SZJOL v Minister for Immigration

[2007] FMCA 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1023

MIGRATION – Refugee Review Tribunal – Practice and Procedure – Applicant failed to appear at hearing – dismissed pursuant to r.1303A(c).

Federal Magistrates Court Rules2001 r.13.03A(c); 13.04A(c); 44.12; 16.05

First Applicant: SZJOL

Second Applicant: SZJOM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3100 of 2006

Judgment of: Emmett FM

Hearing date: 26 June 2007

Date of last submission: 26 June 2007

Delivered at: Sydney

Delivered on: 26 June 2007

REPRESENTATION

No appearance on behalf of the Applicant

Solicitors for the Respondent: Ms L. Gazi, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3100 of 2006

SZJOL

First Applicant

SZJOM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down for final hearing today by order of this Court made on 12 December 2006.  On that occasion the applicant was represented by Mr E. Young of counsel.  The Court record does not disclose whether or not either or both of the applicants were present, although it does disclose that an interpreter in Gujarati was present.  There was no notice of appearance filed in respect of legal representation of the applicants, although as I have stated above, Mr Young appeared on that occasion before the Court. 

2. The matter had been before the Court for directions on a first return date on 6 December 2006 at which time the matter was set down for a hearing pursuant to r.44.12 of the Federal Magistrates Court Rules2001 on 12 December 2006. 

3. At that hearing on 12 December 2006 a copy of the draft amended application was provided to the Court.  The applicant had only recently obtained legal advice resulting in the filing of the amended application on 11 December 2006, together with submissions in support.  The matter was stood over for final hearing today. 

4. However, there has been no notice of appearance filed in respect of any legal representative for the applicant, and no other document has been filed by or on behalf of the applicant since that date.  There has been no communication to this Court from the applicant, however the legal representative of the first respondent, Ms Gazi, has this morning provided a copy of a facsimile received at the offices of the legal representative for the first respondent at 6.19pm last night.  The handwritten note is in the following terms:

   “To AGS Sydney. 

   Subject – Not appearance at hearing

   Reference – SZJOL and Anor MIMIA

   Fax – [phone]

   Dear Sir,

   Herewith I would like to inform you that due to my sickness I am not able to attend my hearing but I am accepting your decision positively in my favour.  Please consider my medical certificate in support of my letter.

   Thanks.

   Yours truly”

   And it is signed by the person with the pseudonym SZJOL.  Attached to the letter is a medical certificate signed by a doctor dated 25 June 2007, with no handwritten additions.  The certificate is a form certificate which says the following:

   This is to certify that [applicant SZJOL] was seen at the Griffith Hospital on 25/6/7 for a medical condition. 

   (a)  He/She is unfit for work from 25/6/7 to 28/6/7 inclusive. 

5. There has been no application made to this Court in any formal sense by the applicant for an adjournment of today's hearing.  However, giving the applicant the benefit of the doubt, and having regard to the fact that he is unrepresented, I am prepared to consider the letter provided to this Court by Ms Gazi as an application for an adjournment.  However, there is no identity of the medical condition that the applicant is said to be suffering.  Nor is there any statement from the doctor that the applicant, SZJOL, is unfit to attend Court today.  There is nothing from the applicant to explain why the certificate was not sent to the first respondent's lawyers until 6.19pm last night, or to explain why there was no communication at all with this Court. 

6. In the circumstances, I am not prepared to accept the medical certificate provided as excusing the applicant from attendance at the hearing today.  Accordingly, to the extent that there is an application by the applicant for an adjournment, it is opposed by the first respondent and, for the reasons referred to in paragraph five of these Reasons, is refused. 

7. The first respondent seeks an order pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001 that the proceeding before this Court, commenced by way of application filed on 24 October 2006 seeking judicial review of a decision of the Refugee Review Tribunal handed down 26 September 2006, be dismissed by reason of the applicant's non-appearance at the hearing today. 

8. It is clear from matters referred to and the Reasons above that the Court is satisfied that the applicant is aware of today's hearing.  However, there has been no agreement to an adjournment of the hearing and the applicant's application for an adjournment has been refused in those circumstances.  The applicant is absent from the hearing without being excused. Accordingly, I am satisfied that the order sought by the first respondent is appropriate.

9. I order that the proceeding before this Court, commenced by way of application filed on 24 October 2006, is dismissed. 

   ORDERS DELIVERED

10. I direct the first respondent to provide to the applicant at the address identified by the applicant on the amended application, in Griffith, New South Wales 2218, a copy of these orders, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001. 

    ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date: 2 July 2007