MZWSC v Minister for Immigration - [2005] FMCA 1277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWSC v MINISTER FOR IMMIGRATION

[2005] FMCA 1277

MIGRATION – Application to set aside order when no appearance – reasonable excuse for non-attendance – inadequacy of medical evidence.

Federal Magistrate Court Rules 2001, r.16.05

Applicant:

MZWSC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1348 of 2004

Judgment of:

O'Dwyer FM

Hearing date:

15 July 2005

Delivered at:

Melbourne

Delivered on:

15 July 2005

REPRESENTATION

Applicant:

In person (assisted by interpreter,
Mr Sarath)

Counsel for the Respondent:

Mr T. Mosby

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application filed on 11 July 2005 is dismissed.
The Applicant pay the costs of the Respondent fixed in the sum of $600.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1348 of 2004

MZWSC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter comes before me on an application filed on 11 July 2005. In that application the Applicant seeks to set aside orders I made on

16 June 2005. On that day I dismissed the Applicant's application for review because of her non-attendance.
Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 allows for the Court to set aside any judgment made in the absence of a party. In the exercise of that power the Court has a discretion as to whether or not to set aside an order made in the absence of a party.
To determine whether the discretion should be exercised in the favour of an Applicant the Court must have regard to a number of matters.

The first matter is whether or not there was a reasonable excuse for the non–attendance of the party. The second matter is whether or not the application to set aside has been made within a reasonable time of the Applicant becoming aware of the order. The third matter is whether or not if the application is successful the case that the Applicant has is one with merit.
In respect of making the application in a timely manner, I am satisfied that has been done. The two issues for me are whether or not there is a reasonable excuse for non–attendance and whether there is apparent merit in the Applicant's position as far as her substantive application is concerned.
In respect of the issue of reasonable excuse I have heard that the Applicant suffers from a medical condition of her left knee which also, to an apparent lesser degree, affects her right knee.
I have afforded the Applicant considerable liberties in addressing me on these issues from the bar table and I have afforded her ample opportunity to tell me of her circumstances in relation to her illness. She does not present today with any medical evidence as to the nature of her problems with her left knee. I do have on the Court file a copy of a medical certificate faxed to the Court in respect of an earlier hearing on 19 May 2005. That medical certificate is from Dr. Malcolm Wong and it merely states that she is, “Unfit for work, school or usual activities for one day only.” It is very deficient in detail and quite inadequate as a medical certificate.
Nevertheless, on 19 May 2005 I extended the benefit of doubt to the Applicant and adjourned the further hearing to 16 June 2005. However, because of my concerns about the quality of the medical certificate, on 19 May 2005 I made the following orders and relevantly I ordered as follows:
“Should the Applicant intend to resist an application for costs by the Respondent then she must file, by the return date - that being 16 June 2005 – a more detailed medical report setting out the reason why she was unfit to attend Court today, the nature of the treatment prescribed and the prognosis.”
Significantly the order went on to say:
“Should the Applicant seek a further adjournment on medical grounds she must file and serve a detailed medical report setting out the matters referred to in order 2.”
The Applicant acknowledges receipt and understanding of that order that was made.
It was evident, in my view, that should the Applicant intend to rely on a medical condition in future proceedings that she provide proper, detailed medical reports in support of her contention, yet she comes to Court today without any medical certificates.
She has told me that in respect of 16 June 2005 hearing she sent by fax a medical certificate to the Court. The Court file does not disclose any such medical certificate as having been received. In any event, because it is said that these certificates were faxed through, the originals should still be in the possession of the Applicant. She has not brought them to Court today.
In respect of the nature of the illness or condition described by the Applicant, the Applicant says that she does not have a medical diagnosis because such would depend on her obtaining x–rays of her knee. She says that she is impecunious and unable to afford the cost of x–rays which she has been told would be an extra $200 to $300 above any Medicare benefit she might receive. She has not explored the possibilities of getting these x-rays from a public hospital.
Her condition is said to be ongoing and that it prevented her attendance at Court on two occasions. The condition, however, has not prevented her attendance at Court today. Her explanation for today's attendance is that the knee is not as bad as on the two previous occasions and she has had the benefit of pain–killers today.
In my view the explanation give by the Applicant for her

non–attendance on both 19 May 2005 and 16 June 2005 is grossly inadequate and I do not accept her inability to attend those days.
So in the exercise of my discretion I am not persuaded to exercise it in favour of the Applicant to set aside my previous orders.
Be that as it may, in respect of whether or not there is merit in the substantive application on the part of the Applicant's position, I have the following to say: the Applicant intends to rely in any further hearing of the substantive application upon her Contentions of Fact and Law filed at the Court. When invited to comment about the Tribunal's decision and what she would do at her review hearing, she indicated that she would challenge the Tribunal's decision and would like to present the factual situation to the Court on review with the implicit expectation that this Court would come to a different conclusion to that of the Tribunal.
The decision of the Tribunal is a privative clause decision which means that it is not reviewable by this Court unless it is shown to have been affected by jurisdictional error. It is quite evident from the material filed by the Applicant and her comments today that she seeks a merits review of the Tribunal's decision which is impermissible as far as this Court is concerned.
The Respondent has filed contentions of fact and law. I have read the decision of the Tribunal critically and I have read the contentions of fact and law filed by the Respondent and, in my view, the Respondent's contentions of fact and law reflect the law as applying to this case and the contentions of the Respondent are correct and I adopt them in my reasons today.
So in the exercise of my discretion as to whether this matter should proceed to a substantive hearing, I am not persuaded to exercise it in favour of the Applicant because I do not believe her case has merit.
In conclusion, therefore, I am of the view that there is not a reasonable explanation by the Applicant for her non-attendance and on the basis of the material before me there is no prospect of success on the part of the Applicant should it proceed to a substantive hearing.
Accordingly, I intend to dismiss the application filed on 11 July 2005.
In the circumstances, I am obligated to make an order for costs and I intend to do so.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 15 July 2005