SZQBS v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 415
•31 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 415 |
| MIGRATION – Failure by the applicant to attend scheduled hearing – whether medical certificate provided in support of adjournment was sufficient – whether proceedings should be dismissed without further notice. |
| Federal Magistrates Court Rules2001 (Cth), rr.13.03C(1)(c); 16.05 |
| MZXJN v Minister for Immigration & Multicultural Affairs [2006] FCA 1624 NAKX v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1559 |
| Applicant: | SZQBS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 554 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 May 2011 |
| Date of Last Submission: | 31 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2011 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Ms N. Johnson (Sparke Helmore) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 554 of 2011
| SZQBS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the first respondent that the proceeding before this Court commenced by way of application filed on 15 March 2011 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.
On 14 April 2011 the applicant attended a directions hearing before me. On that occasion, the applicant was given leave to file and serve an amended application and any evidence in support by 23 May 2011. The applicant was also directed to file and serve submissions in support of his application by 27 May 2011. The applicant elected to participate in the Court’s legal advice scheme and I note that the applicant has duly participated in that scheme. In addition, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
However, no documents have been filed by the applicant or on his behalf, either in accordance with those directions or otherwise.
At that directions hearing, the matter was set down for final hearing today at 10:15am. The address of the Court was clearly provided for the applicant in the order.
It is now 10.55am, and the matter has been called outside and there has been no appearance for the applicant.
In support of the application, the first respondent’s solicitor, Ms Johnson, tendered a letter dated 25 May 2011 from the first respondent’s solicitor addressed to the applicant at the applicant’s address for service. The letter was marked “Exhibit 1R” and enclosed by way of service a copy of the first respondent’s submissions.
The first respondent’s letter informed the applicant that the matter was listed for hearing today at 10.15am and again provided the address of the Court. The letter further informed the applicant that if he did not attend on this occasion the first respondent would seek orders from the Court that his matter be dismissed and that she pay the first respondent’s legal costs for the proceeding.
RECORDED : NOT TRANSCRIBED
Ms Johnson has also tendered to the Court this morning a facsimile from the applicant dated 31 May 2011 annexing a medical certificate. Those two documents together are “Exhibit 2R.”
Exhibit 2R is an unsigned document that is headed “Notice Of My Sickness” and states:
I am unable to attend the hearing today due to my sickness, so I would like the hearing to be postponed until I am well. I have a medical certificate which I have faxed together with this notice. Thank you.
The name of the applicant and the handwritten date 31 May 2011 is at the end of the facsimile.
The medical certificate, also faxed, is dated 30 May 2011 and purports to be signed by Dr K.C. Chan. It states:
This is to certify that I have examined (the applicant) and in my opinion she will be unfit for normal work from 30 May 2011 to 31 May 2011 inclusive due to viral illness.
There has been no communication received by this Court from the applicant seeking an adjournment of today’s scheduled hearing for any reason. The medical certificate is quite unsatisfactory. It does not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing. Indeed, the certificate makes no mention of the applicant’s obligation to attend Court this morning and to suggest that she is unfit to do so for any specified and identified medical condition (See MZXJN v Minister for Immigration & Multicultural Affairs [2006] FCA 1624; NAKX v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1559).
In the circumstances, I am not satisfied that Exhibit 2R satisfactorily excuses the applicant from attendance at Court this morning. I am not persuaded that Exhibit 2R provides any reasonable excuse or explanation for the applicant’s failure to appear at today’s scheduled hearing.
I am satisfied that the applicant was aware of today’s hearing and has chosen not to attend. I am further satisfied that the orders sought by the first respondent this morning are appropriate in all the circumstances.
The proceeding before this Court commenced by way of application filed on 25 March 2011, should be dismissed with costs.
ORDERS DELIVERED
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 June 2011
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