SZUIL v Minister for Immigration & Border Protection

[2014] FCCA 1878

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1878

Catchwords:

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether certificate is sufficient to support adjournment application – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Federal Circuit Court Rules 2001 (Cth) rr.13.03C, 44.12

Cases Cited:
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Applicant: SZUIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1300 of 2014

Judgment of: Judge Emmett

Hearing date: 13 August 2014

Date of Last Submission: 13 August 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

No appearance was made by, or on behalf of, the applicant.

Solicitors for the Respondents: Ms Chloe Hillary
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1300 of 2014

SZUIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this court, commenced by way of application filed on 15 May 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. The applicant appeared before me at a directions hearing on 4 August 2014. At that time, the matter was set down for hearing today at 10:00am, pursuant to r.44.12 of the Rules on the basis that the first respondent contends that the applicant show cause why the respondent should be required to respond to the application.

3. Last night, a fax was sent to the Court from the applicant. The medical certificate attached is in the following terms:

   “THIS IS TO CERTIFY THAT on 12/8/2014

   I examined [the applicant] who in my opinion is suffering from: medical illness and will be unfit for work

   From: 12/8/2014  To: 16/8/2014 inclusive

   12^th August 2014

   Dr Yik Choon Chong

   General Practitioner

   2510098F”

4. I am informed by the first respondent’s solicitor this morning, Ms Hillary, that the fax was not sent to the first respondent. However, to the extent that the applicant appears to be seeking an adjournment of today’s hearing, the first respondent opposes that request on the basis of the inadequacy of the medical certificate. The medical certificate has no diagnosis other than to say that the applicant is suffering from “medical illness”. The medical certificate states that the applicant will be unfit for work but makes no mention as to whether or not the applicant would be fit to attend court.

5. The terms of the medical certificate are not sufficient to explain why the applicant is unable to participate effectively in today’s hearing. It does not address the critical question of whether and, if so why, the medical condition would prevent the applicant from travelling to the Court and participating effectively in a court hearing today (see NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J).

6. In the circumstances, I am not satisfied that the applicant’s request for an adjournment is supported by sufficient evidence and is therefore refused.

7. I note that at the directions hearing on 4 August 2014, the applicant was given leave to file and serve, by 8 August 2014, an amended application, and any further evidence and submissions, in support of the application for judicial review of a decision of the Refugee Review Tribunal dated 15 April 2014. I also note that, at that directions hearing, I explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court and, on their face, did not raise an arguable case.

8. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The applicant was also provided with a copy of the rule pursuant to which the matter was set down for hearing. The applicant was further provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.

9. The applicant confirmed that she wished to continue with her application and, for that reason, was given leave to file and serve an amended application and evidence and submissions in support. There has been no document filed by, or on behalf of, the applicant, either in accordance with those directions, or otherwise.

10. For the sake of completeness, I set out the submissions of the first respondent in support of its opposition to the granting of any relief to the applicant:

    “17   The First Respondent respectfully submits that neither of the applicant's grounds go any higher than to seek impermissible merits review.

    17.1  Ground one largely contains statements of fact, and takes issue with the merits of the RRT's decision.

    17.2  Ground two suggests that the decision of the RRT was unfair. However no particulars are provided. Insofar as the ground might be understood as an allegation of lack of procedural fairness, the First Respondent submits that such an allegation cannot be sustained and this ground goes no higher than to seek impermissible merits review.

    18     A Court undertaking judicial review cannot review the merits of the Tribunal's decision. 

    19     The First Respondent further submits that the grounds of the applicant's application misunderstand the findings of the RRT.

    19.1  The RRT rejected the applicant's claims to have been involved in Falun Gong, either in China or in Australia.

    19.2  Accordingly there can be no error in the RRT's decision in terms of its understanding or knowledge of country information regarding Falun Gong persecution in China.”

11. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and the orders sought by the respondent are appropriate.

12. Accordingly, the proceeding before this court, commenced by way of application filed on 15 May 2014, should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 25 August 2014