Khan v Minister for Immigration & Multicultural Affairs
[1999] FCA 657
•13 MAY 1999
FEDERAL COURT OF AUSTRALIA
Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 657
MIGRATION – review of a decision of the Refugee Review Tribunal – no appearance by the appellant.
MD SAZZAD ALAM KHAN v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRSNG 18 of 1999
HILL, WHITLAM AND KIEFEL JJ
13 MAY 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 18 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
BETWEEN:
MD SAZZAD ALAM KHAN
AppellantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RespondentJUDGE:
HILL, WHITLAM AND KIEFEL JJ
DATE OF ORDER:
13 MAY 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant pay the Respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 18 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
BETWEEN:
MD SAZZAD ALAM KHAN
AppellantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HILL, WHITLAM AND KIEFEL JJ
DATE:
13 MAY 1999
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
HILL J: The appeal in these proceedings was listed for hearing before a Full Court on 10 May 1999. On that day the Appellant did not turn up but instead wrote a letter in which he said that he had fallen victim to a serious accident and injured his back and was completely bed-ridden. He enclosed with that letter a medical certificate in the following terms:
“This is to certify that Mohamed Khan is sick and he is suffering from back pain. He is unable to attend his usual work from 10 May 1999 to 12 May 1999”.
The Appellant sought in the letter an adjournment of the proceedings to a later date. The Court contacted the Appellant on that day. There was some difficulty with the Appellant's English and he requested that the Court communicate with a friend of his, Mr Boni Amin, who could then translate for him communications from the Court.
The Court acceded to an adjournment on that day, notwithstanding that the adjournment was opposed by the respondent Minister. Among the matters urged by the Minister in not acceding to an adjournment was the fact that the Appellant had, on a previous occasion, likewise sought an adjournment as a result of medical reasons.
The Court instructed a Registrar to contact Mr Amin and advise him that the appeal would be adjourned until today and further that the court had ordered the Registrar, through Mr Amin, to inform him that the matter had been stood over until Thursday morning and that the matter would proceed at that time unless an affidavit was filed from a medical practitioner detailing the Appellant's illness and why he was unable to attend court. We have been advised by the Registrar that pursuant to those orders he contacted Mr Amin. Subsequently Mr Amin advised the Registrar that a medical certificate had been obtained.
Mr Amin said that the doctor would not give an affidavit, but indicated that the Court could, if it so desired, contact the doctor by telephone. In due course a medical certificate was forwarded to the Court together with a letter from Mr Amin. That certificate indicates that the Appellant was suffering from lower back pain and was unable to work until 21 May 1999. The certificate indicates that the Appellant is to take Voltaren. It does not suggest there is any medication being given to him which would affect his ability to give evidence. It is significant that the certificate does not suggest that there is any impediment in the Appellant attending court and personally seeking an adjournment.
At my request, the Registrar telephoned Mr Amin upon receipt of the medical certificate and emphasised to him that the matter would proceed unless there was an affidavit filed or the Appellant himself attended the Court to seek an adjournment. Mr Amin was advised and asked to tell the Appellant that there was a high probability that if he neither attended nor produced an affidavit from the doctor his appeal would be dismissed. The appeal was called for hearing this morning and the Appellant did not appear. No affidavit from the medical practitioner has been filed.
The respondent Minister in the circumstances has submitted that the appeal should be dismissed in accordance with Order 32 rule 2 of the Federal Court Rules. The Court is of the view that the appeal should be dismissed and accordingly the Court orders that the appeal be dismissed and that the Appellant pay the Respondent's costs of the appeal.
WHITLAM J: I agree.
KIEFEL J: I agree.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 13 May 1999
Appellant: no appearance Counsel for the Respondent: P Braham Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 May 1999 Date of Judgment: 13 May 1999
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