NAKX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1559

FEDERAL COURT OF AUSTRALIA

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1559

NAKX & NAKY v MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

N 1694 of 2003

LINDGREN J
17 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1694 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAKX AND NAKY APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	17 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1694 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAKX AND NAKY APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 10 October 2003.  The proceeding before the FMCA was an application for review of a decision of the Refugee Review Tribunal (‘RRT’) made on 7 February 2003 and handed down on 27 February 2003.  By that decision, the RRT affirmed a decision of a delegate of the respondent (‘the Delegate’ and ‘the Minister’ respectively) not to grant protection visas to the appellants.  They are a de facto husband and wife from Moldova. 

2. The Acting Chief Justice has directed that the appeal be heard and determined by a single judge: see Federal Court of Australia Act 1976 (Cth) subs 25(1A).

3. The appellants notified the Registry two days ago, on 15 December 2003, that they wished to apply for an adjournment of the hearing today.  A friend of theirs, Ms Irina Radionova, attended at the Registry and produced two medical certificates both dated Saturday 13 December 2003 and issued by Aristoff Medical Practice Pty Limited; one certificate in respect of each appellant.  The solicitor for the Minister indicated that the Minister would oppose an adjournment.  It was explained to Ms Radionova that, in these circumstances, an adjournment could not be granted unless the Minister had the opportunity to be heard on the application.

4. Upon the matter being called on this afternoon, Ms Anna Volonski, a friend of the female appellant, was in attendance.  She is not a lawyer and has attended Court, in substance, to observe and hear what happened on the application. 

5. The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

   ‘This is to certify that on 13/12/2003 I examined the above person.  In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’

   The certificate of the same date in respect of the female appellant states:

   ‘This is to certify that on 13/12/2003 I examined the above named person.  In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’

6. The medical certificates are quite unsatisfactory.  They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing. 

7. I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner. 

8. If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

9. I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing.  The certificates have the appearance of being pro forma certificates which are available for the asking.

10. In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

11. I refuse the application for an adjournment.

12. Since neither appellant is present, Order 52, rule 38A permits the Court to dismiss the appeal and that is what I propose to do. 

13. I have explained to Ms Volonski that a dismissal in the absence of a party can be set aside upon application:  see O 35 r (2)(a) of the Federal Court Rules.  I say nothing as to whether an application to set aside would be likely to succeed, but have explained that one would expect more evidence to persuade a Court to set aside the order of dismissal than the evidence which has been presented to me this afternoon.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  23 December 2003

The appellants did not appear
Counsel for the respondent:	Mr T Reilly
Solicitor for the respondent:	Blake Dawson Waldron
Date of Hearing:	17 December 2003
Date of Judgment:	17 December 2003