SZNIM v Minister for Immigration & Citizenship

[2009] FCA 1547

FEDERAL COURT OF AUSTRALIA

SZNIM v Minister for Immigration & Citizenship [2009] FCA 1547

SZNIM v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 999 of 2009

GRAY J
17 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 999 of 2009
GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNIM
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	17 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The hearing of the appeal be adjourned to a date to be fixed between 8 February and 5 March 2010.

2.        The first respondent’s costs of today be reserved.

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 999 of 2009
GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNIM
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	17 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal was listed for hearing this morning.  Yesterday, the appellant communicated with the Court, attaching a medical certificate from the Caritas Medical Centre.  That medical certificate was completed on 12 November 2009, but it certifies that the appellant is suffering from a medical condition which is of sufficient severity to prevent attendance at the Federal Court from 17 November 2009 onwards.  The appellant is said to be awaiting a colonoscopy and gastroscopy for bleeding from his back passage and stomach complaints, and is dizzy and weak as a result, so cannot attend.

2. Yesterday, my associate received a request from the solicitors for the first respondent, the Minister for Immigration and Citizenship, to conduct the hearing by telephone.  I rejected that request, because it seemed to me from the information in the medical certificate that the appellant would not be able to acquit himself very well, either by telephone or if he appeared in person.  In particular, if he is in pain or significant discomfort, and suffering from dizziness and weakness, he was likely to be in no condition to put submissions that might do his case justice.  Regrettably, the solicitors for the appellant were informed yesterday by the Court that the hearing date for this morning had been vacated.  At no stage did I give a direction vacating the hearing date and the matter has therefore been listed this morning.

3. Ms Mills from the solicitors for the first respondent has appeared.  The appellant, not surprisingly, has not answered the call.  Ms Mills has submitted that the appeal should be adjourned to be heard some time later in the current appeal sittings.  She suggested the last day of the appeal sittings.  I am not in a position to know whether a judge would be available on that date.  More importantly, the medical report does not indicate when it is likely that the appellant will receive treatment or further investigation and what his condition is likely to be within the next couple of weeks.  Accordingly, it seems to me to be appropriate to adjourn the matter to the next appeal sitting between 8 February and 5 March 2010.

4. Ms Mills also applied for an order that the appellant pay the first respondent’s costs of the adjournment.  It seems to me more appropriate to reserve those costs.  If the information in the medical certificate is correct, it is hardly the fault of the appellant that he is unable to appear.  Reserving the costs will enable the first respondent to obtain an order including those costs, if the first respondent succeeds in resisting the appeal.  Alternatively, if the appellant succeeds on the appeal, the question of the costs of the adjournment would remain alive and the first respondent would be able to argue it.

5. For these reasons the orders I make are:

   1.The hearing of the appeal be adjourned to a date to be fixed between 8 February and 5 March 2010.

   2.        The first respondent’s costs of today be reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

Associate:

Dated:       18 December 2009

The appellant did not appear and was not represented
Counsel for the first respondent:	Ms Mills
The second respondent submitted to any order the Court might make, save as to costs
Solicitor for the respondents:	Clayton Utz

Date of hearing:	17 November 2009
Date of judgment:	17 November 2009