Singh v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an appeal by Mr Dinesh Singh from a decision of the Federal Circuit Court, dated 24 September 2015, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. On 19 May 2014, the Tribunal affirmed a decision of the delegate of the first respondent to refuse to grant a Skilled (Residence) (Class VB) visa to the appellant under s 65 of the Migration Act 1958 (Cth). The appellant has not appeared at the hearing today, but on Friday sent a fax to the court requesting postponement of the hearing date to some date after 14 March. The reason given for his request was that he was suffering from a spinal condition which requires chiropractic treatment which he expects to cease after 14 March. The communication from the appellant was accompanied by "a medical certificate/certificate of incapacity" by a Dr Michael Carbone who appears to practise as a chiropractor. The certificate says that Mr Singh attended the clinic last Friday and was found to be suffering from a spinal condition that requires chiropractic treatment. Dr Carbone expressed his opinion in the certificate that further treatment will be required and that the appellant 'will be unfit for physical activity' but should be able to resume on 14 March 2016. The Minister opposes the adjournment and seeks an order dismissing the appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). 2 I should deal with whether an adjournment should be granted before considering the Minister's application. An application for an adjournment in generally similar circumstances was rejected by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. His Honour said at paragraphs 5 to 11 in that case: 5 The medical certificate dated 13 December 2003 in respect of the male applicant states as follows: 'This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.' The certificate of the same date in respect of the female appellant states: 'This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.' 6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing. 7 I do not accept that either of the medical conditions referred to would make the sufferer 'unable to attend court' - apparently each was able to attend upon the medical practitioner. 8 If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect. 9 I take into account the fact that the two medical certificates are structured identically, use the expression 'he/she', and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking. 10 In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]-[8] above. 11 I refuse the application for an adjournment. The case indicates that what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing. In this case, neither the certificate by Dr Carbone, nor the letter enclosing it from the appellant, establishes why the appellant would be unable to attend court. We know from the certificate and the letter that the appellant has a spinal condition. We know also that it requires chiropractic treatment. We do not know what the spinal condition is or why the spinal condition would prevent him from attending court. The certificate says that the appellant is unfit for physical activity, but that description is of such a generality as to be unhelpful. It does not assist the court to evaluate why it is or how it is that the appellant's condition would prevent him from attending court. A certificate of the kind relied upon by the appellant does not assist him to make the case for an adjournment of a court hearing. Accordingly I find the certificate to be insufficient to warrant the grant of an adjournment. In addition, it was provided only on the last business day before the hearing, with no explanation about why the certificate was obtained only the last business day before the scheduled hearing of Mr Singh's appeal, or why the application for the adjournment was not made until then. These are all circumstances that militate against the grant of an adjournment. If the appellant had a condition of the kind that prevented him from attending court, an application should have been made earlier, and if there was some reason why it could not have been made earlier, that needed to be explained in his application. That has not occurred and the application for adjournment is rejected. 3 I turn then to the Minister's application for an order under r 36.75 that the appeal be dismissed on the basis that the appellant is not present. The appellant has been called and he has not appeared. That is unsurprising in view of the communication last Friday indicating that he would not be here today. The appellant, however, has had no reason to assume the matter would not proceed without him today. In those circumstances, I am satisfied that there is basis to make the order which the Minister seeks under r 36.75 dismissing the appeal. I should also add for completeness that I have had the benefit of reading the material that had been filed in advance of the hearing today and on the basis of that material am confident that there is no basis upon which the appeal was likely to succeed. The appeal rested fundamentally upon the fact of the existence of a marital relationship which he had conceded no longer existed and which in the circumstances he was unlikely to establish for the purposes of the appeal today. Nothing filed by the appellant in the appeal would indicate that the decision of the Federal Circuit Court was in any way erroneous. Although the proceeding is not being heard on the merits, but on the basis of an absence of the party to appear, the apparent lack of strength of the merits adds to my conclusion that it is appropriate to dismiss the appeal by reason of his absence. 4 The orders will be to dismiss the appeal with costs. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.