Federal Court of Australia

CPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2026] FCA 1068

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.    The Appellant pay the First Respondent’s costs of the appeal, to be assessed by a registrar on a lump sum basis.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANDERSON J:

1    The appellant appeals from the judgment and orders of the Federal Circuit and Family Court of Australia (Division 2) of 4 December 2023. The primary judge dismissed an amended application, filed on 9 August 2023, made under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the then Administrative Appeals Tribunal made on 27 April 2018. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection (subclass 866) visa.

2    The appellant is self-represented in relation to the appeal before this Court but was represented in the Court below.

3    On 28 July 2026 at 8.40 pm, the appellant sent an email to the Migration Team in this Court advising:

Due to the previous injury on my wrist in australia some tines i got severe pain in my hand because of that i have to take medications which has effect on my body so because of that i'm unablento attend court hearing..thxx

4    The appellant attached a medical certificate from a Dr Naveed Khan which said as follows (save for omitting the appellant’s name):

This is to certify that I have Consulted today

Mr [CPK18]

Mr [CPK18] is suffering from a medical condition

and in my opinion will be unfit to continue his usual occupation/School

from

28/07/2026 to 09/08/2026 inclusive.

This certificate was completed on 28/07/2026

5    The appellant also provided a copy of a script for medication dated 28 July 2026 purportedly signed by his treating doctor, Dr Naveed Khan, and a referral for an x-ray dated 28 July 2026, also signed by Dr Naveed Khan.

6    On 29 July 2026 at 10.02 am, the Migration Team sent an email to the Minister’s legal representatives enquiring about the Minister’s position in relation to the appellant’s request for an adjournment of the hearing of the appeal (and requesting the appellant copy the Minister’s legal representatives into all correspondence with the Court).

7    On 29 July 2026 at 3.42 pm, the Minister’s legal representative advised that the Minister opposed the adjournment of the hearing and noted that the medical certificate provided did not suggest that the appellant would be unable to attend or participate in the scheduled hearing.

8    On 29 July 2026 at 4.33 pm, the Migration Team provided my chambers with the email from the appellant and the attachments (that is, the medical certificate, x-ray referral and script) and the email from the Minister opposing an adjournment of the hearing.

9    On 29 July 2026 at 7.14 pm, the appellant, by email to the Migration Team and the Minister’s legal representatives, made an application to adjourn the hearing listed for 3 August 2026. That email, which also included the same attachments as his prior email, is in the following terms:

ORDERS SOUGHT

1. That the hearing listed on 03 August 2026 be adjourned to a later date.

2. That the Court make any further orders it considers appropriate.

GROUNDS

1. The Applicant is suffering from a serious medical condition and has been prescribed strong pain medication by his treating medical practitioner.

2. The medication causes side effects including drowsiness, impaired concentration, and difficulty preparing for or participating in the hearing.

3. Because of the medical condition and medication, the Applicant is not fit to attend or properly conduct his case at the hearing date.

4. A medical certificate from the treating medical practitioner is attached.

5. An adjournment is necessary in the interests of justice to ensure a fair hearing.

Thanking you

Regards

[CPK18]

DATED: 29 July 2026

10    On 30 July 2026 at 9:51 am, the Migration Team forwarded that email and its attachments to my chambers.

11    On 30 July 2026 at 11.39 am, the Migration Team sent an email to the appellant in the following terms:

Dear Appellant,

VID3/2024 CPK18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

I refer to your email below to lodge an interlocutory application seeking orders to adjourn the hearing listed on 03/08/26.

Please note that Chambers has rejected your request to lodge the interlocutory application and the adjournment orders sought on it.

The hearing will proceed as scheduled on Monday 3 August 2026 at 9:30 AM and you are expected to attend it.

(Emphasis in original).

12    On 30 July 2026 at 2.31 pm, the appellant, by email, made another application to adjourn the hearing listed for 3 August 2026. That email is in the following terms:

ORDERS SOUGHT

1. That the hearing listed on 03 August 2026 be adjourned to a later date.

2. That the Court make any further orders it considers appropriate.

GROUNDS

1. The Applicant is suffering from a serious medical condition and has been prescribed strong pain medication by his treating medical practitioner.

2. The medication causes side effects including drowsiness, impaired concentration, and difficulty preparing for or participating in the hearing.

3. Because of the medical condition and medication, the Applicant is not fit to attend or properly conduct his case at the hearing date.

4. A medical certificate from the treating medical practitioner is attached.

5. An adjournment is necessary in the interests of justice to ensure a fair hearing.

Thanking you

Regards

[CPK18]

13    The email included a second medical certificate from Dr Naveed Khan in the following terms:

This is to certify that I have Consulted today

[CPK18]

[CPK18] is suffering from pain in the left wrist and forearm due to previous injury and has rods-insitu

and in my opinion will be unfit to continue his usual occupation/School

from

28/07/2026 to 09/08/2026 inclusive.

This certificate was completed on 30/07/2026

14    On 31 July 2026 at 7.49 am, the appellant sent a further email to the Migration Team (which was forwarded to my chambers at 10.06 am) which included photos and copies of x-rays of his arm and was in the following terms:

Please reconsider my adjournment application i've severe pain to my left wrist and forearm because of that i'm not able to do my regular chores and i take medications to reduce my pain and that has effect on my body drowsiness and vomiting etc.so please reconsider my application for adjournment.Thxx

[CPK18]

15    On 31 July 2026 at 12.27 pm, the Minister’s legal representative advised that the adjournment application continued to be opposed by the Minister.

16    On 31 July 2026 at 4.28 pm, the Migration Team sent an email to the parties advising that:

[T]he appellant’s application for an adjournment will be heard at 9:30AM on Monday, 3 August 2026. If the adjournment is not granted at that time, the hearing of the appeal will proceed on that day as presently listed.

17    On 3 August 2026, the appeal was called on for hearing. The matter was called outside the court and there was no appearance by the appellant. Ms Lucas, who appears for the Minister, has made an application for the appeal to be dismissed on the basis of non-attendance by the appellant, pursuant to r 33.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).  I am satisfied that there is no proper basis to adjourn the proceedings.  

18    The medical certificate is wholly inadequate and does not identify any good or compelling reason why the hearing today should be adjourned.  The appellant was informed by the court’s Migration Team that the matter would be proceeding today and has failed to appear. In those circumstances, where there is no proper basis in the medical certificate or in any other material provided by the appellant to the court to adjourn the matter, it is appropriate to grant the Minister’s application and dismiss the appeal for the failure to appear by the appellant, although in my view the preferable rule is r 36.75(1)(a)(i).  Ms Lucas also asks that the Minister’s costs of the appeal be paid.  In the circumstances, it is appropriate to make that order, and I will make an order that the appellant pay the Minister’s costs, to be assessed by a registrar on a lump sum basis.  The appeal will be dismissed. I will make the costs order I pronounced.

Associate:

Dated:    3 August 2026