MZXOM v Minister for Immigration

[2007] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXOM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1015

MIGRATION – Non-attendance by applicant at court – application dismissed – sufficiency of medical certificate.

Applicant: MZXOM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 55 of 2007

Judgment of: Burchardt FM

Hearing date: 25 June 2007

Date of last submission: 25 June 2007

Delivered at: Melbourne

Delivered on: 25 June 2007

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Ms K.L. Walker

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to Rule 13.03A of the FederalMagistratesCourtRules2001, the application filed on 19 January 2007 be dismissed for non-attendance of the Applicant at Court this day.

2. The Applicant is to pay the First Respondent's costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 55 of 2007

MZXOM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 24 June 2007 the Applicant forwarded to the Registrar of the Federal Court of Australia a short note which relevantly said:

   I am sick and unable to attend the hearing on 25 June 2007.  I enclosed medical certificate for you attention. 

2. It is then signed by the applicant in his full name.  The enclosed certificate which appears to be from a Dr Rob Rawet, although anybody who thinks they could decipher the signature would be doing well, and that certificate merely says that the name of the Applicant is unable to attend for, and then it is underlined "employment" (there is also a heading "other" which has not been addressed), from 25 June 2007 and there is no return date.  In other words it is not from 25 June to 26 June, it is just for this one day.

3. The certificate however, curiously is dated 23 June 2007.  It was forwarded by facsimile transmission, recorded at 12.22pm, which one might infer was the time at which the document was forwarded to the Applicant, but it may have been the time at which it was forwarded to the Court, but I note that there is another facsimile transmission record dated today at 9.01 in the morning which I suspect was when the letter was forwarded to the Court. 

4. One would look with some hesitation at a history of that sort.  It would appear that on Saturday, the doctor, assuming that it was a doctor who saw the Applicant, was able to forecast with some precision an incapacity on the part of the Applicant to attend for Monday, but not for any other day, for work.  Whether that would be reasonably taken to be sufficient not to be able to attend Court might well be said to be open to some question.

5. Furthermore, the Applicant seems to have had a measure of prescience when he wrote on Sunday on 24 June 2007, he would be unable to attend today.  One might infer that it is a relatively precise and curious form of illness that can be foreshadowed with such certainty.  In these circumstances and bearing in mind the fact that no application for an adjournment has been made, rather the Court has been presented with a document purporting to present the Court with a fait accompli, I think that the request of counsel for the First Respondents, that the matter be dismissed for non-attendance is eminently sound and I will make an order dismissing the application on that footing.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate: Ann Pretty

Date:  25 June 2007