FEDERAL COURT OF AUSTRALIA

Uppal v Minister for Immigration and Border Protection [2014] FCA 852

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs fixed in the sum of $1,665.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Court was to hear today an appeal against a decision of the Federal Circuit Court dismissing the appellants’ application for review of a decision of the Migration Review Tribunal (MRT) of 17 September 2013. However, the appellants have not attended Court, and the Minister seeks the summary dismissal of the appeal.

2    The MRT had affirmed the decision of a delegate of the Minister to refuse to grant a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) to the first appellant. The Minister’s delegate had refused the visa because the appellants had not satisfied the requirements of Public Interest Criterion 4005 (PIC 4005), namely, establishing that they had satisfactory health.

3    The first appellant was the primary visa applicant. The second and third appellants, being his wife and daughter, were the secondary applicants. All are citizens of India.

4    PIC 4005 required, as a minimum, that the appellants undergo medical and X-ray examination. The appellants’ attention was drawn to that requirement, but they had not undertaken such an examination.

5    The MRT hearing at which the appellants were invited to attend to present evidence and submissions was scheduled for 17 September 2013. The appellants were advised of that hearing by letter from the MRT on 20 August 2013. However, they did not attend the hearing and did not, so far as the papers reveal, provide the MRT with any explanation for their failure to do so.

6    The appellants’ application under s 476 of the Migration Act 1958 (Cth) was scheduled for hearing in the Federal Circuit Court on 24 April 2014. The appellants did not attend at that hearing. It seems instead that, on the morning of 24 April 2014, the first appellant sent a certificate of sickness to the Circuit Court, that certificate arriving just before commencement of the hearing. The Circuit Court Judge then adjourned the hearing to 9 May 2014, and the appellants, or at least the first appellant, did attend at that hearing. The Circuit Court Judge dismissed the application for review, making a positive finding that the MRT decision was not affected by jurisdictional error.

7    The appellants were advised on 25 June 2014 that their appeal to this Court would be heard today (8 August 2014). Earlier, the appellants had been warned that their appeal would be heard in the month of August and were provided with a copy of the directions made by the Registrar with respect to the appeal, including directions concerning the provision of a written outline of submissions. Despite this, the Court has not received any outline of submissions from the appellants. As already indicated, the appellants have not attended today.

8    Yesterday, 7 August 2014, just after 5 o'clock, the Court’s Registry received a facsimile, apparently from the first appellant. After giving his name and the action number relating to these proceedings, the facsimile message continued:

Dear, sir, I am sick, not able to attend hearing. Please postpone the hearing. I kindly request postpone my hearing. Thanks.

9    Attached to that facsimile message was a copy of a certificate of sickness dated 6 August 2014, apparently issued by Dr Nahar at the Berri Medical Clinic in Cornwall Street, Berri. In that certificate, Dr Nahar certifies:

This is to certify that I have today examined Mr Ravinder Singh Uppal.

In my opinion he/she will be unfit for his/her normal work from 06.08.14 to 10.08.14 inclusive.

Dr Nahar’s certificate also included Mr Uppal’s date of birth and address, which I note is a Renmark address.

10    Accordingly, it can be inferred that the appellants have not attended here today on the basis of Mr Uppal’s claimed ill health and that instead they seek an adjournment of the hearing.

11    The MRT has filed a submitting notice in the proceedings, but the Minister, who is represented by counsel, opposes the grant of an adjournment. The Minister refers to a number of features by way of opposition. First, the lateness of the provision of the certificate of sickness. Not only is it late in the sense of being provided after close of business yesterday, it was not provided on the date that the certificate itself bears, namely 6 August 2014. The Minister submits, in effect, that the lateness of the provision of the certificate might be seen as an attempt by the first appellant to force the hand of this Court to grant the adjournment which he seeks.

12    Secondly, the Minister points to a number of features of the certificate: it does not refer at all to the hearing in this Court this morning, certifying only to an unfitness for work; it does not identify the condition or conditions which are said to make Mr Uppal unfit for work; and Dr Nahar does not express any opinion at all to the effect that the appellants are unable to attend the hearing here today.

13    Counsel for the Minister also draws attention to the circumstance that the appellants had also, at the last moment, sought an adjournment of the proceedings in the Federal Circuit Court, again for reasons of ill health. The submission seemed to be that that circumstance should give rise to some circumspection by the Court presently about accepting the bona fides of any claimed inability of the first appellant to attend here today. It is perhaps a surprising coincidence that, on the occasion of two separate hearings, the first appellant has become unable to attend by reason of ill health arising at the last moment but, beyond saying that, I refrain from making any finding concerning the bona fides of the appellants.

14    I do accept, however, that this circumstance indicates that the Court should have proper and cogent evidence that an adjournment is appropriate.

15    I accept the submissions made on behalf of the Minister as to the shortcomings in the material provided in support of the application for the adjournment. In particular, I accept the Minister’s critique that the material provided by the appellants does not state the nature of the condition said to cause the first appellant’s ill health; why that condition renders the appellants unable to attend here today, even to make the application for an adjournment; and does not explain the lateness of the application.

16    It should be understood that hearings of the present kind are adjourned only when a proper basis upon which to do so is established. The Court must have regard not only to the interests of appellants, but also to the interests of respondents, and to the interests of the public in the administration of justice being conducted efficiently and economically. The resources of the public and of the Court can be wasted if adjournments are granted without a proper basis. Courts are solicitous to those who are genuinely unable to attend or participate in a hearing by reason of ill health, but that solicitude depends on good cause being shown. It is incumbent upon persons seeking adjournments on the basis of ill health in circumstances like the present to provide to the Court a proper basis upon which that indulgence should be granted. That will usually involve the persons attending at Court to make the application.

17    I am not satisfied that a proper basis for an adjournment has been established in the present case, and accordingly refuse to grant an adjournment.

18    Rule 36.75 of the Federal Court Rules 2011 provides that, if an appellant is absent when an appeal is called on for hearing, the opposing party may apply for an order that the appeal be dismissed. The Court, of course, also has power to order an adjournment or to take other steps. The Minister, on this occasion, seeks the dismissal of the appeal.

19    The summary dismissal of an appeal is a significant matter and not to be undertaken lightly. Nevertheless, it is appropriate to take into account the circumstances which I have already outlined relating to the appellants’ non-attendance today, and the absence of any indication by the filing of an outline of submissions or the like that the appellants have an arguable case on the appeal.

20    In that circumstance, it is difficult for the Court presently to conclude that the appellants will, by the summary dismissal of their appeal, suffer any prejudice in the sense of an inability to pursue an appeal which is reasonably arguable. By that I mean the prejudice which they might suffer if it was apparent to the Court that they had reasonable prospects of success on the appeal or even an arguable case on the appeal. As I say, the appellants have not put before the Court material indicating either of those circumstances.

21    That being so, and given the circumstances of the appellants’ non-attendance, I consider that it is appropriate to make the order under rule 36.75.

22    The order of the Court today is that the appeal be dismissed. In addition, I order that the appellants pay the first respondent’s costs fixed in the sum of $1,665.

Associate:

Dated:    13 August 2014