FEDERAL COURT OF AUSTRALIA

MZABV v Minister for Immigration and Border Protection [2017] FCA 105

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

PAGONE J:

1    This is an application for an extension of time to lodge an appeal against the decision of his Honour Judge Hartnett of the Federal Circuit Court of Australia. His Honour upheld the decision of the then Refugee Review Tribunal which confirmed the decision of the delegate of the Minister for Immigration and Border Protection to deny the applicant a Class XA Protection Visa pursuant to s 65 of the Migration Act 1958 (Cth). The matter was called for hearing today in the usual way, but there was no appearance for the applicant. When the matter was called and the applicant did not appear, the Minister sought orders for the proceeding to be dismissed pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of Federal Court Rules 2011 (Cth).

2    The application was made on 19 August 2016 and was supported by an affidavit of the same date by the applicant. On 8 February 2017, the applicant sent a fax to the registry in relation to this matter asking for the matter to be relisted. His fax said, relevantly, only the following:

I make this request to relist my matter as I cannot attend for the date due to my sickness. Copy of these documents sent to Clayton Utz lawyers as well.

The fax is dated 9 February 2017, although one of the fax transmission sheets has the date of 8 February 2017, but the fax appears to have been received by the Court on 9 February 2017 at 2.32pm. Attached to that fax is what purports to be a medical certificate from a doctor, identified as Dr Ravi Wijesekara, MBBS, FRAGCP, Provider number: 289862LB, practising at the Doveton Medical Centre. The certificate from the doctor has, in bold letters, the words “Medical Certificate”. It is dated Thursday, 9 February 2017, and says only the following:

This is to certify that I today examined [the applicant] who is suffering from: a medical condition and he is unfit for work for nine days.

From: Thursday, 9 February 2017 to Friday, 17 February 2017 inclusive.

3    The application for an extension of time gave a mobile telephone number for the applicant as a point of contact. The application also provided an address for service in Elwood. The Court has been informed that somebody in the Court’s registry attempted to contact the applicant, in response to his fax, by attempting to phone him on the mobile telephone number that he had given, but that two attempts to contact the applicant both failed. The Court has been informed that the Optus message heard upon dialling that number was that the phone line was disconnected.

4    The applicant may believe that he had made an application for the matter to be relisted from today, but the applicant had no reason to believe that the matter would be relisted and that it would not come to be heard today. The Court has also been informed that the applicant had been told by a practitioner at Clayton Utz, acting for the Minister, that any application to have the matter relisted from today would need to be based upon evidence. Such evidence as there is for any application for an adjournment is contained in the slender statement in his fax to the registry that he was unable to attend due to his sickness, together with a statement from a doctor saying only that the applicant was suffering from a medical condition and was unfit to work for nine days.

5    It is unfortunate that certificates of this kind are provided to the Court because they are unhelpful to the Court or to the applicant for whose benefit they have been obtained, perhaps upon the payment of a fee. The Court needs information upon which it is able to make a decision about whether an adjournment ought to be granted, and a medical practitioner ought to know that it is important to provide material for the Court to determine whether the significant step of an adjournment is warranted. That would usually require a certificate to be meaningful to enable the Court to make a decision. An application for an adjournment, in generally similar circumstances, was rejected by Justice Lindgren in the case of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 in which his Honour said at [5] to [10]:

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.

What that case indicates is that what needs to be provided in a medical certificate in order for the medical certificate to be meaningful is the basis to establish 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 that of having a “medical condition” and that a person is “unfit for work” for nine days are unhelpful, relevantly uninformative and unsatisfactory. The certificate in this case, and the statement by the applicant in this case, do not enable the court to evaluate why it is or how it is that the applicant’s condition would prevent him from attending the court and, therefore, do not establish a responsible foundation to adjourn a court hearing. Statements of this kind do not help the patient in making the case that he needs. Doctors providing certificates of this kind assist nobody. Accordingly, to the extent that the applicant’s request in his fax is to be treated as an application for an adjournment, it is rejected.

6    I then turn to the Minister’s application for the matter to be dismissed pursuant to s 25 and r 36. Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) provides:

A single judge sitting in chambers or an open court or a Full Court may make an order that an appeal to the court be dismissed for want of prosecution.

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

(1)    If a party is absent when an appeal is called for a 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)    the hearing proceed only if specified steps are taken […]

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing, an order is made, the party that was absent may apply to the court for an order:

(a)    setting aside or varying the order and;

(b)    for the further conduct of the hearing.

The matter, as mentioned, was called on for hearing in the usual way on the day on which the matter was listed for hearing. The applicant has not appeared and, in the circumstances, I propose to dismiss the proceeding. In doing so, however, I should add that the application that was before the Court today is an application for an extension of time. In considering that application, it would have been relevant to consider the strength of an appeal if leave were to be granted. The application was supported by an affidavit and the grounds in the application were said to be those set out in the affidavit. The affidavit is brief and contains only the following seven short paragraphs:

1.    I am the Applicant.

2.    I have received the Federal Court order and a letter from the Minister’s lawyers at the end of month July 2016.

3.    I annexed the order was granted from Federal Circuit Court on 14 July 2016.

4.    After I received the documents, I was seeking legal help to file my appeal to the Federal Circuit Court.

5.    When I was seeking legal help, I was fallen ill and could not attend to day today work.

6.    The delay acknowledgement and my illness caused my appeal to the Federal Court delayed.

7.    The above statements are true based on my own knowledge and true to the best of my knowledge, information and beliefs based on my inquiries.

There was, attached to the affidavit as exhibit AB3, a medical certificate from the same doctor who provided the medical certificate to which I have made reference earlier in these reasons. That certificate had been given in the context of the applicant claiming that he had been unable to file an appeal in the required time. The certificate, also from Dr Wijesekara, is in materially the same terms as the one previously referred to, except for the number of days which the doctor certified that the applicant was then unfit for work, and the days to which that related.

7    The application for leave also contained a draft notice of appeal that contained only two grounds of appeal, namely:

1.    The proceeding in the order which the application relates was pronounced involved a question of law.

2.     There is a jurisdictional error occurs in the order.

Nothing in any of this material shows any error of law capable of succeeding if an extension of time were to be granted. No error of law is identified in any of the material to which I have referred, and no foundation for an error was identified of any kind.

8    In those circumstances, I am fortified in the decision to dismiss the proceeding on the basis of the applicant’s failure to appear.

Associate:

Dated:    14 February 2017