Singh v Minister for Immigration and Border Protection

1. Pursuant to Rule 35.33(1)(a)(i) of the Federal Court Rules 2011 the application for extension of time and leave to appeal filed on 23 November 2015 be dismissed.
2. The applicant pay the first respondent's costs of the application for extension of time and leave to appeal and the first respondent's costs of his appearances on 25 May 2016 and 27 May 2016 necessitated by the applicant's applications for adjournment as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 In this matter the applicant seeks an extension of time and leave to appeal from orders made and judgment given on 3 November 2015 in the Federal Circuit Court of Australia (Federal Circuit Court). The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal, made on 23 September 2014 affirming a decision of the delegate of the first respondent (the Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa. 2 The applicant's application was dismissed by the Federal Circuit Court at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. Rule 44.12(2) provides that a dismissal under para (1)(a) is interlocutory. Accordingly, the applicant requires leave to appeal from the judgment and orders made by the Federal Circuit Court. As the application for leave to appeal was filed outside the time permitted by the Federal Court Rules 2011 the applicant also requires an extension of time. 3 The applicant filed his application for leave to appeal and extension of time on 23 November 2015, together with an affidavit which he had sworn in support of that application. The application was initially listed for hearing before me on Wednesday, 25 May 2016. 4 On 24 May 2016 the applicant filed an affidavit to which he annexed a medical certificate. In that affidavit he said that he (as written): is not able to come because I am not feeling well with back pain, so plz give me another date … 5 The medical certificate annexed to the affidavit was signed by Dr Trent De Francesco. The certificate, which was completed on 24 May 2016, states that the applicant: … is receiving medical treatment and for the period, Tuesday 24 May 2016 to Wednesday, 25 May 2016 inclusive he will be unfit to continue his usual occupation. 6 On 25 May, when the matter was called for hearing, there was no appearance on behalf of the applicant. In light of the medical certificate that had been provided, and over the objection of the Minister, I vacated the hearing date and stood the hearing of the application for extension of time and leave to appeal over to Friday, 27 May 2016 at 11.30 am. 7 On 26 May 2016 the applicant filed a second affidavit to which he annexed another medical certificate. In that affidavit, he said (as written): I am not physically fit with my fevour pain and digoustion problem. So plz give me some time to maintain my health to attend it … 8 The medical certificate which was annexed to that affidavit was completed on 26 May 2016 by Dr Trent De Francesco and certified that the applicant: ...is receiving medical treatment and for the period Thursday, 26 May 2016 to Saturday, 28 May 2016 inclusive he will be unfit to continue his usual occupation. At the bottom of the medical certificate was an undated copy of what appeared to be a referral for the applicant to undergo certain tests. 9 On 27 May 2016, when the matter was called, there was no appearance by the applicant. Once again, over objection by the Minister, I vacated the hearing date and stood the application for extension of time and leave to appeal over for hearing to today at 2.15 pm. I made the following order: If the applicant intends to apply for a further adjournment, based on his medical condition, he will be required to provide a medical certificate which in turn indicates whether he is fit to attend court, if not, the nature and detail of the medical condition which prevents him from attending court, and why that condition prevents him from attending court and the date on which he will be fit to attend court. In the absence of a medical certificate with that detail the Court will proceed with the application. 10 I also ordered that the Minister was to notify the applicant of the adjourned hearing date by letter, enclosing a copy of the orders made, to be sent by courier to the applicant's address for service and to be despatched on 27 May 2016 and that a copy of the letter and the orders be sent to the applicant's email address as recorded on his affidavit. 11 The Minister tendered evidence showing that his solicitors despatched a letter notifying the applicant of the adjourned hearing date and providing a copy of the orders made on 27 May 2016 to the applicant at his address for service, and that the letter was received. 12 This morning, the applicant filed a further affidavit, purportedly sworn today, in which he says (as written): I am not physically fit with my fevour pain, and digoustion problem. So plz give me some time to maintain my health to attend it … 13 Annexed to that affidavit is a medical certificate from Dr Ronak Khabaz Ghazvini. The medical certificate was completed on 30 May 2016 but is not signed. It certifies that the applicant: … is receiving medical treatment and for the period Monday, 30 May 2016 to Wednesday, 1 June 2016 inclusive he will be unfit to continue his usual occupation. 14 The medical certificate that has been provided today does not comply with the orders I made on 27 May 2016. 15 The Minister has submitted that the application should proceed today and has applied, pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (the Rules), for the application to be dismissed. That rule provides that if a party is absent when an application under r 35.14 is called on for hearing, any other party may apply to the court for an order that, if the absent party is the applicant, the application be dismissed. When the matter was called for hearing at 2.15 pm today, including three times outside the courtroom, there was no appearance by the applicant. 16 In NAKX v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559 (NAKX) Lindgren J, upon an application being made for an adjournment based on medical certificates, said the following at [5] to [11]: 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. 17 The decision in NAKX has been followed by this Court on other occasions when adjournments have been sought based on medical certificates: see Singh v Minister for Immigration and Border Protection & Anor [2016] FCA 108; MZZTC v Minister for Immigration & Anor [2015] FCA 1209 (Pagone J). In both of those cases Pagone J refused adjournments on the basis of medical certificates provided to the court just prior to hearing, finding, as Lindgren J did in NAKX, that they were inadequate. 18 The medical certificates that have been provided by the applicant in this case do not explain whether and why the applicant's medical condition prevented him from travelling to court and participating effectively in a court hearing. The applicant has been given ample opportunity to either attend court or to provide a medical certificate which provides a full explanation of what is wrong with him and why it prevents him from attending court. The order that was made on 27 May 2015 put him on notice that that was what was required if he wished to apply for a further adjournment based on his medical condition. 19 The medical certificate which is annexed to the applicant's affidavit sworn today does not assist the applicant to make a case for an adjournment of the hearing today. The certificate is insufficient to warrant the grant of a further adjournment. In those circumstances I refuse the application for an adjournment by the applicant. 20 The Minister has applied for an order under r 35.33(1)(a)(i) of the Rules that the application be dismissed. When the matter was called today the applicant did not appear. In those circumstances I am satisfied that there is a basis to make the order which the Minister now seeks dismissing the application for leave to appeal and extension of time. 21 I also note that I have had the benefit of reading the material that has been filed prior to today. That is, the applicant's application for leave to appeal and extension of time, the affidavit sworn by the applicant and filed in support of that application, the affidavit sworn by Michelle Elizabeth Stone on 3 December 2015 on behalf of the Minister annexing documents relevant to the application and the Minister's outline of submissions. Based on that material I am of the view that there is no basis upon which the orders sought by the applicant in his application could be made and that the applicant was unlikely to establish that his proposed appeal had any prospects of success. Although the application has not been heard on its merits, the lack of strength of the application assists the conclusion that I have reached that it is appropriate to dismiss the application based on the applicant's absence. 22 In those circumstances I will make the following orders: (1) Pursuant to r 35.33(1)(a)(i) of the Rules the application for extension of time and leave to appeal filed on 23 November 2015 be dismissed. (2) The applicant to pay the Minister's costs of the application for extension of time and leave to appeal and the Minister's costs of his appearances on 25 May 2016 and 27 May 2016 necessitated by the applicant's applications for adjournment as agreed or assessed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.