SZMYZ v Minister for Immigration

[2009] FMCA 711

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 711

MIGRATION – No appearance.

Federal Magistrates Court Rules 2001

Applicant: SZMYZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3092 of 2008

Judgment of: Raphael FM

Hearing date: 15 July 2009

Date of Last Submission: 15 July 2009

Delivered at: Sydney

Delivered on: 15 July 2009

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Mr P Reynolds

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. Applicant to pay the First Respondent's costs assessed in total in the sum of $4,000.00. This order incorporates my previous order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3092 of 2008

SZMYZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant filed an application on 25 November 2008 seeking review of a decision of the Refugee Review Tribunal made on 10 October 2008.  The matter was due for hearing on 17 June 2009 but that date was later moved to 29 June 2009.  On 29 June 2009 the applicant attended with an interpreter in the Mandarin language. She claimed that she had suffered a severe hearing problem and was unable to hear sufficiently for the court processes to be carried out. She produced some receipts from her doctor, Dr Ananda, and an MRI request form and a receipt from a hearing clinic.  These documents seem to establish that the applicant had complained about a hearing problem and had received a certain amount of investigation of it in February and March of this year.  There was no up to date information.  The applicant had not intimated that she had any difficulties prior to the hearing but I ordered that the hearing be adjourned until 15 July at 9.15a.m. and that the applicant pay the costs thrown away.  I also required the applicant to provide the court with an up to date medical report indicating her ability to attend a hearing.

2. On 10 July there was sent into the court a letter, allegedly from the applicant, attached to which was a handwritten report on Dr Ananda's letterhead.  The letter states:

   “I have the court hearing on 29 June.  But my ear is hard to hear all the things.  The Judge asked me to provide current doctor certification before 15 July.  So now I provide my doctor who gave me the certification to FMC. 

   Hope considered my application further.

   Many thanks!

   Signed, applicant.”

3. The report from Dr Ananda is difficult to read but my best interpretation is that it says the following:

   “This is to state that applicant was first seen by me on 3 February 2009 for the problem of noise in her right ear and hearing difficulty. She was found to have sensor neural hearing loss in her right ear on clinical testing and was advised to undergo further tests to establish the cause of her deafness.”

4. Whilst this letter would seem to indicate that the applicant does have a hearing problem, it does not go so far as to say that she could not attend a hearing.

5. When the applicant attended at court on 29 June I had the interpreter write down in Mandarin what was required of her and the date and time of today's hearing. The applicant indicated to me at that time that she had read and understood it. Notwithstanding this, the applicant did not appear at 9.15a.m and was still not present when I began to deliver this judgment at 9.40a.m. In all the circumstances, and given that having read the court papers I have difficulty in finding any jurisdictional error in the Tribunal's decision, I propose to dismiss this matter for non appearance pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.  I order the Applicant to pay the First Respondent's costs assessed in total in the sum of $4,000.  This order incorporates my previous order as to costs.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  29 July 2009