MZABB v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant has applied for leave to appeal a decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of a decision of the second respondent ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the first respondent ("the Minister") not to grant the applicant a Protection (Class XA) Visa pursuant to s 65 of the Migration Act 1958 (Cth). The FCC dismissed that application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") in default of appearance by the applicant. 2 On the day before the hearing of the application for leave to appeal the FCC decision, the Court received a fax from the applicant stating that due to a medical condition he is unable to attend the hearing. He attached a leave certificate from a pharmacist who stated that: … on 9 February 2015, [the applicant] presented at [the] pharmacy. In my professional opinion, based on the information provided to me at this time, he will be unable to attend work for the period commencing 9 February 2015 until 10 February 2015. This opinion was provided in my capacity as a pharmacist for the purpose of informing the employer of the named person that he is unfit for work due to illness/injury. 3 Although not expressly stated, it may be inferred that the fax is to be treated as an adjournment request. As the leave certificate does not explain the nature of the applicant's condition nor explain why that condition would prevent him from attending and participating effectively in the Court hearing, I do not accept it as providing a satisfactory reason as to why the applicant is not here today. The adjournment application is refused. 4 The application for leave should be dismissed. Rule 13.03C(1) of the FCC Rules provides that if a party to a proceeding is absent from a hearing, the Court may, if the absent party is an applicant, dismiss the application. The FCC's reasons for decision record that two days before the hearing date, the applicant informed the FCC by fax that he was not physically able to attend the hearing and annexed a medical certificate in support. The medical certificate simply stated that the "applicant has a medical condition and will be unfit for work from 8 September 2014 to 11 September 2014 inclusive". The FCC treated the letter as an application for an adjournment. The FCC rejected the certificate as sufficient support for the application for adjournment, reasoning that the medical certificate did not explain why the applicant's medical condition prevented him from attending the hearing. Accordingly, the FCC exercised its power under r 13.03C(1) to dismiss the judicial review application in default of the applicant's attendance at the hearing. This Court would only interfere with that exercise of power if it was shown that the exercise of the discretion to refuse the adjournment application miscarried: Singh v Minister for Immigration and Border Protection [2013] FCA 1353 at [15]. No error of law is shown. It was clearly open to the FCC for the reasons given not to accept the medical certificate as sufficient satisfactory evidence of inability to attend Court and to dismiss the appeal in those circumstances: NAKX v Minister for Immigration and Border Protection [2013] FCA 1559. 5 The applicant's affidavit in support of his application for leave to appeal does not advance his case. The applicant deposed that he was unable to attend the hearing before the FCC and was of the belief that the FCC would still go ahead and read his written submissions and then make a decision on the facts. The FCC had the power to dismiss the application for judicial review in default of the applicant's appearance. It did so and no error has been shown in the exercise of that power. 6 The application should be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.