FEDERAL COURT OF AUSTRALIA

MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Today is the day appointed for the hearing of an appeal by the appellant from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 17 May 2016. That court dismissed the appellant’s application for the judicial review of a decision made by the Refugee Review Tribunal (Tribunal) which in turn affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) to refuse an application by the appellant for the grant of a Protection (Class XA) visa under the Migration Act 1958 (Cth).

2    Upon the case being called on at the appointed time, there was no appearance by or on behalf of the appellant at the Bar table. The Minister appeared by counsel. At my direction, the court officer called the name of the proceeding three times in the public area of the Court. Her report was, and the fact is, there was no appearance thereafter by or on behalf of the appellant.

3    That absence of appearance confirms a likelihood which became evident about an hour beforehand in the following circumstances. A friend of the appellant attended at the Victoria District Registry of the Court in the same building and there left the original of a medical certificate in respect of the appellant. That person was informed by the registry officer that the proceedings may nonetheless continue today.

4    The communication from the registry office to chambers is in evidence as is the medical certificate. Omitting, as one must, the name of the appellant, the operative portion of the medical certificate is in these terms:

I have examined [the appellant] who in my opinion is suffering from a medical condition and will be unfit for work from 15/11/2016 to 16/11/2016 inclusive.

5    The certificate is authored by one Dr Zahra Haroun of Chandler Road Medical Clinic, Noble Park in Victoria (Dr Haroun). It is dated 15 November 2016. Dr Haroun is, inferentially, a general practitioner practising at that clinic. Also inferentially, having regard to the attendance and the information provided to the registry officer as well as inferences available on the face of the medical certificate, the appellant is well aware that today is the date appointed for the hearing of his appeal. Also inferentially, from the appellant’s friend’s attendance at the registry and the proffering of the medical certificate, the appellant seeks an adjournment of his appeal. That adjournment was opposed by the Minister.

6    The Minister’s further application was that in the event that the adjournment was refused, the appeal should be dismissed for want of prosecution. In support of this position, the Minister referred to a judgment of Lindgren J: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (NAKX). In that case, there was also an application by litigants in person for the adjournment of an appeal supported by medical certificates. Those certificates contained, as Lindgren J records at [5], the following statements:

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.’

In respect of these certificates, Lindgren J (at [6] – [8]) observed:

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.

7    In the result, his Honour refused the application for an adjournment and, there being a failure to appear, dismissed the appeals. The sentiments voiced by Lindgren J in NAKX in respect of the medical evidence tendered in support of the adjournment application in that case were referred to with approval by the Full Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [49] (Luck), a case to which I shall return shortly.

8    Axiomatically, and as was conceded very properly by the Minister, these types of applications are necessarily always fact specific.

9    In respect of this particular medical certificate, I make the following observations. Firstly, and again inferentially, the appellant was sufficiently healthy both physically and mentally to attend upon Dr Haroun yesterday. Secondly, the particular medical condition from which the appellant suffers is quite unknown. The certificate is noteworthy for its generality. Yet further, whatever medical condition it is would seem, more likely than not, to be the most transient of conditions. I make that observation because the unfitness attested is only from yesterday until today. Yet further, whatever medical condition it may be, it is one which, in the opinion of Dr Haroun, renders the appellant unfit for work, not, notably, to attend at Court, at least for the purpose of voicing personally an adjournment application, if not, also, for the purpose of making submissions in respect of his appeal on the merits. It is, of course, possible to envisage circumstances where someone might suffer from an overwhelming, yet transient, condition which does, albeit temporarily, render them unfit to appear at Court so as to prosecute their appeal. But one should not be left to speculate on such subjects. Finally, it must be said also, that the medical certificate concerned is not the subject of sworn or affirmed evidence. All in all, the medical evidence is, in my view, quite unsatisfactory as a basis for the support of an adjournment application.

10    Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.

11    Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:

… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.

12    Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.

13    The result then is one where there is not, in my view, any sufficient foundation for a conclusion that the appellant is unable because of some particularised medical condition to attend at Court today to prosecute his appeal. It is just a case where he is not present to prosecute that appeal. That being so, there is a want in the prosecution of the appeal. That is, an event which entitles the Minister to apply for its dismissal. I dismiss the appeal accordingly, with costs.

Associate:    

Dated:    22 November 2016