SZJVR v Minister for Immigration and Citizenship

[2008] FCA 196

FEDERAL COURT OF AUSTRALIA

SZJVR v Minister for Immigration and Citizenship [2008] FCA 196

SZJVR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2241 OF 2007

MIDDLETON J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2241 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the costs of the first respondent, fixed at $2,400.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2241 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, after being called on, there was no appearance for the appellant.  I was informed by the Court staff, prior to this matter being called on, that the appellant did not intend to appear and that a medical certificate would be provided.  A medical certificate has been provided, dated 26 December 2008, which date is obviously an error, and should be 26 February 2008.  The medical certificate merely certifies that the appellant ‘will be unable to work’ and nothing further is provided as an explanation for the non-attendance at Court today. 

2. I do not accept that being unable to work necessarily means that an attendance could not be made by the appellant or through an agent in Court this morning.

3. In any event, the medical certificate has no force as a matter of evidence.  It is not part of an affidavit, its accuracy has not been deposed to by any medical practitioner, and is simply an unverified document which has been sent to the Court.  

4. It is quite apparent from the correspondence which has been tendered that the appellant knew of today’s hearing, although there could have been some confusion as to the place of the hearing, because the place indicated in the correspondence is not the place I am currently sitting to hear the matter.

5. However, where I have been informed by the Court staff that the appellant has contacted the Court to say he will not be appearing on the basis of the medical certificate, I am content to assume that the appellant has failed to attend the hearing relating to the appeal, knowing full well that the appeal is proceeding today. 

6. Therefore, I am satisfied the appellant knows of the appeal being on today and has deliberately failed to attend.  I am not satisfied that there is any proper basis or reasonable excuse, upon the evidence before me or upon any submission being made by the appellant, for non-attendance.

7. In those circumstances, I am prepared to exercise the power given under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), which empowers the Court to make an order that the appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. Therefore, the orders that I propose to make will be:

   (1)The appeal be dismissed; and

   (2)The appellant pay the costs of the first respondent, fixed at $2,400.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        29 February 2008

Counsel for the Appellant:	No appearance
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008