuse myself from telephone conferencing due to high fever and coughing.
4. I am seeking final and last adjournment with my apologies.
The Court notes that the affidavit sworn today was, or was purported to be, sworn before a Justice of the Peace, presumably sometime earlier today, and sometime before it was filed on or about 9.39 am – or at least attached to the email which was sent in at 9.39 am. And also annexed to that email was another bare medical certificate, bearing, as the Minister’s lawyer has pointed out, today’s date. The Court also notes that it is from a different practitioner to the practitioner who provided a bare medical certificate on the last occasion, that is 22 July 2021. The bare medical certificate provided today is for today’s date only as to Ms Zangmo’s unfitness, again, simply for work, and there is no indication as to any unfitness on the part of Ms Zangmo by the relevant medical practitioner for a day other than today. Ms Zangmo does, in her affidavit, refer to a slightly more extended period of illness but the Court will address this later in these Reasons for Judgment.
It is also apparent from paragraph three of Ms Zangmo’s affidavit that she does not wish to appear by telephone.
The Court pauses to observe that by 9.39 am this morning, a person who is apparently unfit for work was able to, seemingly see a medical practitioner, prepare an affidavit, and have the affidavit sworn before a Justice of the Peace, and write an email to the Court endeavouring to explain why it was that she seeks not to appear today. The Minister responded to the 9.39 am email from Ms Zangmo by email to Chambers at 10.29 am relevantly as follows:
We confirm that the Minister opposes any adjournment of today’s hearing. As with the previous medical certificate, the most recent certificate does not provide sufficient detail to justify an adjournment because it:
- Does not identify the specific medical condition;
-Does not state why the unspecified medical condition prevents the applicant from attending a 2-hour court hearing, including a hearing by telephone or video. Rather, it simply states that the applicant is unfit for work;
-Does not identify the applicant’s purported symptoms of “high fever and coughing”. The certificate would appear to contradict the applicant’s narrative of her severe symptoms given she was certified as unfit for work for only one day, namely today; and
-Does not state why the applicant would be “unfit for work” today, when she was able to attend a medical examination today to obtain the certificate.
In the event that the applicant fails to appear at today’s hearing, whether by telephone, video or otherwise, the Minister will seek for the matter to be dismissed in her absence. Dismissal would be justified in the circumstances because, as has frequently been observed in the Courts, instances of last minute adjournment applications based on questionable medical evidence are on the rise in Migration matters, which is a “most unfortunate trend and a complete waste of the Court’s time and resources”: see Singh [2014] FCCA 2537 at [10]; Singh [2015] FCA 138 at [18]-[22].
The Court responded to the emails from both Ms Zangmo and the Minister by indicating that the matter remained listed for hearing today at 2 pm AWST and that the Court had had regard to Ms Zangmo’s circumstances and considered it appropriate that Ms Zangmo appear by telephone at the hearing, and provided a number on which she was able to dial in to attend the hearing and indicated that should she be unable to dial in, the Court would telephone her on the most current telephone number it had for her. The Court’s response to both Ms Zangmo and the Minister’s lawyers was relevantly as follows:
RE: PEG294/2020 – ZANGMO v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Mr Chan, I confirm receipt of your correspondence below [this being the Minister’s response of 10:29am].
Please note that the matter remains listed for 2pm AWST today.
His Honour has had regard to the applicant’s circumstances and considers it appropriate that Ms Zangmo be contacted by telephone at the hearing.
The Applicant can dial [the Microsoft Teams telephone dial-in number] and, when prompted, enter the Conference ID (172 809 377#). You will then be connected and admitted to the virtual lobby and can take part in the hearing by telephone.
Should the Applicant be unable to dial the Court in this manner, the Court will telephone the Applicant on their most current phone number on file.
When the matter was called outside of the Court today, there was no appearance by Ms Zangmo and that, in the circumstances, is probably unsurprising.
When Ms Zangmo did not appear in person, and bearing in mind that she had not phoned in on the telephone dial in number provided by the Court, the Court, during a short adjournment,
had Ms Zangmo called by telephone on the number which appears on the originating application, which also appears on the affidavit filed today that the Court has already referred to – or which was attached to the email sent in today - a call which elicited no answer.
The Court has, as it was on 22 July 2021, been left in a position where Ms Zangmo has simply not appeared either in person or, on this occasion by video link or by telephone, as offered in the Orders made on 22 July 2021.
Once again, in circumstances where the affidavit evidence indicates that the only reason
Ms Zangmo has not attended is because of the illness and her assertion that it might constitute a threat to public safety if she attended, and where those alternatives offered do not involve attendance at Court, the Court notes that those alternatives provided a proper alternative means for a person in these circumstances to attend the hearing.
The Court also notes – slightly out of sequence – that Ms Zangmo, at 12.13 pm this afternoon, emailed Chambers and set out a three point assertion as to why she ought not to have to appear today and also why the bare medical certificate is sufficient and seemingly suggesting what the Court ought to do in terms of having her medically examined.
The 12:13 pm email from Ms Zangmo was relevantly as follows:
The fact is that I have been very sick and could not do anything simply and I am telling the truth.
1.In general, all medical clinics have a typical way of issuing medical certificates, mostly "unfit for work", and they don’t illustrate detailed medical conditions due to privacy as well as other factors.
2.If the Court orders a very detailed medical examination I will be willing and happy to do so by the specialists.
3.I am not trying to avoid the Court hearing and have no reason to avoid it. Simply, I am very sick and can not do it.
At this stage I am not fit for even attending a telephone conference, probably it could be Covid 19 or delta variant….
It suffices, once again, to observe that the medical certificate (by a different medical practitioner on this occasion to the medical certificate produced on the first occasion that this matter was listed for hearing) provided by Ms Zangmo, is unsatisfactory in that it does not say why she cannot attend Court and certainly does not indicate why it is she could not attend virtually or by telephone and, as the Minister’s lawyer has correctly stated, simply does not indicate what condition she is said to be suffering from, any symptoms that she might have,
or any treatment that she might be undergoing which might affect her capacity to attend a Court hearing.
The Court notes that Ms Zangmo has not filed her submissions which were due to be filed
14 days prior to hearing, originally, so that would have been on or before 8 July 2021. Nor has she taken up the opportunity afforded by the Registrar’s Orders of 29 October 2020 to file and serve any amended application, or any affidavit containing additional evidence, which she was required to do by 3 December 2020. For the second time she has now failed to file submissions, as she was more recently required to do by the Court’s Orders of 22 July 2021, wherein Order 3 required those submissions to be filed by 30 July 2021. In respect of neither occasion is there any evidence that at the relevant time Ms Zangmo was ill or incapacitated in a manner which would prevent her from filing those submissions. Specifically with respect to the submissions due to be filed by 30 July 2021 as ordered by the Court, Ms Zangmo’s 9 August 2021 affidavit at paragraph 1 refers to her having been:
Experiencing flu like symptoms such as sneezing, cough, and runny nose for a whole week this week and have not been able to prepare my submissions.
Assuming that that was a reference, the affidavit having been sworn today, to last week, that is the week commencing 2 August 2021, that does not explain in any way shape or form why the submissions which were required to be filed by 30 July 2021 were not filed. In relation to the principles with respect to the adjournment of proceedings, the Court refers to Zangmo (No 1) at [21] -[22] per Judge Lucev, as follows.
21.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.
22.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 the cases which have been referred to by the Minister in the email forwarded today. These are Singh v Minister for Immigration and Border Protection [2014] FCCA 2537 (“Singh 2014”) at [10] per Judge Simpson and Singh v Minister for Immigration and Border Protection (“Singh 2015”) [2015] FCA 138 at [18]-[22] per Perry J.
In Singh 2014 this Court in its written reasons for judgment, having dealt with the facts
(and the Court will come back to the facts in a moment in the context of Singh 2015) observed as follows:
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.
It might be observed that in the succeeding seven years from the observations of the Court as presently constituted sitting on cases in both Perth and some Melbourne based cases not much has changed.
In Singh 2015 at [17]-[23] per Perry J, the Federal Court, on an application for leave to appeal from Singh 2014, set out the relevant factual matters and legal principles and cases before finding that the application for leave to appeal ought to be dismissed, as follows.
17.Nor in any event do I see any error in the decision of the Court below in refusing what the primary judge correctly treated as an application for an adjournment, being a one page document headed “Henley Beach Physiotherapy” dated the day before the hearing. In order to establish error, it would be necessary for the applicant to establish that the exercise of discretion by the primary judge had miscarried in the sense identified in House v R (1936) 55 CLR 499 at 504-505, namely:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
18.However no such error is identified or apparent from the reasons of the Federal Circuit Court. First, the Court below had regard to the fact that the document from Henley Beach Physiotherapy was not a medical certificate from a medical practitioner, does not state that the applicant would be unable to come to Court to sit down and speak in Court, and does not explain what is meant by the opinion expressed that the applicant would be unable to work for the next three days. In so holding, his Honour considered the case to be closely analogous to that in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488. In that case, a late adjournment application was accompanied by similarly deficient documents. In the passage particularly relied upon by the Court below, Davies J held at [13]: notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.
19.Secondly, the Court below also had regard to the failure by the applicant to turn up at the appointed time before the Tribunal.
20.The Court’s reasons for refusing the adjournment are unexceptional in my view and provide an ample basis for refusing the adjournment.
21. Finally, the primary judge stated at the end of his reasons at [10] that:
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 [sic] a note saying that, for health reasons, they are unable to attend court. This is most [sic] unfortunate trend and a complete waste of the Court’s time and resources.
22.In this regard, I do not read these observations as indicating that his Honour did not properly turn his mind to the individual circumstances of the case before him in deciding to refuse the adjournment application, but rather as properly identifying the difficulties which late applications of this kind may cause.
23.For these reasons the application for leave to appeal should be dismissed with costs. Costs should be set in the amount of $2,000 so as to include costs thrown away by reason of the late adjournment application
The Court simply observes that there have been numerous other cases since 2014-2015 in relation to not dissimilar factual circumstances and where similar outcomes have followed.
The Court also notes the reasons for judgment in Zubair v Minister for Immigration and Border Protection [2017] FCCA 290 (“Zubair”) at [7] per Judge Lucev (quoted in Zangmo (No 1) at [18] 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 & 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.
In Zubair at [7] per Judge Lucev, the Court went on, as follows:
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.
The Court is also cognisant of the fact that there are presently several thousand migration cases in the Sydney and Melbourne Registries of this Court which are not yet allocated to a judge for hearing, and which date back to cases filed in 2015 and 2016, and in respect of which the Court is presently drafting judges from other Registries, including the Perth Registry, who are being allocated those cases in an endeavour to clear that backlog.
In this matter, the Court makes the following further observations:
(a)Ms Zangmo has twice failed to attend in person, electronically or telephonically, the two hearings which have been listed for final hearing on 22 July 2021 and today;
(b)on both occasions, Ms Zangmo has:
(i)
requested an adjournment at late notice, metaphorically at the
“last minute”; and
(ii)supported her adjournment request on each occasion by a bare medical certificate;
(c)
her assertion that this is the way doctors typically issue medical certificates does not assist her given the state of the authorities that the Court has referred to.
The federal courts require doctors to explain in detail why it is that a person cannot attend: see, for example, the authorities cited at [29] and [30] above (which were also cited in Zangmo (No 1) at [18]-[19] per Judge Lucev);
(d)
it is not for the Court to order a very detailed medical examination of
Ms Zangmo by a specialist in order to justify any action that it takes. It is for Ms Zangmo to provide that evidence to the Court in proper form, a position that she is well aware of by reason of:
(i)correspondence from the Minister prior to the first hearing and set out in Zangmo (No 1) at [8] per Judge Lucev, as follows:
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.
and
(ii)the Court’s judgment in Zangmo (No 1) in [18]-[20] per Judge Lucev, citing Zubair and the cases therein referred to: as to which see [29]-[30] above;
(e)there is no evidence that Ms Zangmo has undertaken a COVID-19 test nor any assertion that Ms Zangmo actually has COVID-19 or that she is actually in isolation. The Court notes firstly that there is presently no lockdown in Western Australia or any particularly onerous restrictions in relation to COVID-19 that the Court is presently aware of other than the usual admonitions as to social distancing, washing of hands, and the voluntary, if people are so minded, wearing of masks. Secondly, the Court notes in particular that:
(i)assuming that the doctor concerned did issue the medical certificate today as a consequence of an examination of Ms Zangmo, that she has been out and about attending a doctor’s surgery today;
(ii)that a Justice of the Peace has witnessed her affidavit, the usual requirement being that that be done “before” the witness, which means in person before the witness (that is the Justice of the Peace): Transport Workers’ Union of Australia v Wesfarmers Kleenheat Gas Pty Ltd trading as Kleenheat (1993) 73 WAIG 2480;
and which means that before 9.39 am this morning, Ms Zangmo has been out in the community and seen at least two people and attended a doctors’ surgery;
(f)
Ms Zangmo has been capable of preparing an affidavit, having it witnessed,
and organising a doctor’s appointment, all of which appear to have been done quite professionally, particularly the preparation of the typed affidavit, and also corresponding with the Court on two occasions earlier today, and yet she says she is not well enough to attending a hearing, even by telephone,
(g)the Court is under significant pressure to hear and determine the outstanding Sydney and Melbourne migration cases that it has referred to above, and that pressure extends to judges in other Registries, including the Perth Registry, who, in the last month, have been dealing with those Melbourne cases dating from as early as 2015 and who will continue to do so, it appears, well into the future;
(h)in the context of the pressure on the Court to hear and resolve the migration cases referred to above, this matter has now been listed for a second time for final hearing and for the second time the final hearing has not proceeded to a determination of the judicial review application because of a “last minute” request for adjournment by Ms Zangmo;
(i)if the matter were to be subject to further adjournment now, it would not be able to be heard by the Court, at least as presently constituted until the first week of March 2022. That is a further delay of some seven months and there would be no guarantee that Ms Zangmo would then attend or would file written submissions and, in those circumstances, further delay is not tolerable;
(j)the Court notes, again, that Ms Zangmo has not filed submissions on either occasion when ordered to do so, namely, by the Registrar on 29 October 2020 and by the Court on 22 July 2021, and there is no medical evidence indicating any illness in respect of the due dates for the filing of those previous submissions which would indicate that Ms Zangmo was not able to file them by the due dates;
(k)Ms Zangmo also, the Court notes, failed to file written submissions when invited to do so by the Tribunal in relation to its finding that it had no jurisdiction to hear the application to the Tribunal for merits review and the Court refers to the Tribunal decision: CB 70 at [4];
(l)in all the circumstances:
(i)Ms Zangmo has been given an adequate opportunity to present her case both by way of submissions, twice, and appearance, twice, and has failed to avail herself of any of the opportunities so provided. It is not for the Court to ensure that Ms Zangmo makes best use of the opportunities provided to present her case: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038 at [18(b)] per Judge Lucev;
(ii)further delay in the hearing of this matter is neither tolerable nor appropriate; and
(iii)further wastage of public resources, both of the Court’s resources and of Commonwealth’s resources (and, ultimately, therefore the taxpayers’ resources by reason of the Minister’s ongoing involvement), is neither tolerable nor appropriate, notwithstanding that to some extent the Minister’s cost in the proceedings may be recoverable;
(m)that in all the above circumstances, the interest of justice as between the parties: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, and the interest of the administration of justice, which include the management of the proceedings by the Court: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM, do not warrant a further adjournment of these proceedings.
(n)that Ms Zangmo would not be prejudiced to an undue degree by these proceedings being dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”) for non-appearance because, pursuant to r 16.05(2)(a) of the FCC Rules, she can apply to set aside a non-appearance dismissal order, but would, of course, be required to file appropriate material in relation thereto in order to justify the setting aside of such an order, as well as persuading the Court that the merits of the case on an appropriate level of assessment justified the setting aside of the dismissal non-appearance order: Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 at [19] per Lucev FM.
In the circumstances set out above the Court is of the view that:
(a)no adjournment should be granted to Ms Zangmo;
(b)the matter should be treated as one of non-appearance;
(c)as a consequence of (b), there will be an order pursuant to r 13.03C(1)(c) of the FCC Rules dismissing the matter for non-appearance;
(d)it follows that Ms Zangmo should pay:
(i)the costs of the adjournment on 22 July 2021; and
(ii)the costs of today’s final hearing.
The Court is satisfied that the sum which is sought by the Minister which is a global sum of $6500, which the Court notes is less than the scheduled sum for a final hearing of $7467, and which, in the circumstances, must include some sum for the adjournment and is therefore a sum which is easily justifiable, ought to be paid by Ms Zangmo to the Minister, by 9 September 2021, and there will be an order accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 9 August 2021
SCHEDULE OF PARTIES
PEG 294 of 2020 Applicants
Fourth Applicant:
SONAM WANGYEL DORJI
Fifth Applicant:
JAMYANG THEOPELIJOR TOBGAY
1
19
0