SZKFD v Minister for Immigration
[2008] FMCA 327
•14 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 327 |
| MIGRATION – Application for Review of Refugee Tribunal decision – request by applicant for adjournment – unsatisfactory explanation for seeking adjournment – no appearance – application dismissed. |
| Federal Magistrates Court Rules 2001, rule.16.05, 13.03A(c) |
| Applicant: | SZKFD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 495 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 March 2008 |
| Date of Last Submission: | 14 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 14 February 2007 is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The applicant pay the first respondent’s costs set in the amount of $4,300.
Within seven (7) days of the making of these orders, the solicitors for the first respondent write to the applicant at the address for service notifying the applicant of the orders made today and of rule 16.05.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 495 of 2007
| SZKFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
(Ex tempore; Revised from Transcript)
I agree with Mr Mitchell’s submissions that the applicant’s request for an adjournment should be refused. I note, in particular, the timing, the lateness and the circumstances surrounding the notice seeking the adjournment. I note that the matter was last before a Registrar of this Court in June 2007. The applicant was subsequently on notice in October that the final hearing was to be at 2.15 pm on 10 March 2008 at John Maddison Tower. The applicant claims via the medical certificate that has been put before the Court and, in particular, the annexures to the medical certificate, that she was alleged to have been the subject of a robbery in January 2008.
I note that the attendance at the doctor’s surgery was not until 8 March 2008. The question must arise as to the coincidence arising from the time of the hearing and the length of time since the alleged event that gave rise to the applicant’s claim to medical condition. I note also that the certificate which is put forward by the applicant in support of her request for an adjournment states the following:
“This is to certify that I examined [the applicant] on 8.3.2008. In my opinion he/she is suffering from headache since after alleged robbery on road in January this year. CT brain scan to be arranged. He/she was/will be unfit for work from 8.3.2008 up to and including 10.3.2008.”
There is nothing in that certificate nor in the clinical notes which are attached, and I will read those on to the record:
“Alleged robbery in road on January this year. Her handbag was snatched by 3 persons in a car. In order to get her handbag back, she was caught in a fight and her head hit in the side of the car and her [indecipherable symbol] … lower chest contused at side of car. Headache and [indecipherable symbol] lower chest pain since. Clinically no abnormality. She wishes to have CT brain scan check up.”
It is signed by the attending doctor. I note that what the doctor has stated is that, clinically, there is no abnormality and that it is the applicant who wishes to have the “CT brain scan check up.” There is nothing here to indicate, apart from compliance with the applicant’s wishes, that the doctor felt that there was any need, or reason, for such a brain scan. It was not the doctor’s diagnosis of the medical condition that led to that treatment or procedure being arranged for the applicant. Rather, it was the applicant’s request.
As Mr Mitchell submits, there is nothing in the medical certificate to say that the applicant is unable to attend Court. Although the certificate refers to unfitness for work, there is nothing to say that she is unable to attend Court, and nothing to say that she is unfit to appear to make submissions in her matter. I agree with Mr Mitchell that there is a degree of implausibility. The headache which the applicant claims to suffer is said to arise out of an incident that occurred in January. Yet the doctor has provided a certificate of unfitness for work for three days only some time later in March.
There is a coincidence that one of those three days covers the date of the final hearing. I also agree with Mr Mitchell that neither the X-ray nor the CT brain scan are invasive procedures such as to prevent the applicant attending Court. If the applicant were to claim before the Court that dizziness or headaches prevented her full participation, it was still open to her on the evidence or material that she has sought to put before the Court, that she could have come here today and sought an adjournment in person.
I note the similarity in the applicant’s claim made to the Tribunal when she successfully sought an adjournment of the hearing date where a medical certificate was provided by the same doctor in which the doctor gave the opinion that the applicant was suffering from “dizziness due to hypertension” (CB 62), and again, the doctor stated that she would be unfit for work for a three day period, which again happened to include the one day of the hearing before the Tribunal.
I also note that the applicant has not sought to put before the Court any report of the alleged robbery that gave rise to her claimed headaches. There is no police report before the Court, nor any reference to the matter having been reported to the police. I am not satisfied by the applicant’s explanation as to the reason that she cannot attend. While it is open, in my view, to make an inference that the applicant has taken this course to avoid attending the hearing before the Court, I do not believe I need to draw that inference to say that there is nothing in the material that the applicant has provided to the Court that would satisfy the Court that she has given an adequate explanation as to her inability to attend.
I note that it is now nearly 25 minutes past the scheduled hour. The applicant has not appeared. It was likely that she would not appear, given the communication that she sent to the Court to which I have already referred. The reasons that I refused the applicant’s request for an adjournment are similar to the reasons that cause me to agree with the Minister’s application that the matter be dismissed for lack of appearance by the applicant.
The application for an adjournment and the applicant’s explanation for her inability to attend are, for all the reasons that I have already stated, unsatisfactory. It is also open to the applicant on the material that she has put before the Court to have come before the Court and, if indeed there was some difficulty in making her submissions, she could have at least attended and put those matters to the Court. But ultimately, I am not satisfied as to the applicant’s explanation. I use the term in context, as to the extent that the explanation can be inferred from the material that the applicant has put before the Court. I am not satisfied and, therefore, the application should be dismissed for the applicant’s non-appearance at a final hearing, a hearing of which she has known about since 23 October 2007 and of which she knew would occur today.
I note also that beyond her application to the Court and the affidavit filed on the same day, which annexed the Tribunal’s decision record, the applicant has done nothing further to progress her application before the Court. The applicant was provided with the opportunity to file further material evidence at the first court date on 22 March 2007, an occasion where she again attended and was assisted by an interpreter in the relevant language and signed short minutes of order for which the process for the conduct of the before the Court was settled. I note that the applicant has taken no steps to further her application to this Court and I note, in any event, the very scant, if I may describe them in that way, and I do not mean to do it in any negative way, but the grounds of the application were: “I was struck by dizziness” on the date of the hearing before the Tribunal or that prior to the Tribunal hearing, the Tribunal “did not give [the applicant] enough time.”
The applicant complained of dizziness, huge pressure at the hearing and made some unsubstantiated complaints about the level of interpretation at the hearing. Beyond that, the applicant has done nothing to particularise or further substantiate her claims. In any event, the applicant has not appeared today when the matter was called.
There is nothing before the Court, in my view, to argue against a costs order being made. It can be inferred that the applicant is claiming some medical difficulty, although for the reasons that I have already stated, the view of the relevant medical practitioner appears to be that procedures that are being arranged for the applicant are at her request and her wish, and there is nothing beyond the doctor exceeding to her wishes.
For the reasons that I have already said, the applicant could have attended Court today and further put forward any difficulties she may have had in that regard. As such, there is nothing to argue against a costs order being made. As to the amount, I note that it is below the amount set out in the relevant schedule to the Rules. I note the work that has been done by the Minister’s legal representatives, various attendances at Court, multiple copies of the Court Book that have been prepared, the preparation of written submissions, briefing of Counsel, and attendance by Counsel at the final hearing today. As such, the amount sought, in my view, is a reasonable amount, so I will make that order.
It is probably appropriate, I think too, given that the applicant has made some attempt to communicate with the Court, that I make the order that the Minister’s solicitors write to the applicant and notify her of Rule 16.05, so that if there is some future occasion, the applicant may pursue that avenue if available to her.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 14 March 2008
Correction
Under the heading “Reasons for Judgment” insert “(Ex Tempore; Revised from Transcript)”.
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