SZIND v Minister for Immigration

[2007] FMCA 2085

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIND v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2085

MIGRATION – Review of decision of the Refugee Review Tribunal – no appearance – application for adjournment refused – application dismissed pursuant to Rule 1303A(c) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant: SZIND

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 149 of 2007

Judgment of: Nicholls FM

Hearing date: 5 December 2007

Date of Last Submission: 5 December 2007

Delivered at: Sydney

Delivered on: 5 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 16 January 2007 is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

3. Within seven (7) days of the making of these orders the first respondent’s solicitors write to the applicant, by letter sent to the last known address for service, notifying the applicant of the orders made today and of Rule 16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 149 of 2007

SZIND

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application for an adjournment which seems to have come by an indirect route via the first respondent’s solicitors.  In addition to other evidence, I have the affidavit of Ms Laura Coombes of 4 December 2007, with annexures.  I am to consider whether I am satisfied that it is appropriate for an adjournment to be granted in the hearing of this matter.

2. The applicant clearly had notice of the matter being set down for final hearing today. He attended at directions on 16 May 2007 in person, and was assisted by an interpreter in the Mandarin language. The matter was set down for hearing today at 2.15pm.  Based on the evidence that has been put before me, he clearly knew of the hearing date otherwise he would not have sought to send the communication that is annexure “C” to the affidavit of Ms Coombes.

3. The Minister’s position has been put to the applicant and he should understand from that, that any request for an adjournment would be opposed. 

4. I turn to the explanation itself for the inability to attend, and I note two things:

   1)The applicant’s own claim is that he has sunstroke but there is nothing either in the applicant’s letter or in the medical certificate to show that that prevented him from otherwise arranging for representation at the Court today.  For example, his participation by telephone could have been sought. 

   2)The medical certificate talks about the applicant being “unfit for duty”.  On any interpretation, that does not say that the applicant is unfit for appearance at Court, or for participation in the hearing either electronically or otherwise.  “Unfit for duty” could mean unfit for work, unfit for jury duty, unfit for a variety of thing, but it does not in my mind address the issue of his capacity to attend the hearing today.  It makes no reference for example, to the applicant being unable to travel. 

5. I am not satisfied with the explanation put before the Court by the applicant by way of medical certificate for his non-appearance before this Court today.  Therefore, in not being able to be satisfied with that explanation and having nothing else before me, I am not going to agree to any adjournment.  The matter is to proceed today. 

6. I am satisfied that the applicant had notice of the matter today.  While there has been an attempt on the part of the applicant to explain his non-appearance, for the reasons that I have already set out in refusing an application for an adjournment, I find for similar reasons that it is appropriate that I proceed to dismiss the application for non-appearance pursuant to the Rules of this Court. 

7. I emphasise that I accept submissions put by Mr Reilly as to the inference that can be drawn from the evidence that has been put before me. I note again that I do draw that inference in reaching the view that I have. I therefore make an order dismissing the application pursuant to Rule 13.03A(c) of the Rules.

8. I am satisfied that it is appropriate for an order for costs to be made. Nothing that I can see would argue against the making of such an order. As to the amount, I note as to what is reasonable in the circumstances the work that has been done by the Minister’s legal representatives, including attendances at Court by solicitors on a number of occasions, multiple copies of the Court Book responding to the application, briefing of counsel, written submissions drafted by counsel, attendance at the hearing today by counsel. I therefore find that the amount of $5,000 is, in my view, a reasonable amount and I will make the order in those terms.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  11 December 2007