FEDERAL COURT OF AUSTRALIA

MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 

Citation:	MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209	
		
Appeal from:	MZZTC v Minister for Immigration & Anor [2015] FCCA 2321	
		
Parties:	MZZTC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL	
		
File number:	VID 446 of 2015	
		
Judge:	PAGONE J	
		
Date of judgment:	5 November 2015	
		
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia

PRACTICE AND PROCEDURE – appeal from Federal Circuit Court of Australia – no appearance by appellant at hearing of appeal – request for adjournment – medical certificate – inadequate explanation for failure to appear – dismissal for non-appearance 	
		
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb) Federal Court Rules 2011 (Cth) r 36.75 	
		
Cases cited:	MZZGY v Minister for Immigration and Border Protection [2014] FCA 488
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2014] FCA 538	
		
Date of hearing:	5 November 2015	
		
Date of publication of reasons:	10 November 2015	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	5	
		
Counsel for the Appellant:	The appellant did not appear	
		
Counsel for the Respondents:	Mr A Aleksov	
		
Solicitor for the Respondents:	Sparke Helmore	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 446 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	MZZTC
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	PAGONE J	
DATE OF ORDER:	5 NOVEMBER 2015	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The appeal be dismissed with costs.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 446 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	MZZTC
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	PAGONE J	
DATE:	5 NOVEMBER 2015	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
(Revised from transcript)
1		This is a proceeding by way of appeal from a decision of the Federal Circuit Court brought by the appellant on 24 August 2015.  The matter was listed for hearing today and was called on in the usual way.  My chambers was informed by the respondent yesterday that the appellant had informed the respondent that he would not be appearing at the hearing today and had provided to the respondent a medical certificate dated yesterday.  I have been given a copy today of an email, which appears to have been sent by the appellant to the respondent on 3 November 2015, in which he informs the respondent that he would not be able to attend court on 5 November and asks for the date of the hearing to be changed.  The email is dated 3 November 2015 at 11:24pm and informs the respondent that the appellant was “in Brisbane” and was “really sick”.  The other document that I have been handed today is a certificate dated 4 November 2015 signed by a Dr Affan Qazi, practicing in Loganholme, Queensland.  The certificate states that the doctor examined the appellant on 4 November and that the appellant was suffering from lower back pain.  The certificate is a typed form with such details as apply to the appellant filled in by hand.  The details filled in by hand are the appellant’s name, the description of the condition as being that the appellant was suffering from “lower back pain”, and the period in which the appellant was said to be “unfit for duty” as being from 4 November 2015 to 6 November 2015.
2		It is unfortunate that certificates of this kind are provided to the court because they are unhelpful to the court and to the appellant.  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 [5]-[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 indicated that what needs to be provided, for a certificate to be meaningful, is material that establishes why it is, or how it is, that an appellant suffering from a medical condition would be unfit for participation at a hearing in court.  A description such as “unable to attend court”, as his Honour considered in that case, was unsatisfactory.  The more generalised description of Dr Qazi in this case of the appellant having “lower back pain” is even less satisfactory.  It does not assist the court to evaluate why it is or how it is that his condition would prevent the appellant to attend court, and it does not help the patient, the appellant, in making the case that he needs to make.  Doctors providing certificates of this kind assist nobody although, of course, there is no reason to assume that what is needed has been brought to their attention.
3		It is also unclear whether the condition that the doctor identified is the operative reason for the appellant not being able to attend court today.  The fact is that the doctor appears to practice in Queensland and, to that extent, appears to have diagnosed the appellant yesterday in Queensland.  It is not clear how it is that the appellant would have been able to appear in court today.  It is, of course, possible that he might have sought to appear by video link, but it is not clear whether his physical absence from the precinct of the court in Victoria is the operative reason for being unable to attend the hearing today.  I note that in that regard, in the email the appellant wrote on 3 November 2015, he gave two reasons for his inability to attend court today, one of which was that he was then in Brisbane.  
4		In those circumstances, I reject the application for an adjournment and propose to deal with the matter on the basis upon which the Minister has urged that I do so.  In doing so, I refer also to the decision of Davies J in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 at [12]-[13] and my own decision in Singh v Minister for Immigration and Border Protection [2014] FCA 538, at [2]-[4].
5		The appellant is not present in court and the Minster seeks an order that I dismiss the proceeding pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) and s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).  The latter provides that a single judge may make an order that an appeal to the court is dismissed for a failure by an appellant to attend a hearing relating to the appeal.  Rule 36.75 of the Federal Court Rules 2011 (Cth) provides:
(1)	If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)	if the absent party is the appellant:

(i)	the appeal be dismissed; or
(ii)	the hearing be adjourned; or
(iii)	the hearing proceed only if specified steps are taken; […]
In this case, the respondent has sought an order for the appeal be dismissed.  The matter was called on for hearing today.  The appellant was not present.  His application for an adjournment has been rejected and accordingly, I will dismiss the appeal pursuant to the provisions relied upon.  I should add the following observation, however, for completeness.  In preparation for the hearing today, I have read the notice of appeal dated 24 August 2015, the appellant’s accompanying affidavit dated 24 August 2015, the Minister’s outline of submissions dated 29 October 2015, the decision of the Tribunal dated 29 August 2013 and the decision of Judge Riley of the Federal Circuit Court delivered on 12 August 2015.  It appeared to me from reading this material in preparation for the hearing today that the grounds in the notice of appeal and accompanying affidavit were, in any event, insufficient to justify the appeal succeeding and I would, therefore, also have dismissed the appeal on the merits if it had been necessary to do so.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.	

Associate:  

Dated:	5 November 2015