SZQTS v Minister for Immigration and Citizenship
[2012] FCA 1094
•9 October 2012
FEDERAL COURT OF AUSTRALIA
SZQTS v Minister for Immigration and Citizenship [2012] FCA 1094
Citation: SZQTS v Minister for Immigration and Citizenship [2012] FCA 1094 Appeal from: SZQTS & Ors v Minister for Immigration & Anor [2012] FMCA] 468 Parties: SZQTS, SZQTT and SZQTU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 819 of 2012 Judge: EDMONDS J Date of judgment: 9 October 2012 Date of hearing: 5 October 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Solicitor for the First, Second and Third Appellants: The Second Appellant appeared in person Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 819 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQTS
First AppellantSZQTT
Second AppellantSZQTU
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
5 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The second appellant be appointed the litigation representative of the first appellant pursuant to Rule 9.63 of the Federal Court Rules 2011 (Cth).
2. The application be dismissed.
3. The second and third appellants pay the first respondent’s costs as agreed or taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 819 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQTS
First AppellantSZQTT
Second AppellantSZQTU
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
9 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 5 October 2012, I dismissed an interlocutory application dated 10 September 2012 to set aside orders I made on 21 August 2012 dismissing an appeal from a judgment of the Federal Magistrates Court (SZQTS & Ors v Minister for Immigration & Anor [2012] FMCA 468) for want of appearance on that date.
At the time of dismissing the interlocutory application, I indicated that I would subsequently publish my reasons and I now do so.
Prior to the hearing on 21 August 2012, my chambers received a letter from the second appellant, the mother of the first appellant and the wife of the third appellant, in the following terms:
To Whom It May Concern
I, [second appellant] is here to say that as you informed me to attend the hearing on 21st Aug 12 but I am really sorry that I am unable to attend the hearing. My husband and my son both are not feeling well, for the proof I am sending you their Medical Certificates. From my place to Sydney is 900 kms and it is really very hard for me to come over with small baby. I really want to attend the hearing. And I request you to postpone this hearing. I will be very thankful to you.
Dated Thanking You
14/08/2012 Yours Sincerely
[second appellant]
[Signature]
Ph:– […]
[Address]Attached to this letter were the following documents:
As a proof of appointments I am sending you the photocopies of the cards. The one on 21st Aug 12 is in Griffith Aboriginal Medical Centre on that day they will get a letter from doctor that [second appellant] is sick and [third appellant] is able to work. And they fax that certificate to you. And the other one is for [second appellant] on 20th Aug 2012 with Dr Horky for an operation. I will be very thankful to you if you help me in my hard times.
Dated [second appellant]
14/08/2012 Ph. No […]
[Signature]Dr. Shahid Abbas
MBBS
5 Wiradjuri Place,
Griffith. 2680.
Phone: 0269644533
Fax: 0269648785This is to certify that I have today examined:
[First appellant]
[Address]He has been having high grade fever with cough and was diagnosed as viral pharyngitis. His parents [third appellant] and [second appellant] has been taking care of him and are unable to travel because of sickness of this patient
Signed: [Signature]
Dr. Shahid Abbas 13.8.2012.
Dr. Shahid Abbas
MBBS
5 Wiradjuri Place,GRIFFITH. 2680.
Phone: 0269644533
Fax: 0269648785This is to certify that I have been treating
[Third appellant]
[Address]He has ongoing severe backache and has not been able to travel to Sydney because of severe pain He is getting treatment at Griffith
Signed: [Signature]
Dr. Shahid Abbas 10/8/12
Notwithstanding this correspondence, I dismissed the appeal for want of appearance because I was not satisfied that the medical condition of the third appellant as at 10 August 2012 still subsisted as at 21 August 2012 such that he was unable to travel to Sydney to attend the hearing. Moreover, I had grave reservations as to the veracity of the date of the medical certificate issued by Dr Shahid Abbas on the letterhead of Griffith Aboriginal Medical Service in respect of the third appellant’s condition. Additionally, there seemed nothing to prevent the second appellant attending the hearing apart from the length of travel from her home to Sydney.
On 10 September 2012 the appellant filed an interlocutory application applying for the orders I made on 21 August 2012 to be set aside. In support of the application there was filed what purported to be an affidavit of the first appellant, signed by the second appellant, which read:
1.I was born in Australia and applied for protection visa under the determination of Refugee status.
2.The Delegate of the minister for Immigration and Citizenship refused to grant my protection visa. I applied for review in the Refugee Review Tribunal, but the the [sic] Tribunal affirmed the delegate decision.
3.I filed Judicial review application before the Federal Magistrate. Honourable FM dismissed my application on motion date. I was not represented by any barrister or solicitor. I appealed to the Federal court but the Hon Judge dismissed my case without giving me the opportunity to appear in the court. I was sick and faxed the medical certificate to change my hearing date but ultimately gave no weight. The Court also failed to consider that the Tribunal decision was an improper exercise of the power conferred by an enactment in pursuance of which it was purported to be made. The decision was fundamentally influenced by not receiving evidence from us in the court.
The interlocutory application for setting aside the orders I made on 21 August 2012 was opposed by the respondent on the basis that the appellants’ failure to appear on 21 August 2012 was not “adequately explained by the medical certificates and, more critically, there is no … arguable case … to point [to] any error in the federal magistrate’s reasons that would justify the matter being reinstated and an appeal to continue”: T 3/31.
In the circumstances, I gave the second appellant the opportunity to articulate the alleged errors in the reasons of the Federal Magistrates Court. The second appellant said that the Federal Magistrates Court did not take into account all the documents put before it or the Tribunal, it is not clear which, but she was not able to identify what those documents were. In short, she said that she wanted the Court to consider the whole of her case again. No mention was made of the two grounds in the notice of appeal filed 13 June 2012, but that is not surprising because they are expressed in such general terms, without any particularisation, they may be summarily rejected.
In my view, there was no utility in reinstating the appeal by setting aside the orders made on 21 August 2012, and for that reason I dismissed the interlocutory application with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 9 October 2012
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