MZYBD v Minister for Immigration & Citizenship

[2009] FCA 425

FEDERAL COURT OF AUSTRALIA

MZYBD v Minister for Immigration & Citizenship [2009] FCA 425

Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)

MZYBD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 906 of 2008

GRAY J
6 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 906 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	6 MARCH 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed for failure of the appellant to attend the hearing.

2.        The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 906 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	6 MARCH 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This appeal has been called on today.  The appellant has not answered the call for his appearance, and it is clear that he is not here to present his appeal.

2. The appeal was adjourned from Wednesday, 4 March 2009, until today.  On 4 March, there were two cases listed before me.  One was this appeal; the other was an application by this appellant’s mother for leave to appeal out of time.  On the afternoon of Tuesday, 3 March 2009, documents were sent by facsimile to the Registrar of the Court.  Those documents included two medical certificates; one for this appellant and one for his mother.  They also included a note, purporting to be signed by this appellant, and a copy of a prescription in the name of this appellant.  As is typical of medical certificates these days, the medical certificate is uninformative.  According to its terms, the doctor certifies that on 3 March 2009 he or she examined the appellant:

   who in my opinion, / who states that they were,   suffering from a personal illness on history

   or

   and will be / and was unfit for, work / school

   From 3/3/2009 to 4/3/2009 inclusive

   It is apparent from the text of this document that there are alternatives in it and the intention is that whoever issues the certificate should strike out whatever is inappropriate.  There has been no striking out.  In the accompanying letter, addressed to the Registrar of this Court, and apparently signed by the appellant, the appellant says:

   I am sick – these days so unable to attend the direction-of [sic] hearing on 04 march [sic] 2009 at 10.15 am.
   I enclose the medical certificate – for your attention.

   The prescription is for Lomotil tablets.

3. On the afternoon of 3 March, after these documents came to my attention, I instructed my associate to contact the appellant, if he could, to indicate that, if at all possible, the appellant should attend at the appointed time on Wednesday morning.  My associate spoke to someone who identified himself as the appellant’s brother and who indicated that the appellant was suffering from diarrhoea.  That is consistent with the appellant having been prescribed Lomotil tablets by a doctor.  On the morning of 4 March, the appellant’s mother appeared, accompanied by a man who identified himself as the appellant’s brother.  After initially applying for an adjournment of her appeal, the appellant’s mother withdrew her application and I dealt with the application for an extension of time for the filing of the notice of appeal, which I granted, and with the appeal, which I dismissed. 

4. When I questioned the man who identified himself as this appellant’s brother about the state of health of this appellant, he indicated to me that this appellant ought to be well enough to attend by today.  Accordingly, I adjourned the hearing of the appeal until today.

5. Counsel for the first respondent has put to me that I have three alternatives: I could adjourn the appeal; I could dismiss it for non-appearance pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth); or I could proceed to hear the appeal on the merits and deal with it in the absence of the appellant.

6. Although I was not altogether satisfied that the appellant could not have attended at all on Wednesday, even if only to press his own application for an adjournment, I have to take account of the possibility that the appellant was genuinely ill on Wednesday and may still be suffering from some illness or other circumstance that prevents his attendance today.  Accordingly, it seems to me that the appropriate order to make is an order dismissing the appeal because of the failure of the appellant to attend the hearing.  If there is some genuine reason why the appellant is unable to be here, such an order would provide him with an opportunity to have the judgment set aside, as it will be an interlocutory judgment, and to persuade the Court that he should be given the opportunity to have his appeal heard.

7. The order I make is as follows:

   1.        The appeal be dismissed for failure of the appellant to attend the hearing.

   2.        The appellant pay the first respondent’s costs of the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:        29 April 2009

The appellant did not appear and was not represented
Counsel for the respondents:	Mr C Truong
Solicitor for the respondents:	DLA Phillips Fox

Date of Hearing:	6 March 2009
Date of Judgment:	6 March 2009