Al Mamun v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This appeal is from the judgment of the Federal Magistrates Court of Australia delivered on 22 July 2011 and published as Mamun v Minister for Immigration and Citizenship & Anor [2011] FMCA 620. The learned federal magistrate dismissed an application by the appellant and ordered the appellant to pay the costs of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), of the proceeding in the Federal Magistrates Court. By the application to the Federal Magistrates Court, the appellant sought to quash a decision of the Migration Review Tribunal ("the Tribunal"), made on 27 January 2011 and handed down or forwarded to the appellant on 28 January 2011. The Tribunal affirmed a decision not to grant the appellant a Student (Temporary) (Class TU) Subclass 573 visa. 2 In his notice of appeal filed on 9 August 2011, the appellant, who is unrepresented, gave as his address for service 20 Leonard Street, Preston, Victoria, 3072. He also provided a contact telephone number, 0425 180 578. In due course, the appellant was advised that his appeal was listed for hearing today at 10.15 am. 3 On 23 November 2011, at 9.11 am and 9.13 am respectively, a facsimile message was sent to the solicitors for the respondents and to the Court, apparently by or on behalf of the appellant. The facsimile message was a medical certificate from Millennium Medical Centre Footscray on the corner of Paisley and Albert Streets in Footscray. The certificate is from Dr Margaret Vo. The doctor certifies that she examined Mr Abdullah Al Mamun of 20 Leonard Street, Preston on 22 November 2011. In some respects, the certificate is impossible to read, because its words have been obscured in part by the facsimile process or by the copying or the printing process. The gist of the certificate is that the appellant is said to be "unfit for his normal occupation" for the period from 23 November 2011 to 24 November 2011. The facsimile was sent from the Puckle Street Newsagency. The telephone directory reveals the address of the Puckle Street Newsagency to be at 45 Puckle Street, Moonee Ponds. 4 When the appeal was called on for hearing this morning the appellant was not present. He did not answer the call of his name outside the courtroom and he has not attended since the appeal was called on. 5 Counsel for the first respondent sought to rely on an affidavit of Natasha Bosnjak, sworn today, concerning an attempt by the first respondent's solicitors to contact the appellant, consequent upon their receipt of the facsimile medical certificate. Yesterday, 23 November 2011, the first respondent's solicitors sent by courier to 20 Leonard Street, Preston a letter. The letter is dated 23 November 2011. It refers to the facsimile medical certificate and the absence of any additional information concerning the medical condition of the appellant. The letter reminds the appellant that his appeal is listed for hearing on 24 November 2011 at 10.15 am. The letter then proceeds: If you are seeking an adjournment of tomorrow's hearing, we are instructed to oppose that request on the basis that the medical certificate does not adequately explain the reason why you are unable to attend the hearing. Please ensure that you, or someone representing you, attends the hearing tomorrow at 10.15am, otherwise your appeal may be dismissed in your absence. The first respondent's solicitors also sent a facsimile copy of the letter to the Court. 6 Ms Bosnjak deposes that she was informed by someone within the office of the solicitors for the first respondent that the letter was delivered to 20 Leonard Street, Preston at approximately 1.45 pm and was accepted by someone called Chris Cowie, who identified himself as the appellant's housemate. The affidavit attaches a copy of the courier's contractor daily invoice, recording delivery of an article from the solicitors for the first respondent to 20 Leonard Street, Preston at 1.46 pm and gives the receiver's name as Chris Cowie. 7 Ms Bosnjak also deposes that, on 23 November 2011 at approximately 2.05 pm, she telephoned the appellant on the telephone number he gave in his notice of appeal. She informed the appellant that she had received the facsimile that morning and arranged to deliver a letter by courier to his home address, that the letter had been handed to his housemate, that he should read the letter, and that any response to the letter should be sent to the first respondent's solicitors and the Court. 8 It is obvious that the medical certificate apparently submitted by the appellant is totally inadequate to explain his absence from the Court today. The certificate says absolutely nothing about any medical condition from which the appellant might be suffering. It also only records the opinion of the doctor that the appellant will be unfit for his normal occupation for two days, whatever his normal occupation might be. The letter does not say that it would be impossible, or even very difficult, for the appellant to attend the Court and if he were truly unfit to present submissions on his appeal, to apply for an adjournment of the hearing of the appeal on that basis. 9 The documentary chain reveals that, on the evening of 22 November 2011, the appellant had apparently been able to attend at the premises of the doctor in Footscray, some distance from what appears still to be his home in Preston. If it were the appellant himself who caused the facsimile transmission on the morning of 23 November 2011, that would also be evidence that he was able to travel to the Puckle Street Newsagency in Moonee Ponds, again, some distance from his home in Preston, for that purpose. If the appellant were able to travel from Preston to Footscray to be examined by a doctor and to obtain a medical report, it is difficult to see how he could not attend at the Court this morning for the purpose of appearing when his appeal was called on for hearing. 10 There are three possible courses open to me owing to the non-appearance of the appellant. I could simply adjourn the hearing of the appeal, to provide him with an opportunity to attend at a later date. I could exercise the power given to the Court by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), to dismiss the appeal for failure of the appellant to attend a hearing relating to the appeal. I could proceed to attempt to deal with the appeal on its merits in the absence of the appellant. 11 Of these courses, it is the second that commends itself to me. In the light of the inadequacy of the material to explain the absence of the appellant, simply to adjourn the hearing of the appeal and provide the appellant with an opportunity to appear at a later time would be inappropriate. A party to a proceeding before the Court may have it adjourned if there is a genuine reason, health-related or otherwise, that would make it difficult for that party to present the case adequately. The material that has been provided by the appellant in the present case falls far short of establishing any such inability. 12 On the other hand, to deal with the merits of the appeal in the absence of the appellant might be to do him an injustice, if he has a genuine medical condition that effectively prevents him from attending at the Court. Even if the Court were to enter upon the merits of the appeal and to dismiss it in the absence of the appellant, it might still be open to him at a later time to establish his inability to attend and to seek to have the judgment on the merits set aside. 13 The interests of justice would be served best by making an order dismissing the appeal on the ground of the failure of the appellant to attend the hearing. In those circumstances, it would be open to the appellant to apply to set aside that judgment on a subsequent occasion. I am not to be taken as suggesting that the appellant would necessarily succeed on any such application. As I have said, the indications from the material are that the appellant is not so disabled that he could not have attended this morning, if only for the purpose of endeavouring to persuade the Court that he ought not to be required to continue with the hearing of his appeal today. If he were to apply to set aside the judgment that I am about to give, the appellant would also need to be able to show that there was some utility in setting aside that judgment. That is to say, the appellant would need to be able to persuade a judge subsequently that his appeal had some merits. 14 For those reasons, the orders I make are as follows: