SZQHP v Minister for Immigration
[2011] FMCA 952
•30 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQHP & ORS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 952 |
| MIGRATION – Failure by the applicant to attend scheduled hearing – whether medical certificate provided in support of adjournment application was sufficient – whether grounds of application for judicial review disclose any error with any or any reasonable prospects of success. |
| Federal Magistrates Court Rules2001 (Cth) rule 13.03C(1)(c); 16.05 |
| Applicant: | SZQHP, SZQHQ, SZQHR, SZQHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1148 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 November 2011 |
| Date of Last Submission: | 30 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2011 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Mr Wood (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1148 of 2011
| SZQHP, SZQHQ, SZQHR, SZQHS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first named applicant with the pseudonym SZQHP is the primary refugee applicant. The other applicant’s claims are dependent on those of the first named applicant. The second named applicant is the husband of the first named applicant and the third and fourth applicants are the children of the first and second named applicants.
The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 7 June 2011, be dismissed by reason of the failure of the applicants to appear at today’s scheduled hearing, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
In support of that application, the solicitor for the first respondent, Mr Wood, tendered a letter dated 23 November 2011 addressed to the applicants enclosing the first respondent’s submissions. The letter informed the applicants that if they did not attend the hearing either in person or by legal representative then the first respondent would seek to have the proceeding dismissed with costs. The letter also provided the applicant with the time, date and address of today’s hearing. That letter is marked “Exhibit 1R”.
The second document is a copy of an email dated 23 November 2011 sent to the applicants’ email address from the first respondent’s solicitor, Mr Chami, attaching a copy of their submissions and informing the first named applicant that a hard copy had been sent by post. That document is marked “Exhibit 2R”.
The third document is a copy of a file note by Mr Wood, dated
23 November 2011, in which Mr Wood records that he called the first named applicant ten minutes after emailing Exhibit 2R and was informed by the first named applicant that she had received the email. That document is marked “Exhibit 3R”.
At 10.02 pm last night, 29 November 2011, the first named applicant faxed to the Court a letter, dated 29 November 2011, in the following terms:
“I wish to advise that due to heavy bleeding I am unable to attend my court hearing listed on 30 November 2011 at 10:30 am in the Federal Magistrates Court, 80 William Street, East Sydney.
Please find attached a Medical Certificate from Dr Ali Sarfraz certifying my medical condition.
Therefore, I would be most grateful if another hearing date could be given in this matter.”
The first named applicant also attached a document, dated
28 November 2011, purporting to be a medical certificate from Dr Ali Sarfraz.
The medical certificate states:
“This is to certify that I have examined (the first named applicant) on 28/11/11.
She was suffering from Menorrhagia
and was unfit for attendance from 28/11/2011
will be unfit to resume attendance from 1/12/2011”
Those documents together will be marked “Exhibit 4A”.
I understand from Exhibit 4A that the applicants seek to adjourn today’s hearing on the basis of the medical condition of the first named applicant. The first respondent was made aware of the applicants’ adjournment application and the medical condition of the first named applicant shortly before court this morning. However, Exhibit 4A was received by facsimile by the solicitor for the first respondent at 10:04pm on 29 November 2011.
RECORDED : NOT TRANSCRIBED
The applicants’ application for an adjournment is opposed by the first respondent on the basis that the applicants have not filed any further material since the originating application and supporting affidavit filed on 7 June 2011. Further, the applicants were made aware at the directions hearing on 1 July 2011 that if there was no appearance at any scheduled hearing or court event, the application may be dismissed without further notice.
The first respondent’s solicitor submits that the medical certificate is insufficient to explain why the first named applicant is unfit to attend today’s scheduled hearing.
In the ordinary course, matters to which the court would have regard in considering an adjournment concern the explanation for the failure of a party to appear, together with the prospects of success of the application.
The initiating application filed by the applicant on 7 June 2011, identified the following grounds:
“1. The Delegate of the RRT misunderstood my claim and misapplied the law.
2. The RRT Member’s reasoning is unreasonable based on the torture endured and persecution.”
Those grounds are entirely unparticularised and make bare assertions that, without more, do not disclose an error of law capable of review.
The respondent filed a response on 10 June 2011 opposing the applicants’ application for constitutional relief on the basis that the decision of the Tribunal is not affected by a jurisdictional error. The first named applicant attended a directions hearing before a Registrar of this Court on 1 July 2011. On that occasion, the first named applicant was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon by 5 August 2011, to file and serve any evidence by way of affidavit by 5 August 2011, and to file and serve written submissions by 17 November 2011. The first named applicant was also appointed the litigation guardian of her children, the third and fourth applicants.
On that occasion, the first named applicant was referred to the Court’s Legal Assistance Scheme. I note the first named applicant met with a panel advisor on 17 August 2011 and received advice in accordance with that scheme. Further at the directions hearing on 1 July 2011, the first named applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language in order to assist her should she wish to take her own advice.
There has been no document filed by or on behalf of the applicants, either in accordance with those directions or otherwise. In the circumstances, the only grounds upon which the applicants rely are those contained in the originating application.
The information contained in the medical certificate is a completed standard form without any further indication as to what it is about the first named applicant’s condition that would prevent the first named applicant from attending Court today.
I am not persuaded on the face of the medical certificate that there is sufficient detail to explain what it is about the first named applicant’s condition that would prevent her attendance today. Moreover, based on the grounds of the application for judicial review of the Tribunal’s decision, the first named applicant, and consequently the other applicants, have no or no reasonable prospects of success.
The first named applicant has had every opportunity to have legal advice and to amend the application to identify an error capable of review by the Court. For whatever reason, she has chosen not to do so.
I also have regard to the fact that, it appears that the first named applicant has had the medical certificate in her possession since
28 November 2011, yet it was not faxed through to the Court until late last night at 22.02pm and to the first respondent’s solicitor’s at 22.04pm.
Having regard to all the circumstances, I am not satisfied that the applicants’ application for adjournment is made out and that application is refused.
In the circumstances, there has been no appearance by the applicants at today’s scheduled hearing and the first respondent’s application at the proceeding be dismissed by reason of the failure of the applicant’s to appear at today’s scheduled hearing should be made with costs.
I am satisfied that the first named applicant was aware of today’s scheduled hearing, and again having regard to the circumstances referred to above, I am satisfied that the orders sought by the first respondent are appropriate.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM.
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