SZIDH v Minister for Immigration
[2006] FMCA 1691
•8 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIDH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1691 |
| MIGRATION – Non-appearance of Applicant – application dismissed – adequacy of medical certificate. |
| Federal Magistrates Court Rules 2001, rr.13.03A(3), 16.05 |
| Applicants: | SZIDH & SZIDI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG168 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2006 |
REPRESENTATION
| Applicants: | No appearance |
| Solicitor for the First Respondent: | Ms K Hooper |
| Solicitors for the First Respondent: | Phillips Fox |
ORDERS
The Applicants be granted leave to amend the description of the First Respondent by deleting the words “and Indigenous”.
The Application as amended be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to non-appearance of the Applicants.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $3,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 168 of 2006
| SZIDH & SZIDI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the application before the court was listed for hearing on this day and I am satisfied that proper notice of the hearing date has been given to the Applicants. So much is evident from correspondence on the court file dated 31 March 2006 notifying the Applicant of the hearing date on this date. The file further reveals that the applicant has sought to rely upon an amended application seeking judicial review of a decision of the Refugee Review Tribunal which had affirmed a decision of a delegate of the First Respondent refusing to grant a protection visa to the Applicants. The amended application was filed on 8 May 2006.
The first respondent has filed and served an outline of submissions on 27 October 2006. When the matter was called on for hearing this day the applicants did not appear. The first applicant however has purportedly forwarded by facsimile transmission to the court a three page document. The three page document comprises a copy of a letter dated 27 October 2006 from the first respondent’s solicitors to the applicant. That letter in part reminds the applicant of the hearing details of this matter on this day.
The second page of the facsimile transmission contains what purports to be a medical certificate from the Emerald Hospital signed by a person purporting to be a medical officer, though the signature on the document is one which cannot be easily read. The certificate is dated to 7 November 2006 and appears to refer to the applicant.
The certificate simply states that the person named in the certificate attended the Emerald hospital as an outpatient on 7 November 2006 suffering from “migraine/soft tissue injury”. The certificate goes on to state the patient is partially incapacitated for work and was discharged on 7 November 2006. The patient is not to attend the Outpatient Department and I anticipate will be unfit for duty up to 8 November 2006 and including 8 November 2006. The document further states that this certificate is issued for the information of “court”.
The fourth page in the document purports to be a copy of a radiology request form from the Central Queensland Medical Imaging Organization, Emerald Office. I assume Emerald, as that has been circled on the document. The document again appears to refer to the applicant and is a request for a CT examination. The area to be examined is referred to on the document as “CT-Brain”. The clinical history endorsed upon the document appears to state, “headaches, vomiting, vertigo since today morning. Had a fall today morning. Feeling dizzy since today morning.” Again, the document purports to be signed by a practitioner who for the sake of completeness I note has a printed name which appears to be A. A. Crathanon or something similar, and I note the signature on that document appears to be the same as the signature on the medical certificate.
There has been no other contact made by the applicant with my associate or any other person in the court. As far as the court is aware, this document was forwarded and presumably is a document whereby the applicant seeks to explain non-appearance this day. There is in fact no request for an adjournment, and it is to be observed that the documents, which have been forwarded by facsimile transmission, do not indicate that the applicant is unfit to attend court either in person or by audio link or other means. There is no request for an adjournment.
It is difficult for the court in the circumstances to make any, or any reasonable, assessment of the genuineness of the material. It would be reasonably expected in a circumstance of this kind for the court at the very least to have received some telephone communication from either the applicant or persons acting for or on behalf of the applicant as an agent. It would also be reasonably expected in the circumstances, in the alternative, that the applicant would forward, whether by facsimile transmission or other means, some written communication requesting an adjournment and/or indicating whether or not the medical condition claimed actually prevents the applicant from attending court.
Unfortunately, the court is left in the position of endeavouring to make some assessment of the documents, and an assumption that the applicant is perhaps not able to attend court. In my view, the material is inadequate and I am not prepared to rely upon it as the basis upon which I can conclude that the applicant did not have the capacity to attend court this day. The mere fact that a medical certificate refers to an applicant as being unfit for duty up to and including this day, and that the information is provided for the court, does not necessarily imply that the applicant is unfit to merely attend court to seek an adjournment or otherwise explain the condition. It would appear that the applicant was discharged from the outpatient clinic on 7 November 2006, that is, yesterday.
Whilst it appears that the applicant had some incident described as a fall yesterday morning, and as a result had been feeling “dizzy” and otherwise suffering from vertigo with apparent headache and vomiting on 7 November 2006 does not of itself provide any or any proper basis upon which the court is able to conclude that on this day, noting the applicant was discharged from outpatients yesterday, that the applicant is unable to attend court to at the very least explain the current circumstances and condition, and/or at least forward some correspondence providing the reasons why the applicant is unable to attend court this day.
This matter has been listed for a considerable time. The only further material from the applicant appears to be the amended application filed on 8 May 2006. I should otherwise indicate, without finally deciding the matter, that I have read the Tribunal decision which is the subject of the application for review. I have also read and noted the first respondent’s outline of submissions. This is a case where the applicant had failed to attend the Tribunal hearing, had failed to respond to other requests for information, and has then sought judicial review of the decision of the Tribunal.
On the material currently before me it would appear that the application has little or no merit. In any event, without finally concluding the matter and without necessarily taking that conclusion into account, I am satisfied on the material before me that it is not appropriate to further adjourn the matter, and in the circumstances I am not satisfied that there is any or any adequate explanation for the non-appearance of the applicant this day. Accordingly, in my view, it is appropriate for the reasons stated that the application as amended be dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 and that the applicant should pay the first respondent’s costs to be fixed in the sum of $3,100.00.
The formal orders of the court will be:
(1)The Applicant be granted leave to amend the description of the First Respondent by deleting the words “and Indigenous”;
(2)The application as amended be dismissed pursuant to rule 1303A(c) of the Federal Magistrates Court Rules 2001 due to non-appearance of the applicant;
(3)The Applicants shall pay the First Respondent’s costs fixed in the sum of $3,100.00.
I shall further direct that a sealed copy of this order, together with an explanation of the applicant’s rights pursuant to rule 1605 of the Federal Magistrates Court Rules, be forwarded by the First Respondent’s solicitors to the Applicants by prepaid post within seven days of the date of this order.
I will direct that the reasons for decision that I have just given be transcribed and upon review shall constitute the reasons for my judgment in this matter, and likewise I will direct that a copy of the reasons be forwarded to the Applicants by the court within 14 days of this day.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 November 2006
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