MZXNU v Minister for Immigration
[2007] FMCA 845
•23 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 845 |
| MIGRATION – Protection visa – application dismissed. PRACTICE AND PROCEDURE – Adjournment – non-appearance – inadequacy of medical report – application dismissed pursuant to r.13.03A. |
| Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | MZXNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1579 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 23 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2007 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms S.A. Burchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an adjournment by the Applicant be refused.
The Application as amended be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1579 of 2006
| MZXNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In the application before this Court the Applicant relies upon an Amended Application filed 13 February 2007 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated
16 November 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
It is not necessary, for reasons which will become apparent, for the Court to further consider the substance of the application, the claims and indeed the Tribunal decision, save to note that, having reviewed the material, I cannot, on the material before me without the advantage of argument for and behalf of the Applicant determine any jurisdictional error has been made by the Tribunal in this matter.
Nevertheless, the issue before the Court today arises out of the non‑appearance of the Applicant. However, the Applicant has, however, forwarded a facsimile transmission to the Court on 22 May 2007. The facsimile transmission dated 22 May 2007, purportedly signed by the Applicant and referring to these proceedings, relevantly states the following:
“Im sick and unable to attend the hearing on 23 May 2007. Im close medical certificate for your attention. I request to postpone my hearing for later date. I believe that u will accept my humble request.” (sic)
Annexed to the facsimile transmission is a copy of a document purporting to be a medical certificate from Brunswick Betta Health Medical Centre dated 22 May 2007. That certificate purports to certify that the Applicant:
“Is being treated for a MEDICAL CONDITION.
I conclude by reason of this condition/patient’s statement he/she is unable to attend work/school.”
The certificate appears to relate to the period from 22 May 2007 until 23 May 2007.
At the commencement of the hearing this day, Counsel for the First Respondent confirmed that the First Respondent had also received a copy of the facsimile transmission and certificate from the Applicant. The First Respondent, however, opposed the adjournment and sought an order that the application be dismissed pursuant to r.13.03A of the Federal Magistrate Court Rules 2001 (the Rules) on the basis of the Applicant's non-appearance. It was argued briefly that the documentary material to which I have referred does not provide an adequate explanation for the non‑appearance of the Applicant before the Court this day.
I should note by way of background that the application before the Court was initially filed on 14 December 2006. As indicated earlier, the Applicant then sought to rely upon an Amended Application filed 13 February 2007. It is significant to note that the Amended Application was filed pursuant to orders made by a Registrar of this Court on 7 February 2007.
It is also noteworthy that on the same day the Registrar made an order that an application for summary dismissal be listed before the Court on 23 May 2007 and it was further ordered that the First Respondent file and serve an application seeking summary dismissal by 7 March 2007. As it happened, the First Respondent chose not to file and serve an application for summary dismissal.
The matter was then subject to further orders made by this Court on
27 March 2007. On that occasion I made orders that the First Respondent file and serve a Court book, and the Applicant to then file and serve a supplementary Court book, if any, and, further, that the Applicant file and serve contentions of fact and law on or before 27 April 2007. The orders provided that the First Respondent file and serve contentions of fact and law on or before 18 May 2007. Significantly the orders then provided as follows:
“The matter be listed for final hearing on 23 May 2007 at 10.15 am before McInnis FM.”
It is clear from the orders that were made by the Court on 27 March 2007 that the hearing scheduled for this day is a final hearing. It is equally clear that an opportunity was given to the Applicant to file and serve contentions of fact and law in support of this application and to also file, if any, a Supplementary Court Book.
An examination of the Court file reveals that there have been no contentions of fact and law filed on behalf of the Applicant. Apart from the facsimile transmission to which I have referred to earlier in this judgment, there has been no further communication from the Applicant in relation to this matter.
When considering an application for an adjournment, the Court clearly has a discretion to determine whether it will or will not allow the adjournment. The discretion must be exercised judicially. In this instance the only evidence before the Court which provides any basis for the application for an adjournment is the facsimile transmission certificate to which I have referred earlier.
It is clear to me that on a proper reading of that material that there is a vague assertion by the Applicant that she is "sick and unable to attend the hearing". The medical certificate does not advance any further details and indeed, itself is expressed in terms which I regard as vague and unhelpful. The practitioner who has purportedly prepared the certificate has not taken the trouble to even delete the basis upon which the opinion expressed and that the Applicant is unable to attend "work/school from 22 May 2007 to 23 May 2007".
Hence, it is not known whether it is by reason of the condition or the patient's statement that she is unable to attend the Court this day. No reference in fact is made to inability to Court. No reference is made to the nature of the condition which would purportedly prevent the Applicant from attending the Court proceeding, even if only to make application for adjournment. No reference is made to whether the Applicant does or does not have a capacity to be heard by audio-link, if only to make an application for an adjournment.
In my view the material is hopelessly inadequate and does not provide any or any proper basis upon which this Court can be satisfied that it is in the interests of justice and the exercise of the Court's discretion to grant the adjournment.
The adjournment application is therefore refused.
It follows for those reasons, given the non-appearance of the Applicant, that it is appropriate in the circumstances that the Court makes an order dismissing the application as amended pursuant to r.13.03A (c) of the Rules and further order that the Applicant pay the First Respondent's costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 May 2007
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