MZWIN v Minister for Immigration (No.1)
[2005] FMCA 514
•8 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIN v MINISTER FOR IMMIGRATION (No.1) | [2005] FMCA 514 |
| PRACTICE AND PROCEDURE – Migration application for adjournment – inadequate evidence in support of application – adjournment refused. |
| MZWJF v Minister for Immigration [2005] FMCA 517 |
| Applicant: | MZWIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 578 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms S.E. Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 578 of 2004
| MZWIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application MLG 578 of 2004 where MZWIN is the applicant and the Minister for Immigration and Multicultural and Indigenous Affairs is the respondent, the court received a copy letter purportedly written by the applicant effectively, in my view, seeking an adjournment of this application. The letter encloses with it other documents, including a copy of a medical practitioner's letter dated
30 March 2005 addressed "To whom it may concern" and a further typewritten document dated 15 March 2005. The letter itself refers to the name of the applicant and the court hearing date. The letter refers to the applicant's health being "not good" and encloses the medical reports.
I should add that the applicant who does not appear and who has provided the medical reports does at least have the advantage of her husband, who is the applicant in application MZWJF v Minister for Immigration [2005] FMCA 517 being present and he has confirmed that his wife does suffer from arthritis of both knees and has difficulty walking and has also further added by way of information that there is some surgery apparently planned in the near future. He further advised that he has travelled from Shepparton to court by train this day in order to attend the hearing.
I specifically asked whether there was anything else about his wife's condition which would prevent her from attending court and sitting in court and presenting her case and he was unable to provide any further details. The reason I asked that question is because the correspondence from the applicant in this matter does not attach to it medical reports which, in my view, could properly be regarded as any or any sufficient evidence of a medical condition which would prevent the applicant from attending court and/or presenting her case.
During the course of dealing further with the application other documentation was examined by the court, including radiological evidence and medical evidence that clearly would support the conclusion that surgery is contemplated for the applicant and to that extent I accept what was said on behalf of the applicant by her husband in relation to pending surgical intervention. Otherwise the reports do not, however, advance the case for an adjournment any further.
This matter has had a significant history and indeed it is noted that the applicant had in fact arrived in Australia on 15 June 1995. The decision which is sought to be reviewed is a decision of the Refugee Review Tribunal on 18 November 1996. The application to this court was made on 24 May 2004 and it was clear that certain orders were made as far back as 20 October 2004 and the matter, although originally listed on 23 March 2005, was subsequently refixed for hearing on this day.
The medical report relied upon in support of the application, rather than specifically referring to any condition which would prevent the applicant from attending and presenting her case simply states the following after referring to her name and date of birth, that she “has bilateral osteoarthritis. She finds hard to walk distances. She is advised to rest from 3/3/05 to 13/4/05”.
The typewritten report dated 15 March 2003 further refers to the applicant and after referring to her name and age claims that she has “advanced OA and effusion in both knees. She finds hard to walk distance. She is advised to take rest 15/3/05 to 29/3/05”.
Under the heading ‘Past History’, reference is made to hypertension on 3 January 2003, osteoarthritis 3 January 2003 and osteoarthritis 30 November 2004. I read that to be consultations that occurred with that medical practitioner who has prepared the report. Both reports are in fact prepared by the same medical practitioner.
By way of further update, the respondent has provided the court with an affidavit in relation to the issue of an adjournment sworn by Gavin Patrick Carroll on 7 April 2005. Annexed to that affidavit are the documents which had been forwarded to the court by the applicant, including her covering letter, the handwritten and typewritten medical reports from the medical practitioner. There also appears in that affidavit a copy of a letter which has been forwarded by the respondent's solicitors to the applicant dated 4 April 2005 which conveys to the applicant the advice that the respondent will oppose any adjournment of the hearing on the basis of the claims made and would seek to have the matter determined this day as currently listed.
It further suggests that if the applicant seeks an adjournment she should seek a representative to make the application on her behalf and notes that her spouse is also listed for hearing at the same time in the same court as this matter. That letter is an appropriate advice in the circumstances and that, combined with the fact of the chronology of events which I have described earlier and with what I conclude is the inadequacy of the material currently before me demonstrating any or any proper basis upon which an adjournment should be granted on medical grounds, leads me to the conclusion that the application by the applicant in this application for adjournment should be refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 April 2005
0
0