SZSOC v Minister for Immigration

[2013] FCCA 459

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 459

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – application for an adjournment – adjournment application refused – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: SZSOC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 180 of 2013

Judgment of: Judge Nicholls

Hearing date: 10 April 2013

Date of Last Submission: 10 April 2013

Delivered at: Sydney

Delivered on: 10 April 2013

REPRESENTATION

The Applicant: No appearance

Appearing for the Respondent: Ms F Taah

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application to the Court for an adjournment, made by the applicant on 10 April 2013, is refused.

2. The application made on 31 January 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s set in the amount of $1,296.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 180 of 2013

SZSOC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made to this Court on 31 January 2013, pursuant to s.476 of the Migration Act1958 (Cth), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 January 2013, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

2. I also have before me today a bundle of relevant documents filed on 27 March 2013, which I have marked as Respondent’s Exhibit 1 (“RE1”) (the Court Book – “CB”).

3. I also have before me, as Respondent’s Exhibit 2 (“RE2”), communication from the applicant apparently sent to the Court’s Registry by facsimile transmission on 9 April 2013, at 22:44 hours, which I can only take as being around about quarter to eleven last night, but received in this Court this morning. The communication from the applicant says:

   “Dear Officer, I have period pain now and can not attend today’s direction, please kindly arrange another time of me.  Attachment is my doctor certificate.”

4. Attached to that letter is a copy of a certificate signed by a doctor who appears to be “Gurpreet Toor” (RE2). That doctor certifies that the applicant was seen at the “GBH” hospital, which I take, in context, to me to be the Griffith Base Hospital, on 9 April 2013 for a medical condition. The doctor asserts:

   “She is unfit for work from 9/4/2013 to 10/4/2013 inclusive”

   That is all the certificate states.

5. Today, the Minister’s representative, a solicitor employed by the Minister’s solicitors, Ms Taah, appeared for the Minister when the matter was called today (being the first Court date in this matter).

6. When the matter was called today there was no appearance by the applicant. That non-appearance, in part, can be explained by the communication which I have marked as RE2. 

7. Ms Taah, after seeking instructions, opposed what was properly understood as being a request by the applicant for an adjournment of the first Court date. The Minister’s solicitor sought that the substantive application in this matter be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) [now the Federal Circuit Court Rules 2001 (Cth)].

8. The question for the Court today is whether the applicant’s explanation for her non appearance is a satisfactory explanation such that the applicant’s request for an adjournment should be granted or whether it is not a satisfactory explanation such that the Minister’s application today for dismissal for non appearance should be granted.

9. In my view, the Minister’s application should be granted and the applicant’s application for an adjournment should be refused.

10. The reasons are as follows. However, I should note that I essentially agree with submissions made by Ms Taah this morning.

11. First, the applicant had notice of the first Court date today, given what was notified to her by the Registry of this Court when she filed her application. The matter was set down for first Court date at 9.15 am on 10 April 2013. In any event, the applicant plainly knew of the Court event today given the communication marked as RE2. So the first point is the applicant had notice, and I am satisfied that she was aware of the Court event today.

12. Second, having regard to the medical certificate (RE2), I agree with Ms Taah that the certificate is deficient in supporting the applicant’s application for an adjournment. There is nothing said in the certificate about any unfitness to attend at Court. The certificate is directed to an unfitness for work. 

13. Third, there is nothing in the Certificate itself to support the applicant’s contention of the specific medical problem. The reference to a “medical condition” is insufficient for the Court to be able to ascertain whether the medical condition that the applicant claims is such as to have supported both her absence today and her request for an adjournment.

14. The Certificate should also be seen in light of the conduct of the applicant when regard is had to the bundle of relevant documents that have been filed in these proceedings (RE1, also referred to as CB). It is quite clear at [20] – [21] (at CB 74 – RE1) that the applicant did not attend before the Minister’s delegate when invited to attend an interview to explain her claims. Further, she then did not attend, despite having been refused by the delegate and having made an application for review to the Tribunal, at the opportunity afforded to her by the Tribunal to attend a hearing ([22] at CB 74 – RE1).

15. I agree with Ms Taah that there is a pattern of the conduct in relation to the applicant’s attempt to seek protection in this country. That is, to make an application but not attend at relevant events to be able to prosecute her claims to protection. That pattern appears to have been extended before this Court today.

16. I am also mindful, as a separate point, in looking at the application to the Court that the applicant has given as her address for service a post office box number in Auburn, New South Wales, and a residential, or a street address also in Auburn, New South Wales. Yet the applicant’s attendance at Griffith Base Hospital in Griffith remains unexplained by her. 

17. Why the applicant finds herself in Griffith is, as I said, unexplained. It may be that the applicant was simply visiting Griffith, but that could have been explained to the Court. Obviously travel from Griffith to the Court is a different proposition than travelling from Auburn to the Court.

18. I also have regard to the grounds of the application. That is, the substantive application before the Court. The applicant asserts certain matters in relation to what she describes as her “first migration agent”. There is nothing in the Court Book (RE1) to show that the applicant had any assistance in filling out the application for a protection visa form (see CB 9 – RE1). Nor can I see that the applicant appointed any migration agent, either as an authorised recipient or, indeed, to represent her before the Tribunal (having regard to CB 49 – RE1). 

19. When I also have regard to CB 69 (RE1), the applicant’s address as provided to the Tribunal, and to which the Tribunal decision record was sent on 3 January 2013, was an address in Griffith, New South Wales. The two addresses for Auburn, New South Wales, that appeared on 31 January 2013 in her application to the Court, therefore, remained unexplained.

20. In any event, I am satisfied on the material before the Court that the application for an adjournment should be refused. The explanation proffered is not satisfactory for this purpose. Nor do the circumstances of the substantive application to the Court give rise to grant the adjournment.

21. I am satisfied that the Minister’s application for dismissal for want of appearance, in the face of a lack of any satisfactory explanation, should be granted. I will make those orders.

22. It is appropriate that an order for costs be made in this matter. The Minister has plainly taken certain action in responding to the applicant’s application. The formal Response and bundle of relevant documents (RE1) have been filed. I can see from the Court’s file that a number of other matters, normal in matters of this type, have been done by the Minister’s solicitors. I note also the attendance at Court today. I am satisfied that an order for costs should be made. I am satisfied that the amount sought is a reasonable amount. I will make the order in the amount sought.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  5 June 2013