FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2017] FCA 216 Appeal from: Singh v Minister for Immigration and Anor [2016] FCCA 2929 File number: VID 1314 of 2016 Judge: MURPHY J Date of judgment: 6 March 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court – request for adjournment on the basis of mother's medical condition – inadequate medical certificate – adjournment refused – appeal dismissed for non-appearance Legislation: Federal Court of Australia Act 1976 Federal Court Rules 2011 Cases cited: NAKX v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559 MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 Kaur & Ors v Minister for Immigration and Border Protection [2016] FCA 565 (Murphy J). Date of hearing: 6 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 1314 of 2016 BETWEEN: RANDHIR SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MURPHY J DATE OF ORDER: 6 MARCH 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the First Respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (revised from transcript) MURPHY J: 1 The appellant is a citizen of India. He arrived in Australia on a student visa in August 2009 to study hospitality at the vocational level. On 28 November 2013 he applied for a Student (Class TU) visa to study a Diploma of Management and a Diploma of Business in Australia (the visa). On 9 May 2014 a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to grant the visa. On 19 May 2014 the appellant applied for review to the Migration Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal), but the Tribunal affirmed the delegate's decision. On 15 December 2014 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision but the Federal Circuit Court dismissed the application (Singh v Minister for Immigration and Anor [2016] FCCA 2929). 2 The appellant now appeals to this Court from the decision of the Federal Circuit Court. 3 On 25 February 2017 the appellant informed the Court and the solicitors for the Minister that he sought an adjournment of today's hearing. The Minister informed the appellant that the application was opposed. The appellant did not appear when the matter was called on for hearing today. 4 For the reasons I explain, I consider the request for adjournment should be refused. Based on the appellant's non-appearance the Minister applied for the appeal to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the Act) and rule 36.75 of the Federal Court Rules 2011 (the Rules). I have made orders to dismiss the appeal and for the appellant to pay the first respondent's costs. The request for adjournment 5 On 22 November 2016 a District Registrar notified the appellant that the appeal would be fixed for hearing in the period 13 February to 10 March 2017. The appellant was directed to file and serve a written outline of submissions not later than 10 business days before the hearing of the appeal. He did not do so. 6 On 20 December 2016 the appellant was notified that the appeal was fixed for hearing on 6 March 2017 at 2.15 pm. 7 On 25 February 2017 the appellant sent an email to the Court and to the solicitors for the Minister. Attached to the email was a document which purported to be an affidavit sworn by the appellant before a Notary Public on that date, with a purported medical certificate which related to medical conditions suffered by his mother, Ms Parsan Kaur. 8 The affidavit stated only: 1 That my mother Parsan Kaur is suffering from heart problem and serious. So I cannot present before court on dated 6th March 2017. 2 That I request to you please provided another date for hearing my case. [sic]. The address provided on the affidavit indicated that the appellant was in Village Mial Kalan, in Tehsil Samana District in Punjab, India. 9 The medical certificate was from Dr Aman Garg of Dr Johri's Multispecialty Hospital in Samana, India dated 25 February 2017. It stated: Certified that Parsin Kaur w/o Handeep Singh is an old case of diabetes and hypertension. She is a known case of CAD under treatment. The certificate was apparently signed by Dr Garg and by Ms Kaur. 10 On 27 February 2017 the solicitors for the Minister sent an email to the appellant advising that the Minister did not agree to an adjournment and informing him that he may ask the Court to arrange for hearing by telephone if he was unable to attend in person. The email said that should the appellant fail to attend the hearing (either in person or by telephone) the Minister would request the Court to dismiss the appeal with costs. 11 The appellant did not apply to attend the hearing by telephone and did not make a formal application for an adjournment. The appellant did not appear when the matter was called on for hearing. 12 The Minister opposed the application for an adjournment on the grounds that: (a) the medical certificate did not provide any proper basis for an adjournment; and (b) the appellant was on notice that the application was opposed, and did not seek to appear by telephone. 13 In my view the application for an adjournment should be refused. I say this, first, because for a medical certificate to be meaningful it must establish why it is or how it is that an appellant is unable to attend the hearing: NAKX v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[11] (Lindgren J); MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2]; (Pagone J); Kaur & Ors v Minister for Immigration and Border Protection [2016] FCA 565 (Murphy J). 14 In the present case the purported medical certificate relates to a medical condition allegedly suffered by Ms Kaur, the appellant's mother, rather than to any medical condition from which the appellant suffers. Obviously, it is not the appellant's mother who was required to attend the Court on the hearing of the appellant's appeal. I do not attempt to lay down a general rule, but in the present case the certificate could only support an application for an adjournment if it showed that Ms Kaur's medical condition was such that the appellant could not be away from her for approximately one week so that he could attend the appeal hearing in Australia. 15 The evidence falls far short of this. The medical certificate states only that Ms Kaur is "an old case of diabetes and hypertension" and that she is a "known case of CAD under treatment". I take CAD to be a reference to coronary artery disease. There is nothing in the certificate to indicate that her condition is severe or that the appellant could not be away from her for a short period. Indeed, the certificate tends to indicate that Ms Kaur's condition is a chronic long-standing condition rather than one which is acute or critical. 16 In the purported affidavit the appellant swears that his mother's medical condition is "serious" but, even if I accept that evidence, it says little. Her medical condition may be serious while still allowing a family member who is providing support to be away for approximately one week. I give little credence to the view the appellant expresses as to the seriousness of Ms Kaur's medical condition. To justify an adjournment a medical practitioner should have expressed a view as to the severity or acuteness of her condition, and there is no such evidence before the Court. 17 Second, and relatedly, there is no evidence to show that Ms Kaur requires to be looked after at all times such that it would be unsafe or inadvisable for the appellant to be away from her for approximately one week. 18 Third, (if it is accepted that Ms Kaur suffers from an acute condition) there is no material which goes to whether other family members, relatives or friends could provide support for Ms Kaur while the appellant attended the appeal. It would be somewhat surprising if there was no one able to do so. 19 Fourth, the appellant was on notice from 27 February 2017 that the Minister opposed the application for adjournment. In that circumstance I would expect the appellant to have filed and served a formal application for an adjournment supported by better material. He did not do so. Alternatively, I would expect the appellant to have applied to the Court to appear by telephone. The Minister could not have opposed that course when it had specifically invited him to make that application. Again, the appellant did not do so. 20 The appellant did not attend the hearing and did not give an adequate explanation for his absence. Section 25(2B)(bb)(ii) of the Act and r 36.75(1)(i) of the Rules provide that if an appellant is absent when an appeal is called on for hearing the Court may dismiss the appeal. In my view it is appropriate to accede to the Minister's application that the appeal be dismissed and the appellant be ordered to pay the Minister's costs. 21 I am fortified in this view by the apparent lack of merit in the appeal. I have considered the Tribunal's decision and the judgment of the Federal Circuit Court and I cannot discern any jurisdictional error in the Tribunal's decision, nor any appealable error in the decision of the primary judge. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate: Dated: 7 March 2017