M28 of 2004 v Minister for Immigration

[2005] FMCA 1605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M28 of 2004 v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1605

MIGRATION – Application for review of decision of RRT.

PRACTICE & PROCEDURE – Where the applicant did not attend court – where the court received a facsimile from the applicant stating that he was unwell – where that facsimile contained insufficient detail and could not be regarded as an application for an adjournment – whether preferable to proceed under Rule13.03A(c) or 13.03A(d) where both subject to application order.

Federal Magistrates Court Rules 2001, Rule 13.03A(c) and (d), 16.05

MZWPG v Minister for Immigration & Anor (No 2) [2005] FMCA 1373

Applicant: APPLICANT M28 OF 2004

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: MLG 1641 of 2005

Judgment of: McInnis FM

Hearing date: 27 October 2005

Delivered at: Melbourne

Delivered on: 27 October 2005

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondents: Mr W.S. Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal be added nunc pro tunc as a Second Respondent.

2. The application as amended be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

3. The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1641 of 2005

APPLICANT M28 OF 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant has not appeared on the scheduled hearing date despite having received, in the normal course of events, an amended notice of listing dated 26 September 2005.  The court is confident that the applicant would have received that amended notice fixing the matter for hearing this day on the basis that the court has received by facsimile transmission, purportedly from the applicant, correspondence yesterday from the applicant concerning today's hearing.

2. I should add that the only change to the hearing date was to bring the matter forward by one day, and from the file I am satisfied that proper due notice was given to the applicant at the appropriate address for service.  I am strengthened in that conclusion by the fact that the court has received a facsimile transmission yesterday which simply states the following:

   Sorry, I won't be able to come tomorrow.  I am not well at all.

3. The note signed purportedly by the applicant provides a contact number.  The facsimile transmission imprint indicates a time of 11.31 pm on 26 October 2005 and has on the same sheet a document purporting to be a medical certificate from Coburg Family Medical Centre, though not specifically identifying the medical practitioner who is the purported author of this certificate. 

4. The certificate itself purportedly refers to the applicant attending the medical centre on 26 October 2005 and simply refers to the word "medical" and then purports to conclude that the person who attended was unable to attend work from 26 October 2005 to 27 October 2005.  As I indicated earlier, the applicant has not attended this day.  The facsimile transmission in my view is hopelessly inadequate if it seeks, although it is not clear on the face of it, an adjournment of this application. 

5. Although the document itself does not seek to adjourn the matter and could not properly be regarded as an application for an adjournment, for present purposes I am prepared to treat it as at least an indication that an adjournment might be sought, and if that were the case I would in any event on that material refuse the adjournment.  I do so on the basis that the medical certificate itself does not provide any or any adequate material upon which this court could conclude that the applicant is suffering from any specific medical condition which prevents the applicant from attending court this day as scheduled.

6. The covering note from the applicant himself again does not provide any or any adequate material to reveal the nature and extent of any medical condition and simply asserts, “I am not well at all”.

7. No attempt is made to offer any details by way of affidavit material in support of any application for adjournment, and nor is any attempt made to provide any appropriate medical corroborative material.  In my view this is a somewhat cavalier approach to litigation in this court, which has occurred on other previous occasions in other matters.  I have dealt with similar issues in other cases, and by way of example refer to this Court's decision in the matter of MZWPG v Minister for Immigration (No. 2) [2005] FMCA 1373.

8. The remarks in relation to the adequacy of the material in that case are apposite to this case. For those reasons it is my view that the matter should be dealt with today in accordance with Federal Magistrates Court Rules 2001 (“the Rules”). The only question remaining is whether in the absence of the applicant the court should exercise its discretion to dismiss the application pursuant to rule 13.03A(c) of the Rules or whether it proceeds with the hearing generally under 13.03A(d).

9. From a court management and resource point of view it seems to me that any order made under rule 13.03A, whether proceeding with the hearing generally or simply dismissing the application in the absence of the applicant, would both potentially result in an application being made under rule 16.05 of the Rules.

10. Accordingly there is little advantage to be gained in the court delivering full reasons, albeit on an ex tempore basis, if it were to proceed generally with the hearing, despite the fact that in this case my preliminary view is that there does not even appear to be a prima facie basis upon which this court could undertake judicial review having regard to the amended application and contentions relied upon by the applicant.

11. Nevertheless, from a resource point of view it seems to me preferable to simply dismiss the application pursuant to rule 13.03A(c) of the rules, and for the reasons indicated I do not accept that there is any or any proper basis upon which the court should adjourn or delay the matter any further.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  27 October 2005