FEDERAL COURT OF AUSTRALIA

Kaja v Minister for Immigration and Border Protection [2015] FCA 1306

THE COURT ORDERS THAT:

1.    The appeal be dismissed pursuant to rule 36.75 of the Federal Court Rules 2011 (Cth).

2.    The appellant pay the costs of the first respondent to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit Court of Australia in which that Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (as it then was). The notice of appeal contains only one ground, namely:

1.    Tribunal made errors in its decision. I have pointed out Jurdictional error in the tribunals judgement in my Application for Federal circuit court but still FCC made an order against me.

(errors in original.)

2    This morning the South Australian Registry of this Court received an email, apparently from the appellant. The only content of the email was an attachment in the form of a medical certificate. The certificate, apparently from Narromine Shire Family Health Centre in Narromine in central New South Wales, read as follows:

Medical Certificate

This is to certify that Kaja Sandeep has a medical condition and will be unfit for work from

20/11/2015 till 25/11/2015 inclusive.

[signed]

Dr Sam Wakista.

3    The appellant made no application for adjournment of today’s hearing. No appearance was made by the appellant, and no further communication from the appellant was received by the Court or the respondents.

4    I am prepared to assume that the purpose of the appellant in sending the Registry a medical certificate was to apply for an adjournment of the appeal, presumably until a date after 25 November 2015. I infer from the fact that the medical certificate was sent to the Registry this morning that the appellant was aware that his appeal was listed for today.

5    Making this assumption, I am however not prepared to grant the adjournment the appellant has sought.

6    Principles relevant to whether the Court should adjourn a hearing on the basis of what is, in effect, an unsatisfactory medical certificate have been the subject of discussion in many cases including NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 and more recently MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209. In this case, I find the medical certificate produced by the appellant unsatisfactory as a basis for adjourning the hearing of the appeal because:

    it is undated;

    it is phrased in terms of unpersuasive generality, to the point of being a pro forma document;

    it does not identify the medical condition from which the appellant suffers;

    it states that he is “unfit for work”, not unfit for attending Court;

    it does not explain why that medical condition prevents the appellant attending Court today and participating in the hearing;

    it does not explain what the appellant is doing in central New South Wales on or about the day his appeal is listed for hearing in Adelaide.

7    Rule 36.75 of the Federal Court Rules 2011 (Cth) provides:

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    If the absent party is the appellant:

(i)    The appeal be dismissed; or

(ii)    The hearing be adjourned; or

(iii)    …

8    In this case, Counsel for the Minister applied for the matter to be dismissed in light of the absence of the appellant. I have already expressed the view that the medical certificate provided by the appellant to the Court is unsatisfactory. I also note that no submissions have been filed by the appellant. In my view it is open to the Court to form the view that the appellant is not prosecuting his appeal. I consider that it is appropriate to order that the appeal be dismissed.

9    For completeness, I note that in any event the appellant’s appeal is unmeritorious. His sole ground of appeal against the primary judgment is, in my view, vague, and unparticularised to the point of being meaningless. The absence of any submissions from the appellant, either oral or in writing, means that the Court lacks the benefit of further explanation or particularisation. I am satisfied on the material before me that the ground of appeal is such that the appellant had no prospect of success.

Associate:

Dated:    23 November 2015