SZBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1749 (2 December 2005)

SZBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1749

SZBJL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR
NSD 824 of 2005

ALLSOP J
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 824 of 2005

BETWEEN:	SZBJL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 824 of 2005

BETWEEN:	SZBJL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY

1 In this matter the appellant has not appeared today, that is in circumstances described by me on the transcript which transcript is annexed to these reasons. The medical certificate referred to in the reasons and the correspondence and file notes referred to by me are together annexed and stapled and marked as exhibit A in the appeal for identification purposes should that become necessary in due course.

2 As those facts reveal there is no real basis for any view in the appellant that he need not attend today. An interpreter has been arranged, counsel has been briefed and he is present in Court having prepared written submissions with his instructing solicitor.

3 I am prepared to accept the medical certificate at face value. It provides no evidence, however, for why the appellant could not prepare any further written submissions or oral submissions for today's appeal if he has any. The medical evidence does not give any indication as to any basis to conclude that the appellant was otherwise prevented from 15 November 2005 onwards from putting such time into this matter as was necessary to prepare argument.

4 In those circumstances there is no satisfactory explanation for the absence of the appellant. Mr Reilly applies on behalf of the Minister for an order under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 and in the circumstances I propose to accede and to dismiss the appeal for the non-attendance of the appellant to attend a hearing relating to the appeal.

5 I direct that the first respondent through its solicitors inform the appellant by letter dispatched no later than midday on Monday 5 December by prepaid post to the appellant's address for service or last known address on the court file of the making of this order and that if any application is to be made to set aside this order it is to be made by notice of motion filed in the Registry supported by an affidavit setting out in full the basis of any application to set aside the order and I direct that the order not be entered prior to midday on Friday 16 December 2005.

6 I order that the appellant pay the first respondent's costs as part of the orders of today.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

No appearance by the Applicant.

Counsel for the First Respondent:	Mr T Reilly

Solicitor for the First Respondent:	Blake Dawson Waldron

Date of Hearing:	2 December 2005

Date of Judgment:	2 December 2005

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533

TRANSCRIPT OF PROCEEDINGS

O/N 22147
FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

ALLSOP J

No NSD 824 of 2005

SZBJL

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS

SYDNEY

10.05 AM, FRIDAY, 2 DECEMBER 2005

MR T. REILLY appears for the respondent

Copyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Federal Court of Australia.

THE COURT: No appearance, your Honour.

HIS HONOUR: Thank you. There is no person apparently meeting that description. Mr Reilly, the following communications have taken place with my Chambers and I will put them on the record. On or shortly prior to 23 November my associate was called by the appellant saying that he was sick and he wanted an adjournment and he wouldn't be able to argue the case and my associate told the appellant to get in touch with Blake Dawson Waldron in the first instance.

Then on or about 23 November at about 20 past 11.00 the appellant called my associate asking for a decision and my associate said, the first thing to do is discuss it with the Minister and if they agree on a different date that probably would be all right. If you cannot agree then you will have to put on a motion before the judge.

He said he spoke with a lady from BDW earlier today and she said she would get back to him. My associate said, that is the first thing to wait for. He said he does not mind whether it is January or February. My associate said, okay, that's fine, you need to tell the Minister that, and my associate clarified that, if the Minister does not agree with you then a judge will have to decide it. Later that day at 10 to 5.00 my associate rang Imogen is it, your instructing solicitor?

MR T. REILLY: Yes, Ms Harcher-O'Brien.

HIS HONOUR: Thank you, and she had instructions that the Department were not prepared to accept the request for the adjournment without medical evidence. Your instructor had spoken to the appellant this morning and it would be easier to if you could get a medical certificate. The applicant said that he would probably not that it was just a request to the court.

Your instructor then indicated she had obtained instructions. The applicant has not yet been advised of this. She rang, his mobile service was unavailable and she was just apprising the court. On 25 November the appellant again rang my associate saying - obviously by that stage your instructor had spoken to him - that the lady from BDW did not agree to a different date so don't change the hearing date. My associate said that she was going to write to him to say that he needed to provide a medical certificate. He said he doesn't want to tell the doctor about the judge and DIMIA but if he can get a letter saying To Whom It May Concern then he will bring it.

My associate said that he would also need to provide a copy to Blake Dawson Waldron. He said, so do I need to call you any more, and my associate said, if you are going to bring a medical certificate you will have to let me know before the hearing date, he say, yes, of course.

On that day my associate then confirmed that telephone call in writing with a letter cc'd to Ms Harcher-O'Brien which you probably have - - -

MR REILLY: Yes, I do.

HIS HONOUR: - - - in terms that made it clear that the matter was listed for hearing today and any application for an adjournment made on that date will have to be supported by evidence. On 28 November,that is on Monday, at 20 past 1.00 a document was faxed to my associate. I don't know whether it was provided to Blake Dawson Waldron but this is from the South Eastern Sydney Area Health Service dated that date. It says:

That's the material that the court has that I am prepared to work on the basis of for what had previously been indicated as a difficulty with presentation today. What do you wish me to do today, Mr Reilly?

MR REILLY: Your Honour, I would ask that you dismiss the proceedings pursuant to section 25(2B)(bb)(ii) of the Federal Court Act.

JUDGMENT DELIVERED

EXHIBIT #A MEDICAL CERTIFICATE, CORRESPONDENCE AND FILE NOTES EXHIBIT #A MEDICAL CERTIFICATE, CORRESPONDENCE AND FILE NOTES EXHIBIT #A MEDICAL CERTIFICATE, CORRESPONDENCE AND FILE NOTES

JUDGMENT DELIVERED

MR REILLY: We seek costs.

HIS HONOUR: I order that the appellant pay the respondent's costs as part of the orders of today.

MATTER ADJOURNED at 10.19 am INDEFINITELY