BQD17 v Minister for Home Affairs [2018] FCA 1447 | Case summary

INTRODUCTION 1 The applicant seeks an extension of time within which to seek leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) refusing to grant the applicant an adjournment of a show cause hearing conducted in the FCCA pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCR). 2 The applicant is a citizen of Sri Lanka who travelled to Australia on a visitor visa to participate in a sporting event in late 2014. In December 2014 he lodged an application for a Protection (subclass 866) Visa. The appellant claimed in his visa application that he was caught up in disputes between various Sri Lankan sporting bodies and as a result of his refusal to comply with demands and threats from people who are politically well connected in Sri Lanka, he fears for his life and the life of his family, should he return to Sri Lanka. 3 The Visa application was considered by a delegate of the Minister for Home Affairs, who determined that it should not be granted. The applicant then applied for a review of that decision by the Administrative Appeals Tribunal, which found that the applicant did not meet the criteria under s 36 of the Migration Act 1958 and affirmed the decision of the delegate. 4 The appellant then filed an application in the FCCA for judicial review of the decision of the Tribunal. The proceedings were listed for a show cause hearing on 6 March 2018, following an application by the Minister pursuant to r 44.12 of the FCCR. At that hearing, the appellant was self-represented and assisted by an interpreter in the English and Sinhalese languages. He was granted an adjournment on that day, because the solicitors who had previously acted on his behalf had recently ceased to do so, and because he appeared not to have received a copy of the court book. 5 The matter was then listed for hearing on 20 March 2018. The decision of the primary judge records that on the day before the hearing, the Federal Circuit Court registry had received a facsimile from the applicant that included a copy of a medical certificate stating that the applicant "…has a medical condition and will be unfit for work from 19/03/2018 to 20/032018" and a prescription for Voltaren tablets. On the same day, the registry received a further facsimile, apparently from the applicant, stating: This is to notify you that I am not able to attend for the hearing tomorrow at 10.00am as I am having back pain and currently under medication and therefore I am unfit to attend for the hearing. Herewith I am attaching the Medical Certificate and prescriptions for your reference. 6 The matter was called on for hearing on 20 March 2018. The legal representatives for the Minister tendered correspondence indicating that they had informed the applicant that should he seek an adjournment of the hearing it would be opposed, and the Minister would urge the court to proceed with the hearing. The applicant did not appear. 7 The primary judge relevantly said: [12] It is clear from the Applicant's subsequent correspondence sent by facsimile to the Court at 4.30pm on 19 March 2018 that the Applicant was seeking an adjournment on the basis of the medical certificate and prescription the Applicant provided to the Court. The Minister opposes the adjournment and I refuse the adjournment for the following reasons: a) the Applicant knew of the adjourned final hearing date today. The Applicant was present in Court on 6 March 2018 when I announced the date and time of the adjourned final hearing date and was also notified by email; and b) the medical certificate that the Applicant relies on is wholly deficient for the purpose of satisfying the Court that the Applicant cannot travel to Court and attend and/or participate in today's hearing. [13] I note that in his correspondence sent to the Court by facsimile at 4.30pm on 19 March 2018, the Applicant refers to the fact that he has back pain and that he cannot attend the hearing. However, this is not probative evidence of a satisfactory medical condition. The medical certificate itself is deficient in satisfying the Court that the Applicant cannot travel to Court and attend the hearing because it does not specify the medical condition that the Applicant is suffering from. The medical certificate simply says that the Applicant is suffering from a medical condition and only says that the Applicant is unfit for work. It does not address the critical question of whether the Applicant is fit to travel to the Court and to attend and participate in the hearing today. [14] I rely on a decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 ("NAKX") and the observations made by his Honour in relation to the adequacy of medical certificates provided to the Court (NAKX at [6]-[9]). All this Court has before it is a pro forma medical certificate which is not of assistance. The medical certificate certainly does not satisfy the Court that the Applicant is unable to attend the hearing today. For those reasons, I refuse the Applicant's application for an adjournment. 8 After refusing the adjournment, the primary judge proceeded to dismiss the applicant's application pursuant to FCCR rule 13.03C(1)(c), which provides: Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following: … (c) if the absent party is an applicant--dismiss the application; …

BQD17 v Minister for Home Affairs

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