Australian Immigration Daily News

What can you do if you have a client who has unexpectedly become unwell shortly before a hearing at the Administrative Appeals Tribunal?

What kind of documentation do you need to provide to the Tribunal in support of a request for an adjournment?

Or to put it alternatively, what kind of documentation should you file to preserve your client’s rights if the Tribunal refuses to grant an adjournment, decides the case against your client, and your client wants to take the case to the Federal Circuit Court to argue that the Tribunal’s refusal to grant the adjournment amounted to “jurisdictional error”?

These very practical, down-to-earth, “nuts and bolts” questions were raised by a case that was decided by Judge Jones of the Federal Circuit Court of Australia in the case of Kaur & Ors v Minister for Immigration & Anor  (2017) FCCA 898 (6 April 2017)(just updated on Austlii on 27 June 2017).

This was the situation in Kaur:

The applicant had applied  for a further student visa while on shore in Australia, and this application was refused on the basis that the applicant had failed to demonstrate that she was a genuine applicant for entry and stay as a student on a temporary basis.

A hearing on the case had been scheduled for 12 May 2016.

However, 2 days before the hearing, on 10 May 2016, the applicant sent an email to the Tribunal claiming that she had been hospitalized since the previous day because of health problems and that she would not be able to attend the hearing.

The Tribunal then wrote back to the applicant, advising her that her request for an adjournment had not been granted, but that it would consider a certificate from her treating doctor that outlined in detail the nature and history of her medical condition, her future prognosis, and the reasons why she would be unable to appear before the Tribunal.

The applicant then provided to the Tribunal, through her migration agent, a discharge plan which said no more than that the applicant had been discharged from the hospital, and that there should be a follow up with her general practitioner in the next three or four days.  The discharge plan did not state what the applicant’s condition was, or what her prognosis was.

The applicant also provided an “Ordinary Medical Certificate” to the Tribunal which stated that the applicant was suffering from a medical condition and would be unfit to follow her daily occupation” up to the day before the  scheduled Tribunal hearing. 

After receiving these materials, the Tribunal wrote to the applicant to advise her that the medical evidence was not sufficient, refused the adjournment, and proceeded to determine the merits review application by affirming the refusal.

So, was the Tribunal’s decision to refuse the adjournment legally unreasonable, and did it amount to jurisdictional error?

Not in the view of Judge Jones.

Her Honor found that the evidence was insufficient because it did no more than state that the applicant was suffering from a “medical condition”; it did not indicate why the applicant would not be able to participate in a hearing, even by telephone.  And the Ordinary Medical Certificate did not even state that the applicant would be unfit on the day of the hearing itself.

An earlier decision, that was referred to by Judge Jones in Kaur, the Federal Court case of NAKX v Minister for Immigration & Multicultural & Indigenous Affairs  provides further guidance about the nature of medical evidence that is needed in order to support a request for an adjournment.

In NAKX,  the Court found that medical certificates that were relied on in support of an adjournment request were unsatisfactory because they did not address whether the medical condition would prevent the applicant from travelling to the Court and participating effectively in the hearing, and they did not explain why the medical condition would have that effect.

It goes to show that relying on a form “medical certificate” that does not provide detail, but that simply says that an applicant is suffering from “x” medical condition and is therefore unable to attend court, is a hazardous exercise that can put the client in peril of having the Tribunal refuse an adjournment, proceed in the applicant’s absence, and determine the matter adversely.

The lesson: beware, and make sure that the medical evidence given to the Tribunal does identify the medical condition that the applicant is suffering from, describe how long the client has been suffering from the condition and what the client’s prognosis is, and that it explains why the condition would prevent the client from travelling to the Tribunal and why it would prevent the client from participating effectively in the hearing.