Rezaul Karim Khondoker v Minister for Immigration
[2012] FMCA 250
•20 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REZAUL KARIM KHONDOKER v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 250 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether hearing should be adjourned – whether applicant’s medical certificate satisfactory – failure of applicant to appear – dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Federal Magistrates Court Rules2001 (Cth), r.1303C(1)(c) |
| Applicant: | REZAUL KARIM KHONDOKER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2633 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2012 |
REPRESENTATION
No appearance by or on behalf of the applicant
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 17 November 2011, is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules (Cth) by reason of the failure of the applicant to attend today’s hearing.
The applicant pay the costs of the first respondent fixed in the amount of $5,000.
The first respondent is directed to notify the applicant forthwith of the Orders made today and to provide the applicant with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2633 of 2011
| REZAUL KARIM KHONDOKER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 17 November 2011, the applicant filed an application for judicial review of a decision of the Migration Review Tribunal dated 21 October 2011. The applicant then attended a directions hearing before me on 14 February 2012, at which, inter alia, I set the matter down for hearing today at 12 noon. It is now 1.25pm and the matter has been called outside and there is no appearance by or on behalf of the applicant.
I note that at the directions hearing on 14 February 2012, Mr Young of counsel appeared for the applicant. Subsequently, Mr Young informed the Court that he no longer continued to act for the applicant. There has been no other Notice of Appearance filed on behalf of the applicant as to any other legal representation.
The applicant seeks an adjournment of today’s hearing on the basis of a letter dated 18 March 2012 to the first respondent’s solicitor, and also sent to the Court, stating that he is presently in Bangladesh and is seriously ill.
The letter, set out here in full, states:
“Dear Madam,
Re: Rezaul Karim Khondoker v Minister for Immigration and Citizenship
SYG 2633/2011
I refer to the above named matter. I am the applicant in the proceedings. I am in Bangladesh and cannot come right now as I am seriously ill. I hope I will be at Sydney on or before 1 April 2012.
On the above basis I respectfully seek an adjournment on 20 March 2012.
Please find enclosed a medical certificate herewith for your consideration.
Should you have any queries regarding this matter please feel free to contact the undersigned.
Yours faithfully,
Rezaul Karim Khondoker”
The medical certificate attached to the letter is dated 17 March 2012 and states as follows:
“The applicant’s application is opposed by the first respondent - the application for an adjournment is opposed by the first respondent on the basis that the applicant has failed to provide a sufficient explanation as to why he should be entitled to an adjournment this morning.”
The medical certificate says no more than that the applicant was unfit to continue his usual occupation and did not give any explanation as to what, in fact, is the medical condition that would prevent the applicant from attending Court today. Nor does the medical certificate make any reference to today’s proceedings and why it is that the applicant’s medical condition would prevent him from travelling to attend today’s scheduled hearing.
Further, the applicant has not filed any document in accordance with the directions made on 14 February 2012, which included an amended application giving complete particulars of each ground of review relied upon, evidence by way of affidavit and submissions to be filed 14 days before the hearing.
The solicitor for the first respondent submits that in the circumstances the applicant has demonstrated a disinterest in participating in prosecuting his application. His decision to go overseas was unknown, and whilst the letter says that he hopes to be back on or before April 2012, the letter gives no explanation or reassurance that, in fact, there is a ticket booked and that he is presently to return to Sydney on a particular date. Nor does it provide any explanation for the reason why he has not been able to comply with the directions of the Court.
In the circumstances I am not satisfied that the reasons given by the applicant in seeking an adjournment of today’s hearing are satisfactory and, accordingly, the applicant’s application for an adjournment is refused.
In the circumstances, there being no appearance by the applicant at today’s scheduled hearing, the proceeding before this Court commenced by way of application filed on 17 November 2011 is dismissed with costs pursuant to r.1303C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) by reason of the applicant’s failure to appear at today’s scheduled hearing.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 28 March 2012
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