Ghouse v Minister for Immigration

[2013] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GHOUSE v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 211

MIGRATION – Application to review decision of Migration Review Tribunal – applicant fails to appear – application dismissed.

Migration Act 1958 (Cth)
Federal Magistrates Court Rule (Cth) 13.03C(1)(c)

Applicant: SYED GHOUSE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 110 of 2012

Judgment of: Simpson FM

Hearing date: 18 March 2013

Date of Last Submission: 18 March 2013

Delivered at: Adelaide

Delivered on: 18 March 2013 – ex tempore

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Pursuant to Federal Magistrates Court Rule 13.03C(1)(c), the application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 110 of 2012

SYED GHOUSE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore Reasons)

1. I will just give some brief reasons.  In this matter the applicant, Syed Ghouse, has failed to appear.  His name has been called three times and he has, as I say, not appeared. 

2. The applicant forwarded to the Court a letter dated 12 March 2013 which he said, and I read this verbatim:

   “I wish to formally notify the Court but I am sick and unfortunately due to my illness I will not be able to attend the hearing scheduled for next Monday, 18 March 2013.  Attached please find a medical certificate.  Please accept my apology for any inconvenience and kindly adjourn the hearing and notify me accordingly.”

3. Attached to that letter received by the Court on, I think, 13 March 2013 is what is said to be a medical certificate of Dr Moniruzzaman.  That medical certificate is dated and signed 12 March 2013.  The certificate says:

   “This is to certify that on 12 March 2013 I examined the above named person stop who attended here regarding a medical condition and will be unfit for work 18 March 2013 inclusive.”

4. I take that to mean unfit for work from the date of the certificate through until 18 March 2013. 

5. The medical certificate says nothing about the applicant being unfit to attend Court.

6. I am informed by counsel for the respondent that contact was made with the medical practitioner who provided the medical certificate and that the doctor confirmed that the medical certificate was genuine.  He also said that the applicant in the proceedings was perfectly capable, from a medical point of view, to attend Court today. 

7. I am informed that an email was sent by the respondent to the applicant on 13 March which was in the following terms:

   “Dear Mr Ghouse

   We have today spoken with the medical practitioner who certified that you were not fit for work on 18 March 2013.  We were told that you did not mention to him that you had a Court case and that you could not attend work because you had a medical appointment on 18 March 2013.  The medical practitioner indicated that there was no medical reason preventing you from attending Court on 18 March 2013.  Please note that if you fail to attend the hearing on 18 March, we will be applying to have the matter dismissed for non-attendance with costs fixed in the sum of $6471.  We might also draw the Court’s attention to this email in support of any application for summary dismissal. 

   Kind regards, Paul.”

8. That letter was sent to the applicant using email address: [email protected] which is the email address shown on an affidavit that was filed by the applicant on 6 May 2012.  I think it’s fair to conclude that the applicant received the email sent by the respondent’s solicitors. 

9. Notwithstanding that email being sent, the applicant has not appeared today.  In those circumstances I consider it appropriate that I dismiss the application pursuant to Federal Magistrates Court rule 13.03C(1)(c) which says:

   “If a party to a proceeding is absent from a hearing, including a first Court date, the Court may …

   … If the absent party is an applicant, dismiss the application.”

10. I propose to dismiss the application and award costs in the sum of $6,471.00.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date:  27 March 2013