SZNDJ v Minister for Immigration

[2016] FCCA 1311

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNDJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1311

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – no appearance by the applicants – whether the applicants provided a satisfactory explanation for failing to appear – no satisfactory explanation provided – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

First Applicant: SZNDJ

Second Applicant: SZNDK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2814 of 2015

Judgment of: Judge Street

Hearing date: 31 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Sydney

Delivered on: 31 May 2016

REPRESENTATION

No appearance by or on behalf of the applicants

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The applicants pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2814 of 2015

SZNDJ

First Applicant

SZNDK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Tribunal made on 23 September 2015 affirming the decision of the delegate not to grant the applicants’ protection visas.

2. On 26 February 2016 this Court made orders fixing the matter for hearing today at 10.15 am.  It is now 12:05pm and the matter has been called outside the Court both by the pseudonym and by the parties’ full names, with the benefit of a suppression order, and the applicants have not appeared.

3. The first respondent asks for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  Mr Reilly of counsel took the Court to a medical certificate provided by the first applicant under cover of a letter dated 20 May 2016 seeking an adjournment. 

4. Mr Reilly submitted that the grounds identified in the certificate were inadequate to support an adjournment. In particular it did not appear that the medical officer’s attention had been drawn to the fixing of the matter for hearing or the nature of the hearing or what it was that the applicant would be required to undertake.

5. The reference in the certificate to the proposition that the first applicant was unable to travel long distances was unexplained and was not supported by any medical diagnosis or reasoning. Further, the certificate was given on 20 May 2016.  It is not apparent on the face of the medical certificate by the doctor what information was provided to the doctor about the hearing or travel method. I accept the first respondent’s submission that the medical certificate is inadequate to explain the absence of the applicants from the hearing today.

6. The covering email from the first applicant makes clear that the applicants were aware of the hearing date.  Further communications were sent by the applicants to the Court seeking an adjournment, and a new proposition was advanced that the first applicant was suffering from flu. No such condition was supported by any medical evidence.

7. The first applicant’s desire to stay at home and look after his wife and child is not an adequate explanation for the applicant’s failure to appear in Court.  The Court is satisfied that the applicants were well aware of the hearing date. 

8. The Court does not regard the communication sent to the Court which has been marked as exhibit A as providing an adequate explanation for the failure to appear or as being a sufficient explanation to warrant an adjournment of the matter in the interests of the administration of justice.

9. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s discretion under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 June 2016