SZQLK v Minister for Immigration - [2011] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 960

MIGRATION – Review of decision of the Refugee Review Tribunal – application dismissed for non-appearance.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r.13.01, 16.05

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant:

SZQLK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1533 of 2011

Judgment of:

Nicholls FM

Hearing date:

7 October 2011

Date of Last Submission:

7 October 2011

Delivered at:

Sydney

Delivered on:

7 October 2011

REPRESENTATION

The Applicant:

No appearance

Appearing for the Respondents:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 19 July 2011 is dismissed pursuant to Rule 13.01(3)(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $4,300.00.
Within 7 days of the making of these orders the first respondent’s solicitors write to application at the address for service by letter sent by registered post notifying the applicant of the orders made today and of Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1533 of 2011

SZQLK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from transcript)

I have before me today an application made on 19 July 2011 under s.476 of the Migration Act1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 June 2011, which affirmed a decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a national of the People’s Republic of China (“China”). When the applicant appeared at the first Court date in this matter, on 10 August 2011, he was assisted by an interpreter in the Mandarin language. The matter was set down for final hearing today. In these circumstances, I am satisfied he would have been on notice that the matter was set down for hearing today at 10.15am.
Relevantly, I note also that on that occasion a number of orders were made, some of which were directed to providing the opportunity for the applicant to file any amended application, any evidence and, indeed, written submissions in support of his arguments.
I note also that the application to the Court is in what can only be described as the most general of terms: a general assertion of jurisdictional error lacking any particularity. Indeed, ground one really cannot be said to rise above a request for impermissible merits review in the circumstances (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
In any event, when the matter was called today there was no appearance by the applicant. Although the Court was unaware of any communication by the applicant, Ms Whitmore, who appeared for the first respondent, tendered a document (which is marked Respondent’s Exhibit 1 – “RE1”) and was sent to the Registrar of the Court yesterday afternoon. The document is in two parts. One is a letter from the applicant in the following terms:
“Attention to: Federal Magistrates Court Registar.
…
Dear Sir or Madam,
…
I am not able to attend the hearing tomorrow at the Federal Magistrates Court due to my medical condition. May I request that the hearing be adjourned until I recover?
Please see enclosed a copy of my medical letter.
…”
That medical letter is a medical certificate signed by a doctor at the Hurstville City Medical Centre, and is in the following terms:
“This is to certify that [the applicant]…”
and then from a series of options, the following is checked:
“ will be unable to work
…
from 5/10/11 to 7/10/11”
It is dated 5 October 2011 (5/10/11). Notwithstanding that, the Minister has asked today, through his representative, that the Court dismiss the application, pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), in the absence of the applicant given his obvious non-appearance.
So there are two matters. The first is whether the adjournment requested by the applicant should be granted. The second is that the substantive application be dismissed for want of appearance.
It is clear that the applicant had notice of the hearing date today and has had such notice since 10 August 2011, just on a period of two months ago. In that period he has done absolutely nothing to enhance or support any of the complaints that he made in his initial application. It is the case that the applicant was referred to a lawyer on the panel of the Court’s “Refugee Review Tribunal Legal Advice Scheme”. From the Court records, the confirmation of advice signed by that lawyer indicates that a conference was held with the applicant on 23 August 2011. Written advice was provided to him, and that also occurred on 23 August 2011.
In those circumstances, nonetheless, nothing has been heard from the applicant until yesterday, when the applicant sought an adjournment and provided a medical certificate in support. The medical certificate, even if accepted on its face, does not explain the applicant’s inaction in attending to the opportunities that were provided him to bolster, and indeed to prosecute, his claims before the Court.
So the question is: should the adjournment be granted? I accept submissions from Ms Whitmore as to the deficiency of the medical certificate itself in explaining the applicant’s absence from the hearing today. The medical certificate states that the applicant will be unable to work. It says nothing about an inability to attend Court. It says nothing about the nature of the medical condition of the applicant, and says nothing about whether any such medical condition prevents the applicant from participating in a meaningful way in these proceedings.
For example, if the inability to work is related to some injury to a limb I have, in the past in such circumstances, arranged for appearances by telephone where these matters can be further explored with the applicant. In some circumstances this proceeding could have gone ahead. It must be remembered this is not a final hearing but an occasion for the giving of directions.
But what we are left with is simply a medical certificate which may or may not be convenient in the circumstances for the applicant. But nonetheless, on its face, a medical certificate, which does not explain, let alone provide any particularity to, the applicant’s absence from the Court today.
I am guided by and follow the approach taken in the cases cited by Ms Whittemore (NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 at [24] and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (“NAKX”) at [6]) where, in similar circumstances, the letter and certificate were held by the Federal Court to be unsatisfactory (noting also, with reference to [22] and [5] respectively, the current applicant’s medical certificate does not even rise to the level of information provided in the medical certificates in those two cases).
In particular, I note what Lindgren J said in NAKX, which closely approximates the circumstances of this case (except for the fact that in the case before Lindgren J the certificate was addressed to an inability to attend Court, while in this case, there was an inability to work) at [6]:
“The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.”
Just so in this case. There is nothing from the applicant, either by way of his medical certificate or, indeed, in his covering letter, to say why his medical condition leads to his inability to attend. Given that circumstance, I am satisfied that it is appropriate that the applicant’s request for an adjournment be refused. I so refuse the request for an adjournment.
That then leads to whether I should agree to the Minister’s application that the substantive application be dismissed for want of appearance.
In circumstances where the matter was called, the applicant did not appear, and there has not been a satisfactory explanation provided to the Court for the applicant’s non-attendance, noting the distinction between explanation and satisfactory explanation, referring to the matters that I have already canvassed in that regard, it is appropriate that I agree with the Minister and that the matter be dismissed, pursuant to r.13.03C(1)(c) of the Rules. Noting, in addition the matters to which I touched on or referred to earlier about the applicant’s failure to prosecute his case before this Court. Other than just making the application to the Court and receiving advice, the applicant has done nothing further. So I will make the order sought by the Minister.

Costs

It is appropriate that an order for costs be made. There is nothing in the circumstances to argue against the making of such an order in the normal course of events. As to the amount, I am satisfied, having regard to the work actually done by the Minister’s solicitors in responding to the application, that the amount sought is a reasonable amount in all the circumstances.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 5 December 2011