Nayeck v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of what was the Federal Magistrates Court of Australia and is now the Federal Circuit Court of Australia. The judgment was published as Nayeck v Minister for Immigration and Citizenship & Anor [2013] FMCA 88. The primary judge dealt with an application for judicial review of a decision of the Migration Review Tribunal dated 18 June 2012. 2 The primary judge dismissed the appellant's application for judicial review. Thereafter the appellant brought this appeal. When the appeal was called on this afternoon the appellant did not appear. A facsimile message was communicated to the Registrar of the Court and has been brought to my attention. The facsimile refers to the proceeding and is signed in the name of the appellant. Relevantly, the facsimile states that the appellant is writing to inform the Court that the appellant is not able to attend the hearing today due to an illness. Attached to the facsimile is a medical certificate from Dr Peter L Meyer of Box Hill. The certificate states: This is to state that Ms Jayshree Nayeck attended for a consultation today for management of a viral respiratory infection. 3 The certificate says nothing else. 4 Counsel for the first respondent identified two possible courses for the Court to take. Counsel says, and I agree, that the communication from the appellant might be regarded as an implied application for an adjournment. Counsel for the first respondent submits that such an adjournment application should be rejected and submits that either the Court should dismiss the proceeding on the basis of the appellant's non-attendance or alternatively, the Court should dismiss the appeal having dealt with it on its merits in the absence of the appellant. 5 I agree that the application for an adjournment should be rejected. The medical certificate provided by the appellant is not adequate to explain the absence of the appellant from Court today. The certificate says nothing other than that the appellant attended for management of a viral respiratory infection. It does not say that there would be any difficulty by reason of the appellant's health for the appellant to have attended today's appeal. In Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394, Gray J dealt with and dismissed a similar application. 6 As the reasons for judgment in that matter reveal, his Honour gave consideration to the courses open to the Court and decided that the preferable course was to dismiss the appeal for failure of the appellant to attend the hearing rather than to attempt to deal with the appeal on its merits in the absence of the appellant. As his Honour said at [12]: To deal with the merits of the appeal in the absence of the appellant might do the appellant an injustice if the appellant has a genuine medical condition that effectively prevented him from attending at the Court. 7 If the Court dismisses the appeal by reason of the non-attendance of the appellant, it is open to the appellant to apply to set aside that judgment on a subsequent occasion. Counsel for the first respondent accepts that course is open if the Court dismisses the appeal on that basis. 8 It seems to me that the interests of justice will be best served by making an order dismissing the appeal on the ground of the failure of the appellant to attend the hearing. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), provides the Court with the power to make an order that an appeal be dismissed for failure of an appellant to attend a hearing relating to the appeal. I note also that r 36.75(a)(i) of the Federal Court Rules also provides that the Court may order an appeal be dismissed in circumstances where the appellant has not appeared. 9 For those reasons I will make orders that the appeal be dismissed and that the appellant pay the first respondent's costs of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.