Zhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 810
Federal Circuit and Family Court of Australia
(DIVISION 2)
Zhu v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedcFamC2G 810
File number(s): BRG 493 of 2020 Judgment of: JUDGE EGAN Date of judgment: 4 October 2022 Catchwords: MIGRATION – where the first applicant was granted medical certificates as the foundation for the making of adjournment applications – where medical certificates had been granted on a false premise – where medical practitioner misled – where the Court was misled – where medical practitioner called before the Court to provide explanation for issue of medical certificates – where further application for adjournment of final hearing refused. Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 4 October 2022 Date of hearing: 4 October 2022 Place: Brisbane The Applicants The Second Applicant appearing on behalf of the Applicants. Solicitor for the First Respondent: Ms Allen of Sparke Helmore ORDERS
BRG 493 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YANAN ZHU
First Applicant
MR JAMES LEE
Second Applicant
MISS JASMINE LEE
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
4 OCTOBER 2022
THE COURT ORDERS THAT:
1.The First Applicant’s application for an adjournment of the hearing listed for 5 October 2022 be refused.
2.The costs of and incidental to today’s hearing be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
An Originating Application for Review was filed in this proceeding on 2 September 2020.
By order of this Court made on 4 June 2021, the matter was listed for hearing on 2 August 2021. After the production by first applicant to Judge’s Chambers of a medical certificate dated 30 July 2021, in which it was stated that the first applicant “ … will be unfit to attend court hearing on Monday 02/08/2021. ” [1] because of Covid-19 symptoms, the matter was adjourned for final hearing to 12 October 2021.
[1] Exhibit 1
On 7 October 2021, the first applicant emailed to Judge’s Chambers another medical certificate dated 5 October 2021 which again stated that the first applicant “ … will be unfit for duty or attend court hearing from 05/10/2021 to 31/12/2021 inclusive.”. [2] On 12 October 2021, the Court adjourned the matter for final hearing to 2 February 2022.
[2] Exhibit 2
On 24 January 2022, the first applicant emailed to Judge’s Chambers another medical certificate dated 24 January 2022 which again stated “ … She was and will be unfit for duties including any court hearing from 24/01/2022 to 31/03/2022.” [3] On 2 February 2022 the matter was adjourned for final hearing to 13 April 2022.
[3] Exhibit 3
On 1 April 2022, the first applicant emailed to Judge’s Chambers another medical certificate dated 28 March 2022 which said “ … As a result, she will be unfit for duties or attending Court hearing in the next six months.”. [4] On 5 April 2022, the Court adjourned the 13 April 2022 hearing date to 5 October 2022.
[4] Exhibit 4
On 26 September 2022, the first applicant emailed to Judge’s Chambers another medical certificate dated 26 September 2022 which said “ … As a result, she will be unfit for duties or attending court hearing in the next six months.” [5]
[5] Exhibit 7
The same general medical practitioner had caused each of the above medical certificates to be issued to the first applicant since July 2021, namely one Dr Du of the Christine Avenue Bulk Billing Medical Centre situated at Varsity Lakes to the north of Brisbane.
In the face of further objections from the lawyers for the first respondent concerning a contemporaneous request for an adjournment of the 5 October 2022 hearing date which had been made by the first applicant, the Court listed the matter for directions on 29 September 2022.
On 29 September 2022, the first applicant did not appear, but the second applicant, the first applicant’s husband, did appear. Ms Allen appeared at the directions hearing as the lawyer representing the first respondent. During such directions hearing, the prospect of the Court ordering that Dr Du appear before the Court to explain the bases upon which the said medical certificates had been issued was raised with Ms Allen, who indicated that if the Court was to order such attendance, then she would seek to ask questions of Dr Du. After argument, the Court made orders follows:
“IT IS ORDERED THAT:
1.Dr Jennifer Du, of the Christine Avenue Bulk Billing Medical Centre, situated at 221 Christine Ave Varsity Lakes Qld, personally appear before His Honour Judge Egan of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) at 9.45am on 4 October 2022 at Brisbane for the purpose of Dr Du being examined as to why it has been expressed by Dr Du, on several occasions, that the First Applicant, due to Covid symptoms, would be unfit to appear before the Court, and specifically, why the first applicant could or could not appear before the Court, via a Microsoft Teams link, for the hearing, Scheduled for 5 October 2022.
2.A Transcript of this Proceeding be prepared with urgency.
3.Service of this Order be effected upon Dr Du by the First Respondent, by his lawyers:
(a)Emailing a sealed copy of the order to Dr Du at the reception of the Christine Avenue Bulk Billing Centre; and
(b) Personally delivering a copy of such order to Dr Du.
4.The matter be adjourned to 9:45am on 4 October 2022.
5.Each party have liberty to apply on the giving of (2) days’ notice, each to the other.
6.The costs of today’s hearing be reserved.”
At 9.45 am this morning, Dr Du personally appeared at Court. It was noted by the Court that notwithstanding that she had been given the opportunity to appear before the Court by Microsoft Teams from her medical practice, Dr Du had elected to appear in person. She did so having conferred with Mr Little of Counsel who indicated that though he did not seek to appear on Dr Du’s behalf, he was instructed to be present in Court as an observer to the hearing.
When asked if she was prepared to answer questions put to her by either Ms Allen or the Court, Dr Du replied that she was. Dr Du then made an affirmation and was asked questions concerning her treatment of the first applicant’s alleged Covid symptoms. During the course of her giving answers to questions put to her by Ms Allen, and in a way quite non-responsive to such questions, it was revealed by Dr Du that the first applicant had been a patient of hers since March 2019, and that from the commencement of such consultations, the first applicant had, on an ongoing basis, represented to Dr Du that she was a qualified lawyer.
Dr Du stated that though she had had approximately 20 consultations with the first applicant from 30 July 2021 until the present time, and though the first applicant had undertaken a number of blood tests and other procedures over such period, Dr Du had been unable to arrive at any conclusion as to why the alleged Covid symptoms had persisted.
Dr Du said in her evidence that the first applicant had only been given medical certificates which stated that she was unfit to appear in Court on the basis that the first applicant had represented to her that her symptoms were ongoing, and that as a lawyer who was required to function at a high intellectual level, it was inappropriate for her to seek to carry out the duties of a lawyer in Court when suffering such symptoms. Indeed, Dr Du stated that at the time of her having first been consulted by the first applicant, the first applicant had provided her with a business card which on its face represented that the first applicant was a lawyer. Dr Du also stated that she had recently read a report from a medical specialist who had treated the first applicant, wherein it was recorded by such specialist that the first applicant was a lawyer.
It being obvious to Dr Du from a reading of the Court order which had been served upon her that rather than the first applicant being a lawyer, she was in fact a litigant in migration appeal proceedings (proceedings involving the refusal of her visa application to work in Australia as a café/restaurant manager), the Court questioned Dr Du as to whether or not she now felt that she had been misled by the first applicant. Dr Du agreed that she had been misled. When asked by the Court if the first applicant had been able to physically attend at Dr Du’s medical practice and effectively communicate with Dr Du on each of the occasions that she had visited the practice since 30 July 2021, Dr Du replied that she had been physically and mentally able to do so. When further asked by the Court if the first applicant would be able to effectively appear at the scheduled final court hearing date on 5 October 2022, either personally or by Microsoft Teams, Dr Du said that the first applicant would be so able. Dr Du drew a distinction between the first applicant appearing in Court as a litigant with the level of alleged symptoms complained of, as opposed to her being required to appear in Court as part of her duty as a lawyer.
During the course of the questioning of Dr Du by the second applicant, namely the first applicant’s husband, Dr Du said that in the light of her having found no cause to explain the first applicant’s ongoing alleged Covid symptoms, Dr Du started to consider whether there existed another basis for such claimed symptoms.
There being no basis on which the Court could reasonably doubt the evidence of Dr Du, the Court finds that the first applicant has, by her actions, deliberately misled not only her treating general practitioner, but also the Court. By being persuaded to adjourn Court hearings based upon a false premise, deliberately advanced by the applicant with the unwitting assistance of Dr Du, not only has the due administration of justice been circumvented, but the Court has also lost the opportunity to efficiently hear and determine other cases of merit in what is a very busy jurisdiction.
The application for the adjournment of the hearing listed for 5 October 2022 is refused.
The Court reserves the question of the costs of today’s hearing, and those of the hearing on 29 September 2022, to the hearing on 5 October 2022.
The Court will consider whether it is appropriate to send a copy of these reasons to the President of the Queensland Law Society for consideration by that body as to whether any further action ought to be taken.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 October 2022
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