MZAPK v Minister for Immigration

[2017] FCCA 2668

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPK & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2668

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – first applicant providing medical certificate that he was unable to attend court – court granting leave to first applicant to appear by telephone – first applicant failing to answer telephone – no explanation for second applicant’s non-appearance – application dismissed for non-appearance.

Legislation:
Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

First Applicant: MZAPK

Second Applicant: MZAPL

Third Applicant:

MZAPM

BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT

Fourth Applicant:

MZAPN

BY HER LITIGATION GUARDIAN, THE FIRST APPLICANT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2589 of 2014

Judgment of: Judge Riley

Hearing date: 23 October 2017

Date of last submission: 23 October 2017

Delivered at: Melbourne

Delivered on: 23 October 2017

REPRESENTATION

Advocate for the first applicant: No appearance

Solicitors for the first applicant: None

Advocate for the second applicant: No appearance

Solicitors for the second applicant: None

Advocate for the third applicant: No appearance

Solicitors for the third applicant: None

Advocate for the fourth applicant: No appearance

Solicitors for the fourth applicant: None

Counsel for the first respondent: Emily Latif

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz Lawyers

ORDERS

1. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001, the application filed on 19 December 2014 be dismissed for non-appearance.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

NOTATION

Pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2589 of 2014

MZAPK

First Applicant

MZAPL

Second Applicant

MZAPM

Third Applicant, by his litigation guardian, the First Applicant

MZAPN

Fourth Applicant, by her litigation guardian, the First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. There is before the court an application to review a decision of the Refugee Review Tribunal. The application was filed on 19 December 2014.  The matter has been listed for final hearing on a number of occasions and has been adjourned. Usually, the adjournments were because of the first applicant’s ill-health but there was also an occasion when it was adjourned because the first applicant said there was inadequate interpretation. The matter was adjourned on 5 July 2017 until 24 October 2017. By notice dated 3 October 2017, the matter was re-listed by the court from 24 October 2017 at 2:15pm to today, 23 October 2017, at 10am. 

2. The applicant was well aware of the hearing date.  There has been a good deal of email communication between the applicants, the first respondent’s solicitors and the court.  Most recently, the first applicant has said that he was unable to attend court today.  He provided a medical certificate dated 18 October 2017 from a Dr Hossam Darwish which indicates that:

   a)the applicant has had severe diverticular bowel disease and has had multiple bowel surgeries for a perforated bowel;

   b)the first applicant had surgery on 9 March 2017 which was complicated by diabetes and a bowel infection;

   c)the first applicant had his final surgery on 13 July 2017 with his bowel being reconnected;

   d)the first applicant suffers from intractable diarrhoea and bloating and might need another three months for his bowel motions to normalise;

   e)the first applicant is in pain; and

   f)the doctor recommends that the first applicant does not attend court until his condition stabilises. 

3. In view of that medical certificate, the first respondent suggested that the hearing could proceed by way of telephone today with whatever breaks in the proceedings the first applicant required. 

4. The court sent an email to the parties on Friday 20 October 2017 at 12:11pm saying that the applicants had leave to appear by telephone today at 10am and emphasising that the court expected an appearance from the applicants.  The court asked the first applicant to provide a telephone number upon which the court could contact him. 

5. However, the first applicant did not provide such a telephone number.  He did reply by email on 20 October 2017 at 3:19pm saying that it was very unfair for the Minister’s solicitors to seek to have a hearing by telephone.  The first applicant also mentioned in that email the possibility of him obtaining lawyers but said that he was not able to do so due to his health situation. 

6. The court has attempted to telephone the applicants numerous times this morning on the mobile telephone number given on the application.  However, a recorded message says that there are incoming call restrictions.  I am not entirely sure why that would be but one possibility is that the telephone does not have any credit on it to receive calls. 

7. There was another mobile telephone number given by the first applicant to the court in February this year.  The court also tried that number numerous times.  The call went through to a message bank, which indicated that it was the message bank of the first applicant.  The court left a message in English on the second mobile telephone number saying that the court would call back in 10 minutes on that number and the applicants should accept the call.  The court also left the same message through the Urdu interpreter in Urdu.     However, notwithstanding those messages, further attempts to telephone the applicants were unsuccessful. 

8. There are actually four applicants in this proceeding.  The first applicant is the one who has the health problems.  The second applicant is his wife and the third and fourth applicants are their children. The first applicant is the litigation guardian of the third and fourth applicants.  It has not ever been suggested that the second applicant has any health problems.  At a previous hearing, she was available on the telephone with the first applicant.  There is no explanation for why the second applicant has not been available today.  While one may accept that the first applicant, in accordance with the medical certificate, is not able to attend court at present, the medical certificate does not indicate that he would be unable to take a telephone call. 

9. As the first respondent had indicated, there would have been no difficulty in taking breaks whenever the first applicant required them to enable the hearing to proceed by telephone, whether that was, in fact, an application for an adjournment or the final hearing in full. 

10. I note that the applicant has said that he may wish to obtain a lawyer.  However, again, the first applicant has had the benefit of the second applicant who could have undertaken whatever was required to obtain a lawyer if that was a realistic possibility.  It seems to me, at this point, that the applicants are not doing all that they reasonably could to further this matter but, on the contrary, are attempting to further delay it. 

11. As noted, the application was filed on 19 December 2014.  It has now been in the court system for almost three years.  A lot of that time can be explained by the first applicant’s health issues. However, there is insufficient evidence that the first applicant would not have been able to attend a hearing today by telephone, at least for the purposes of seeking an adjournment if that is what he wanted. 

12. In the circumstances, it seems to me that is appropriate for the matter to be dismissed for non-appearance with costs. There will be the usual notation under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 to the effect that the court may vary or set aside a judgment or order made in the absence of a party.  If the applicants are able to satisfy the court that they had a proper basis for not being in court today and not answering the telephone today, and that they have reasonable prospects of success in the substantive application, then it is likely that the matter will be reinstated.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:  31 October 2017