SZMQY v Minister for Immigration and Citizenship

[2009] FCA 497

FEDERAL COURT OF AUSTRALIA

SZMQY v Minister for Immigration and Citizenship [2009] FCA 497

SZMQY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 74 of 2009

BESANKO J
7 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 74 of 2009

BETWEEN: SZMQY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellant’s appeal to the Court be dismissed for failure of the appellant to attend the hearing of the appeal.

2.The appellant is to pay the first respondent’s costs to be taxed.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 74 of 2009

BETWEEN: SZMQY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the first respondent for an order under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) that the appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal. The appellant’s appeal was listed for hearing before me on Monday, 4 May 2009 at 10.15 am. The appellant was given notice of that hearing. The appellant did not appear on 4 May 2009. A medical certificate by Dr M Azam was forwarded to the Court. That certificate is in the following terms:

   “Medical Certificate

   THIS IS TO CERTIFY THAT

   [SZMQY]

   IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
   Saturday, 2 May 2009   TO  Tuesday, 5 May 2009    INCLUSIVE
   He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION

   This Certificate was completed on 2/5/2009

   [signed]
   Dr.M Azam”

2. Despite the paucity of information in the medical certificate, and the non-appearance of the appellant on 4 May 2009, I adjourned the hearing of the appeal to today. The appellant was given notice of the hearing today by the Deputy District Registrar and, as the affidavits of Ms Dunn illustrate, he was contacted by the first respondent and was aware of the hearing today. In fact, yesterday, the Court received a letter from the appellant in the following terms:

   “SUBJECT:  ADJOURNMENT OF COURT PROCEDINGS [sic]

   SIR,

   I wish to point out that due to continuos [sic] deteriotion [sic] of my health condition I am still unable to proceed for court trials.
   My doctor under which I am under treatment is not available today am WED. 6th MAY 2009. I will request him tomorrow ie. THU. 7th May 2009 to send my thorough MEDICAL REPORT/CERTIFICATE in your respect for your complete satisfaction.
   I am extremely sorry for this inconvenience.

   I therefore request you to adjourn court procedings [sic] for 15 to 20 days at your convenience and oblidge [sic]

   Sincerely yours.
   [signed]
   [SZMQY]
   FILE NO. NSD/74/2009.”

3. No further documentation has been received from the appellant and he does not appear today. The appellant has not provided any information about his medical condition. None is provided in the medical certificate from Dr Azam, and none is provided in the letter from the appellant, dated 6 May 2009. The appellant has been given an opportunity to present evidence in support of a claim that he was unable to attend the hearing on Monday and is unable to attend the hearing today. I am not satisfied that he has a genuine reason for not attending the hearing today.

4. In those circumstances, I think it is appropriate to make an order that:

   1.The appellant’s appeal to the Court be dismissed for failure of the appellant to attend the hearing of the appeal.

   2.The appellant is to pay the first respondent’s costs to be taxed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        18 May 2009

The Appellant did not appear
Counsel for the First Respondent:	Mr J A C Potts
Solicitor for the First Respondent:	Clayton Utz

Dates of Hearing:	4, 7 May 2009
Date of Judgment:	7 May 2009