FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2016] FCA 565

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The First Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

Introduction

1    In this matter the first applicant, Kamaljeet Kaur, seeks leave to appeal from a judgment of the Federal Circuit Court (Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 3535) dismissing her application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant her a student visa on the basis that she was not a genuine temporary entrant to Australia for the purpose of study. Notwithstanding that the applicant’s husband and daughter are named as the second and third applicants, the proceeding only relates to Ms Kaur’s application for a visa.

2    In broad summary the Tribunal found that since arriving in Australia on a student visa on 1 March 2008, Ms Kaur had repeatedly enrolled in relatively inexpensive, short term and seemingly-unrelated courses including hairdressing salon management, hairdressing, international business management, business, horticulture (wholesale nursery), production horticulture, and management. The Tribunal considered that Ms Kaur had undertaken courses of study below her ability, noting that she completed a Bachelor of Arts degree overseas, and completed an Advanced Diploma in Management but then enrolled in a lower level Diploma of Management.

3    The Tribunal noted that Ms Kaur repeatedly referred to her daughter attending school in Australia and her desire for her daughter to complete the current year. Amongst other things, in deciding that it was not satisfied that Ms Kaur genuinely intended to stay in Australia temporarily for the purpose of study, the Tribunal considered that Ms Kaur was attempting to stay in Australia so that her daughter could remain in school in Griffith.

4    The Federal Circuit Court found no jurisdictional error in the Tribunal’s decision, either in the way the Tribunal approached the decision-making process or in its reasons for decision. The primary judge said (at [25]) that that it was open to the Tribunal to conclude that Ms Kaur simply wish to live in Australia for the benefit of herself and her family. Her Honour noted (at [26]) that Mrs Kaur did not elaborate on the grounds of her appeal during oral submissions and that the only thing she said to the Court was that she be given a visa until her course finishes and her daughter finishes the school year.

5    The application for leave to appeal was listed for hearing before me on 17 May 2015. The day before the hearing Ms Kaur applied for an adjournment. For the reasons that follow I have refused the application for adjournment, and I have dismissed the proceeding pursuant to rule 35.33 of the Federal Court Rules 2011 (“the Rules”).

The application for adjournment

6    On 7 December 2015 the Federal Circuit Court handed down judgment. On 17 December 2015 Ms Kaur filed the application to this Court seeking leave to appeal supported by her affidavit sworn the same day.

7    On 21 January 2016 the National Appeals Registrar wrote to Ms Kaur informing her that the application would be listed for hearing in Melbourne during the sitting period 2-27 May 2016. Then, on 21 March 2016, the National Appeals Registrar wrote to Ms Kaur informing her that the application was fixed for hearing before me on 17 May 2015 at 2:15 pm.

8    On 16 May 2015 Ms Kaur sent an urgent facsimile to the Court Registry stating that she was unable to attend the hearing listed for the following day because:

(a)    she was in Griffith, New South Wales with her husband and daughter and could not travel to Melbourne for the hearing as it involved a 950 kilometre return trip;

(b)    her husband is receiving medical treatment in Griffith, and was booked to have blood tests and a CT scan at the Griffith Base Hospital on 16 May 2016; and

(c)    after her husband’s medical procedures she would be required to take care of him and her daughter, and she was not sure how long it would take for her husband to recover.

Ms Kaur sought an adjournment to an unspecified later date.

9    Ms Kaur attached a medical certificate relating to her husband from Dr Peter Calaizis of Griffith, a request for a CT scan dated 12 May 2016 which referred to her husband having a “history of abdominal pain/left-sided/for investigation? diverticular disease”, and a request for blood tests dated 12 May 2016. The medical certificate stated:

THIS IS TO CERTIFY THAT

Mr Gurpreet Singh

IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD

Thursday, 12 May 2016 to Tuesday, 17 May 2016 INCLUSIVE

He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION

This Certificate was completed on 12/5/2016

10    On receipt of the request for an adjournment my chambers informed Ms Kaur that the application could only be considered if was supported by an affidavit setting out the grounds of the application and providing a sensible estimate of the length of the adjournment sought. Late in the afternoon of 16 May 2016 Ms Kaur filed an affidavit in which she deposed to the same matters she had previously set out and said that her husband had undertaken a CT scan that day and was scheduled to undertake blood tests the next day. She also said:

After my husband’s medical procedures are complete, I shall be required to take care of my husband (and my young daughter) until he recovers. I anticipate my husband’s recovery to take about two (2) months.

I am also unable to travel to Melbourne is Griffith is about 950 km round trip [sic]. My husband is also unable to travel to Melbourne as his health will not sustain the long distance.

11    At the hearing on 17 May 2015 Ms Kaur did not appear when the matter was called. The Minister opposed the application for an adjournment on the grounds that the materials do not disclose why Ms Kaur needed to remain in Griffith and could not attend Court. The Minister argued that although the materials disclose that her husband is suffering ill health and receiving medical treatment, the most that the Court can infer is that the nature of the medical treatment concerns left-sided abdominal pain. On the Minister’s submission the materials provided did not elaborate on the nature of her husband’s condition and there was no fact from which the Court could properly infer that the nature of his condition was such that Ms Kaur could not reasonably be expected to leave the side of her husband and child. The Minister submitted the material before me did not go far enough to justify the granting of an adjournment.

12    The Minister relied on the decision in MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 (Pagone J). In that case his Honour refused an application for an adjournment made in reliance on a medical certificate which said that the appellant was suffering “lower back pain” and setting out a short period in which the appellant was said to be “unfit for duty”.

13    His Honour said (at [2]):

It is unfortunate that certificates of this kind are provided to the court because they are unhelpful to the court and to the appellant. An application for an adjournment in generally similar circumstances was rejected by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. His Honour said at [5]-[11] in that case:

[5]    The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’

The certificate of the same date in respect of the female appellant states:

‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’

[6]    The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

[7]    I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

[8]    If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

[9]    I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

[10]    In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

[11]    I refuse the application for an adjournment.

The case indicated that what needs to be provided, for a certificate to be meaningful, is material that establishes why it is, or how it is, that an appellant suffering from a medical condition would be unfit for participation at a hearing in court. A description such as “unable to attend court”, as his Honour considered in that case, was unsatisfactory. The more generalised description of Dr Qazi in this case of the appellant having “lower back pain” is even less satisfactory. It does not assist the court to evaluate why it is or how it is that his condition would prevent the appellant to attend court, and it does not help the patient, the appellant, in making the case that he needs to make. Doctors providing certificates of this kind assist nobody although, of course, there is no reason to assume that what is needed has been brought to their attention.

(Emphasis added.)

14    His Honour also referred with approval to MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 (Davies J) at [12]-[13] where her Honour said:

The appellant did not attend the hearing but had notified the Court the previous day by email at 5.40 pm that he would be unable to attend Court because of bad health and requesting an adjournment. He later emailed a medical certificate and a copy of a prescription (both dated 12 May 2014) to the Court at 10.25 pm. The medical certificate simply stated:

This is to certify that [the appellant] attended this clinic on Monday 12/5/14.

In my opinion he is unfit for work from Tuesday 13/5/14 to Tuesday 13/5/14 (inclusive).

[signed by the medical practitioner]

These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.

(Emphasis added.)

15    The Minister sought an order dismissing the application for leave to appeal pursuant to r 35.33 of the Rules.

Consideration

16    Rule 35.33 relevantly provides that where the applicant in an application for leave to appeal is absent when the matter was called on for hearing the other party may call for an order that the application be dismissed. In my view there is force in the Minister’s submissions and it is appropriate to dismiss the application for leave to appeal pursuant to this rule.

17    I say this, first, because the medical certificate relates to Mr Singh rather than to Ms Kaur. It is Ms Kaur, not her husband, who is required to attend court to prosecute the application for leave to appeal. I make no attempt to lay down a general rule, but in my view the certificate could only support an adjournment if it showed that Mr Singh’s medical condition was such that Ms Kaur could not be away from him for a day so as to attend the hearing. The evidence before me falls far short of this.

18    The requests for a CT scan and blood tests are seemingly just investigations into the cause of Mr Singh’s left sided abdominal pain and there is nothing to show that he is receiving ongoing medical treatment. More importantly, the medical certificate merely states that Mr Singh will be “unfit to continue his usual occupation from Thursday, 12 May 2016 to Tuesday, 17 May 2016”. There is nothing in the certificate to show that he is so unwell that he cannot look after himself for about one day so that Ms Kaur could attend the hearing.

19    Ms Kaur deposed that once Mr Singh’s “medical procedures” are complete she will be required to take care of him (and her daughter) until he recovers, but there is no independent support for that claim. The medical evidence only states that Mr Singh has left sided abdominal pain and must have a CT scan and blood tests. It does not show that he has undergone any significant medical procedure, and there is nothing in the materials to satisfy me that he is facing a medical procedure in the near future which will incapacitate him such that Ms Kaur cannot be away for about one day.

20    Second, the medical certificate is dated 12 May 2016 and Ms Kaur made no attempt to explain why she left it until the day before the hearing to apply for an adjournment. It is reasonable to infer that the short notice was intended to bring about an adjournment.

21    Third, there is no substance in the proposition that the hearing should be adjourned because it requires Ms Kaur to undertake a 950 km round trip. Ms Kaur has lived in Griffith for some time and she did not submit that the case should be heard elsewhere, or seek to appear by way of video conference. The matter has been listed for hearing in Melbourne for some time and if Ms Kaur intended to attend the hearing on 17 May 2016 she must have made arrangements for that trip. There is no evidence as to whether she did, or if so the mode of travel she had arranged. However, if she travelled by air I infer she would have been away for about a day, and if she travelled by car she would have been away for the afternoon of 16 May 2016 and have been back in Griffith the following afternoon. If she travelled by train or bus she is likely to have been away for about two days. There was no requirement for her husband to travel to Melbourne and his asserted inability to travel is not relevant.

22    Fourth, refusal of the application for adjournment does not lock Ms Kaur out of pursuing her application. Dismissal of the application under r 35.33 does not determine it on the merits and Ms Kaur can apply to reinstate the application. While that will involve an application for leave, she requires leave in the present application.

23    I have made orders dismissing the application and requiring Ms Kaur to pay the Minister’s costs.

Associate:

Dated:    19 May 2016