SZKCE v Minister for Immigration
[2007] FMCA 1764
•12 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1764 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – applicant did not attend hearing – application dismissed. |
| Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | SZKCE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 251 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 October 2007 |
| Date of Last Submission: | 12 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2007 |
REPRESENTATION
| No appearance by the applicant. |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Pursuant to r.13.03A(c), the application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 251 of 2007
| SZKCE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant claims to be a national of the People's Republic of China, to have been a Falun Gong practitioner and to fear persecution in China by reason of her adherence to Falun Gong. The proceedings in this Court were commenced by an application filed on 29 January 2007. The applicant seeks judicial review of the decision of the Refugee Review Tribunal (“Tribunal”) which the applicant says is dated
7 December 2006.
Following the filing of that application the matter was given a first court date in this Court. That first court date was 19 February 2007. The applicant attended on that occasion and signed a consent short minute of orders which had the effect, amongst other things, of listing the matter for hearing at 10.15 am on 27 April 2007. On 26 April 2007 the Court was advised that the applicant was unwell and as a consequence the hearing listed for the next day was vacated. The applicant submitted a medical certificate in support of her request for an adjournment which said that the applicant was suffering from dysmenorrhoea. The matter was subsequently listed for mention on 21 May 2007.
On 21 May 2007 the matter was stood over for a further week for directions on 28 May 2007. On 28 May 2007 the matter was listed for hearing at 2.15 pm on 7 August 2007. On 6 July 2007 a person describing him or herself as the applicant's friend telephoned the Court to advise that the applicant's operation, of which mention must have been made at earlier court appearances, was scheduled for 8 February 2008 and if the applicant's fragile medical condition prevented her from attending court on 7 August 2007 the Court would be advised.
On 7 August 2007 the Court did receive such advice when the applicant's friend telephoned the court to say that she was bedridden and would not be attending court that day. A medical certificate was submitted by her which said that she had supra-pubic pain. Upon inquiries by my associate this was identified to refer to cystitis and an infected bladder, the need for an IUD to be removed and the fact that the applicant had been given antibiotics.
Consequently on 7 August 2007 the matter was stood over to 13 August 2007 for directions. The applicant appeared at that directions hearing and handed up a document headed “Recommendation for Admission”. From that document it appears that on 25 June 2007 a Dr Huang had recommended that on 8 February 2008 the applicant undergo the removal of an IUD and related procedures.
My notes of that directions hearing record that the applicant expressed concern that she would be unwell on the hearing date as she said that she often felt unwell. Directions were made on 13 August 2007 which included the following:
3. The applicant bring with her to the directions hearing on 3 September 2007 a medical certificate advising the Court whether the applicant will be medically fit to participate in the hearing listed for 12 October 2007, together with the doctor's opinion on any other matter he considers relevant to that issue.
4. The first respondent, by his solicitors, to write to the applicant setting out for the purposes of the doctor's information the ordinary course which matters such as these take, together with identification of any individual issues relevant to this matter which might affect the course of the hearing. That letter is also to identify for the doctor's information the hearing date which has been allocated. The letter from the first respondent's solicitor is to be sent to the applicant within three working days.
Because the applicant had indicated she was concerned about her ongoing health, the matter had been listed for directions on 3 September 2007 in order that she could put material before the Court shedding light on any difficulties she might have attending the hearing today.
When the matter was mentioned on 3 September 2007 the applicant handed to the Court a letter from Dr Huang dated 22 August 2007 explaining the nature of the procedure proposed for 8 February 2007. The letter did not say that the applicant was going to be unfit to attend court today and consequently today's hearing date was confirmed.
At about 3 pm yesterday a person describing him or herself as the applicant's friend rang the court advising that the applicant was not well enough to attend court and that this friend would be faxing through a medical certificate.
The medical certificate which was subsequently received says that the applicant is suffering from influenza and is “unable to work” from 11 October 2007 to 13 October 2007 inclusive. The applicant is not in court today. The matter was called outside the court and the applicant has made no appearance. It is significant that the medical certificate received by the Court yesterday does not say that the applicant is unfit to attend court. Indeed, no medical certificate submitted by the applicant in support of her various applications for adjournments has said that she was actually unfit to attend court.
Significantly, the letter that the applicant brought to the directions hearing on 3 September 2007 did not say that she could not attend court today. I infer that the applicant's principal medical condition, for which she is to undergo a procedure next year, does not prevent her from attending court today and that it is the influenza referred to in the medical certificate received yesterday which is the cause of her absence – or at least the purported cause of her absence.
The applicant was aware by the directions made on 13 August 2007 of the sort of evidence which would be required in order to obtain a vacation of today's hearing date on the basis that she is too ill to attend. The medical certificate sent to the court yesterday not only does not meet the criteria set out in those directions of 13 August 2007 but does not actually say that the applicant cannot attend court.
The proceedings today are part of the applicant's prosecution of her claim to be a refugee and to be entitled to a protection visa. If she is unsuccessful she is liable to be deported to China where I deduce she claims to have a well-founded fear of persecution for reasons set out in the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967.
I do not infer that the doctor who signed the certificate received by the court yesterday was certifying that the applicant was too unwell to attend court, for proceedings of such vital importance to her, assuming that she has a genuine subjective fear of prosecution. There was nothing in the document from the doctor to suggest that it had been sought from him or her in order to be used to substantiate an allegation of ill-health such that the applicant could not attend court proceedings.
The applicant has sought an adjournment of the matter today on the basis that she is too ill to attend. I find that this allegation is not proven. I find that there is no adequate explanation for the applicant's non‑attendance today. The Minister has sought an order that the proceedings be dismissed pursuant to r.13.03A(c) by reason of the applicant's non-attendance. The Minister will have that order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 October 2007
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