SZONN v Minister for Immigration
[2010] FMCA 853
•13 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 853 |
| MIGRATION – No appearance. |
| Federal Magistrates Court Rules 2001 |
| Applicant: | SZONN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1590 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 October 2010 |
| Date of Last Submission: | 13 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2010 |
REPRESENTATION
| For the Applicant: | No appearance |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1590 of 2010
| SZONN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application in this court seeking review of a decision of the Refugee Review Tribunal dated 17 June 2010 on 21 July 2010. On 12 August 2010 he attended a directions hearing before Registrar Segal on which day the matter was set down for hearing today at 10.15a.m.
The applicant was not present in court at 10.15a.m. nor was she present when her name was called outside at 10.30a.m. On 12 October 2010 there was sent to this court a medical certificate from Dr Hala Khamas stating:
“This is to certify that Ms Applicant will be unfit for work due to medical condition from Tuesday, 12 October 2010 to Thursday, 14 October 2010 inclusive.
This Certificate was completed on 12.10.2010.”
When the court received this certificate, which does not make any reference to the applicant’s ability to attend court, it contacted the doctor to inquire of the applicant’s fitness to attend court. The doctor advised that the applicant was able to attend court and a decision as to whether or not to attend was for her to make. Upon receipt of the applicant’s first fax an email was sent to her at an email address which she had given on her application form. It stated:
“Dear Applicant.
We have received a medical certificate from Dr Khamas indicating you are unfit for work until 14 October. We propose to enquire of the Doctor as to your fitness to attend court. If the doctor advises you may attend court, you will be expected to attend and the case may be dismissed if you do not do so.”
After the court had spoken to the doctor, it sent further email to the applicant.
“Dear Applicant.
We have today spoken with Dr Khamas who has indicated there is no impediment to you attending court on Wednesday, 13 October at 10.15 am.”
Copies of these emails were sent to the respondent. In the absence of the applicant the respondent has requested that the matter be dismissed for non‑appearance pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (the “Rules). In the light of the matter set out above, in particular the paucity of any information concerning the nature of the applicant’s alleged unfitness and the views expressed by the doctor to the court, I propose to accede to that request.
The applicant may, however, make a further application to this court to restore the matter; but the court should make it clear to her that any application for restoration would need to be accompanied by clear evidence that she was unfit to attend a court hearing at 10.15a.m. on 13 October and, also, some indication of why she believes that her application has reasonable prospects of success. In this regard, the court notes in the grounds of application filed, the applicant states only:
(1)“My cousin RS has been granted permanent residency. We had travelled to Australia together on the same date and under the same circumstances.
(2)Fatwa meaning death notice has been issued against me by the Muslims Jihadists.
(3)My parents are being tortured and interrogated till date my location. The final result of my departure to Pakistan will be death.”
While these matters are, of course, serious they do not represent an articulation of a jurisdictional error. The application is dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 2 November 2010
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