Monn v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 377

FEDERAL COURT OF AUSTRALIA

Monn v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 377

JENNIFER N MONN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 149 OF 2002

DOWSETT J
16 APRIL 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	16 APRIL 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed;

2.The applicant pay the respondent’s costs of the application, including reserved costs;

3.        The operation of the order be suspended for a period of seven days;  and 

4.That the applicant have liberty to apply to me to vacate this order, explaining her failure to appear, with appropriate supporting documentation or other evidence.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	16 APRIL 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The course of proceedings in the Migration Review Tribunal leading to the decision against which the present application for review is brought were marked by considerable difficulty in organising a hearing date.  These difficulties involved substantial delay at the request of the applicant.  I do not draw any conclusion as to whether the delay was justified or not.  I am willing to assume for present purposes that it was justified.  The history of the matter appears from the papers and it is not necessary that I rehearse it here.  This application was listed for hearing in February before Drummond J.  However, as I am informed, the applicant’s pro bono counsel withdrew about a week before the hearing, and the applicant sought an adjournment.  I am told that Drummond J, rather reluctantly, granted the application, given that she had lost her legal representation at a relatively late stage. His Honour made it clear that the matter would proceed on 4 April 2003, to which date he adjourned it.

2. Unfortunately, Drummond J resigned with effect from last Friday. He had hoped to dispose of this case before he went, but he was unable to do so.  His Honour asked that I assume responsibility for the matter.  Assuming that the parties would want a quick hearing, I found a suitable date and the parties were advised in the usual way through the registry.  It seems that the applicant claims to have advised the registry at some stage in early April that 16 April 2003 was not a suitable date for hearing.  However, the registry has no record of any such communication.  She also may have advised suitable dates, or at least that is her claim.  At some stage, probably late last week, she left a message indicating that she was unable to attend on 16 April.  The matter was referred to me.  I indicated that she would have to submit a medical certificate identifying the reasons for her being unable to attend and indicating when she would be able to attend.  There have been a number of other events in this history of correspondence and telephone conversations.  I have not set them all out.  It is sufficient to say that I understand that she was told about the need for a medical certificate.

3. This morning we received a fax message from the Gold Coast District Health Service as follows:

   Re JENNIFER MONN:

   Jennifer is presently in the SOPD of G.C.H.  She is unable to attend her scheduled appt with you to-day.  A Dr’s certificate will be forthcoming. 

   Dottie St. Clare, NPC.

4. The message obviously offers no justification for an adjournment.  It says nothing about why she is at the hospital.  It says nothing about what is wrong with her, if anything, and it says nothing about when she will be able to attend.  We have pursued the matter with the hospital but have been unable to contact Ms St. Clare or obtain any other information.

5. In the circumstances, I am inclined to proceed upon the basis that Ms Monn has simply not appeared today, notwithstanding the fact that she was given ample notice of the hearing date and was told what would be involved in her obtaining a further adjournment of this matter.  I accept, however, that it is possible that there may be some justification for her failure to appear.  In those circumstances I will extend to her the opportunity to satisfy me that such is the case.  I propose to make the following orders:

   1.        That the application be dismissed;

   2.That the applicant be ordered to pay the respondent’s costs of the application, including reserved costs;

   3.        The operation of the order be suspended for a period of seven days;  and

   4.That the applicant have liberty to apply to me to vacate this order, explaining her failure to appear, with appropriate supporting documentation or other evidence.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            29 April 2003

The Applicant did not Appear.
Counsel for the Respondent:	Mr M T Brady
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 April 2003
Date of Judgment:	16 April 2003