Applicant M85 of 2004 v Minister for Immigration
[2008] FMCA 514
•11 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M85 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 514 |
| MIGRATION – Failure by applicant to attend court – application dismissed for non-attendance – application to set aside earlier order dismissing for non-attendance – no adequate reasons given for non-attendance – application dismissed. |
| Applicant: | APPLICANT M85 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1035 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 11 April 2008 |
| Date of last submission: | 11 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2008 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondents: | Ms Thompson |
| Solicitor for the Respondent: | Clayton Utz |
ORDERS
That the Application filed 19 March 2008 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1035 of 2007
| APPLICANT M85 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
On 18 February 2008, this matter came before the Court. When it did so, the Court was provided with a medical certificate what purported to be an illness certificate from the Mid-Town Medical Clinic. The illness certificate asserted that the Applicant had a medical condition which made him unable to attend work for two days being 18th and 19th of February 2008.
It is not necessary for me now to repeat what I then said, but it is sufficient to know that I dismissed the application for non-attendance. That took place on 18 February 2008, and the orders of the Court were posted to the Applicant at his address as given to the Court on or about that date.
On 19 March 2008, over a month later, the Applicant filed an interim application which says, relevantly:
I was sick on that particular and next few days. Please reinstate my application as I did not receive this paper from Federal Magistrate due to different address and miscommunication. (sic)
I would infer that what the Applicant was saying was that he didn't get the Court's orders because he had moved address. I note that the interim application has a different address in Auburn Road, Hawthorn, to the one that had previously used.
He also filed an affidavit the same day in which he said, relevantly:
I was sick on 18 Feb and following few days thats why i didn't attend my hearing. i would like to reinstate my matter and ask Burchardt FM to lisen to my points please. As this is very important for my life. I have been sick in month of march as well and thats why got bit late. (sic)
To round out the factual assertions, the Applicant has not attended Court today but appears to have rung the registry and indicated that he has food poisoning and is going to his doctor this morning.
There are a number of points to be made. First of all, the certificate provided in February was not deemed by me to be sufficient to explain the Applicant's non-attendance on that day. It would have been possible for him to have gone to his doctor and got a proper certificate explaining whether or not his illness on or about that time, was so debilitating such as to prevent him from attending Court.
It would also have been possible for the Applicant, even if he could not get an affidavit or letter from his doctor, to have put on affidavit what his own symptoms were and the extent of them in some sort of believable or compelling way, such as to suggest he was in truth unable to attend Court on that date.
I note that he has not complied with earlier orders of the Court as to the filing of materials. I accept that he is self represented, but the fact is, he knew about those orders and has made no attempt whatsoever to comply with them.
Today, one cannot help but note the tension between his affidavit which says he didn't make an earlier application because he was ill, and the application which is asserted that the reason for that delay is a change of address. These two matters are not mutually exclusive, and one does need to bear in mind that the Applicant is representing himself and on his materials as filed, has some difficulty expressing himself in English.
I am prepared to accede to the submission of the First Respondent that the matter should proceed today. The fact is that his non-attendance simply is not explained. More particularly, his earlier absence is not properly explained.
Even if I was to prepared to give him the benefit of the doubt today and accept that he has been struck down by misfortune, the fact is that he has simply not put before the Court any materials adequately, in my view, explaining why he did not attend on the previous occasion.
Further, there is nothing in what he has filed to suggest that his attendance and further oral submissions would have advanced the matter in any way.
I am going to dismiss this application. What I am dismissing is the interim application to set aside the earlier orders that I made and I do so as I say, because I do not see that the materials filed in support of that application are in any way sufficient to achieve the result that the Applicant seeks, so therefore the application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 11 April 2008
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