SZAYH v Minister for Immigration

[2007] FMCA 1404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1404

PRACTICE & PROCEDURE – MIGRATION – Adjournment – application refused.

Applicant: SZAYH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1827 of 2007

Judgment of: Cameron FM

Hearing date: 16 August 2007

Date of Last Submission: 16 August 2007

Delivered at: Sydney

Delivered on: 16 August 2007

REPRESENTATION

No appearance by the applicant.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an adjournment be refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1827 of 2007

SZAYH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. When this matter was called on shortly after 10.15am there was no appearance by the applicant. 

2. Shortly before the Court was to sit a fax was received in my chambers from the applicant. It is a three-page fax, two pages of which are the same letter requesting an adjournment on the basis of chest pain and something else which I cannot decipher, or at least comprehend from the applicant's letter, and accompanying that letter is a medical certificate from a Dr Krishna, it would seem, which is undated. It appears that this facsimile was received by the Court system yesterday evening at 8.35.

3. When this matter was before the Court previously on 6 August 2007 I made orders in respect of the possibility of a further adjournment which included the following order:

   If the applicant wishes to seek a further adjournment of the matter for health reasons he is to file in Court by 10.15am on 16 August 2007 a medical certificate which:

   (a)     states that he is unable to attend Court; and

   (b)     specifies the medical condition which is the basis for any                such application for adjournment.

4. A sealed copy of that order was sent to the applicant by my Deputy Associate under cover of a letter dated 7 August 2007. Ms Warner-Knight, on behalf of the Minister, has today read the affidavit of Angela Margaret Nanson affirmed on 14 August 2007 to which is annexed a letter from the Australian Government Solicitor to the applicant dated 7 August 2007 which sets out the order which I have just quoted.

5. In the circumstances I am satisfied, particularly given that the applicant has actually sent a medical certificate and sought an adjournment, that he has been made aware of the orders made on the last occasion.

6. However, it also has to be observed that the medical certificate which he has sent does not comply with the orders made on the last occasion. Ms Warner-Knight has expressed a concern, and a reasonable one in my view, that the doctor who provided the certificate was not aware that the certificate was to be provided for the purposes of an adjournment of Court proceedings.

7. In that medical certificate the doctor's printed form says that the applicant attended him yesterday, and the form continues:

   and is in my opinion suffering from / who stated to me that he / she was suffering from:

   and then the doctor proceeds in handwriting:

   recurrent chest pain; unstable diabetes mellitus requires investigation

   and then the printed form continues:

   and will be unfit for duty from

   and then the dates 15 August 2007 to 4 September 2007 are given.

8. It is important to note the qualification, or the note, which appears against the number 1 at the bottom of the form which says:

   Medical certificates issued cannot be used for any purpose other than the stated purpose on this original (eg absence from examinations, court attendances, medico-legal purposes).

9. Given the express terms of the order made on 6 August 2007 and the fact that the medical certificate provided by the applicant expresses him to be unfit for “duty” rather than unfit to attend Court and given that the doctor's form expressly excludes its use as the basis of an application for an adjournment on health reasons unless it is said to relate to that, I am not satisfied that the applicant has properly demonstrated that he is unfit to attend Court.

10. Consequently, his application for an adjournment as contained in the letter found within the facsimile already referred to is refused.

RECORDED   :   NOT TRANSCRIBED

1. The application for the adjournment is refused. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  15 October 2007