SZOIB v Minister for Immigration & Anor [2011] FMCA 103 (1 February 2011)

Federal Magistrates Court of Australia

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SZOIB v Minister for Immigration & Anor [2011] FMCA 103 (1 February 2011)

Last Updated: 2 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 103

MIGRATION – Application to review decision of Refugee Review Tribunal – no appearance by applicant.

Federal Magistrates Court Rules, rr.13.03C, 16.05

Applicant:

SZOIB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 767 of 2010

Judgment of:

Barnes FM

Hearing date:

1 February 2011

Delivered at:

Sydney

Delivered on:

1 February 2011

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondents:

Mr Y Shariff

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) There being no appearance by the applicant the application of 8 April 2010 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules.
(2) The solicitors for the first respondent advise the applicant of the orders made today and of the effect of rule 16.05 of the Federal Magistrates Court Rules by letter sent by pre-paid post to the applicant’s last notified address for service within seven (7) days of today’s date.
(3) The applicant pay the costs of the first respondent fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 767 of 2010

SZOIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
2. The applicant sought review by application filed on 8 April 2010. He was not present today at the time listed for hearing. The respondent seeks an order that the application be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules.
3. In order to consider that application it is necessary to refer in some detail to the events that occurred prior to the hearing date. The applicant attended the directions hearing on the first court date specified in the application. He had the assistance of an interpreter. On that day directions were made, including that the applicant file and serve any amended application, affidavit evidence and transcript, written legal submissions and a list of authorities by specified dates. The matter was listed for hearing on 29 September 2010 at 2.15 pm. The applicant did not file any amended application, affidavit evidence, transcript or written submissions.
4. What occurred next, as far as can be discerned from the material in the file and correspondence from the applicant, is that the applicant wrote to the court by letter sent by the registry to my associate on 28 September 2010 indicating that he was unable to attend the hearing on 29 September 2010 due to a “severe sinusitis problem”. He requested another timetable. Annexed to that letter was a copy of a medical certificate dated 27 September 2010 which certified that the applicant was suffering from sinusitis and was unable to attend his “normal duties or study” from 27 September 2010 to 4 October 2010. Notwithstanding the general terms in which the medical certificate was expressed, I decided to grant the adjournment that was sought and the matter was adjourned until Wednesday, 20 October 2010 at 2.15 pm.
5. On a date prior to 20 October 2010 (possibly 19 October 2010) the applicant again wrote to the Court requesting a further postponement of the hearing, stating that he was unable to attend the hearing due to his medical condition. He attached a medical certificate dated 18 October 2010 from the same doctor, stating that he was “suffering from anxity (sic) polyuria under invistigation (sic)” and that he was “unable to attend his normal duties or study” from 18 October 2010 to 22 October 2010. Also annexed was a copy of a request for pathology tests dated 18 October 2010.
6. The solicitors for the Minister advised that they were instructed to consent to the applicant’s request for an adjournment. The hearing was adjourned until 14 December 2010.
7. However, in order to address concerns of the Minister’s solicitors and also of the court about the adequacy of the medical certificates provided by the applicant, my associate wrote to the applicant by letter sent by express post to both addresses provided by him, advising that the hearing had been adjourned until 14 December 2010 and giving him the opportunity to participate on that date by way of telephone link. The letter also advised that there would be no further postponement of a hearing on medical grounds in the absence of a medical certificate specifically addressing the applicant’s fitness to participate in a hearing either in person or by way of telephone link. He was also advised that if he obtained such a certificate he should advise his doctor that the doctor may be required to give oral evidence over the telephone in relation to any such certificate. The applicant was advised that if he did not attend (or participate in the hearing by way of telephone link) on 14 December 2010, his application may be dismissed for non-appearance.
8. On 13 December 2010 the court received a further request for postponement which again stated that the applicant was unable to attend the hearing due to a medical condition. An accompanying medical certificate dated 13 December 2010 (that is the day before the scheduled hearing) stated that the applicant was “suffering from anxity (sic), Allergic rhinoconjunctivitis” and again stated that he was unable to attend his “normal duties or study” from 13 December 2010 to 23 December 2010 inclusive. It did not address his fitness to participate in a hearing. On my instructions, my associate asked the registry to telephone the applicant and tell him that he would have to attend the hearing and that if he did not do so his application may be dismissed for non-appearance. It appears that he was so advised. The applicant did in fact attend the hearing on 14 December 2010 and did not, at that stage, produce any further medical evidence.
9. The hearing commenced on that day but unfortunately, due to problems with the interpreter, it had to be adjourned. It was adjourned until today, 1 February 2011. A change in the hearing time to suit the availability of counsel (from 11 am to 2.15 pm) was notified to the applicant.
10. Today (the day of the hearing) the court received a further medical certificate relating to the applicant. It was not accompanied by a request for postponement. I am advised that the applicant initially told the registry he was unable to attend the hearing and would provide a medical certificate tomorrow 2 February 2011 but was told by the registry that any medical certificate would have to be provided to the court today. He provided a medical certificate dated 31 January 2011 from the same doctor in a similar format to the earlier medical certificates. It stated that the applicant was “suffering from Viral illness, migrains (sic)” and that he was “unable to attend his normal duties or study” from 30 January 2011 to 10 February 2011 inclusive. This certificate was not received until the luncheon adjournment immediately prior to the hearing time.
11. It is apparent that the applicant seeks a further adjournment of the hearing. An adjournment is opposed by the first respondent for a number of reasons. First it is said that although the medical certificate is dated yesterday, it was not provided to the court until today and then only after that was insisted upon. It was suggested that it was incumbent on the applicant (being in possession of a medical certificate dated yesterday) to bring it to the attention of the court as soon as possible. That was not done. This was said to have occasioned expense to the first respondent because of the need for an appearance. Given the time at which the medical certificate was provided it was not possible to request any further medical certificate or to advise the applicant in time for him to attend the hearing that the medical certificate was not sufficient, if that were to be the case.
12. The respondent also contended that the Tribunal decision was not affected by jurisdictional error. I note in that respect that the only material before the court from the applicant in relation to the Tribunal decision is the original application. He did not take the opportunity to file further evidence or, more relevantly, to address the grounds on which he relies in written submissions.
13. Critically, the medical certificate does not specify, either in terms of the letter of 20 October 2010 or otherwise, the manner in which the applicant is, (if he is), unfit to participate in a hearing. The medical certificate is in the same terms as the certificate of 13 December 2010. The applicant was informed that such a certificate was insufficient and attended the hearing on 14 December 2010. The information in the latest medical certificate is not such as to satisfy me that an adjournment of the hearing is warranted on medical grounds.
14. In these circumstances, the respondent seeks an order that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules.
15. The applicant has been extended something of an indulgence by having been granted two earlier adjournments, notwithstanding the very general terms in which his initial medical certificates were expressed. However he was specifically advised that any further medical certificate must address his fitness to attend a hearing, either in person or by telephone. He has been offered the ability to participate in a hearing by telephone. He was subsequently told that a medical certificate which did not address his fitness to participate in a hearing was not sufficient and that he would need to attend the hearing, which he did on 14 December 2010. The medical certificate dated 31 January 2011 was only provided to the court shortly before the scheduled hearing time. He has not provided an acceptable explanation for his failure to appear.
16. In all the circumstances I am not satisfied that it is in the interests of the administration of justice or of the parties that there be a further adjournment of the hearing, having regard to the number of adjournments there have been, the time that has passed and the inadequacy of the medical certificate in circumstances where it was brought to the applicant’s attention that such a medical certificate would not suffice (and indeed did not suffice in December 2010). I am satisfied that the application should be dismissed on the basis contended for by the first respondent.
17. In order to allow, however, for the possibility that there is a proper explanation for the applicant’s failure to attend today that can be established by a proper medical certificate or evidence from a medical practitioner, while the application should be dismissed for non-appearance under r.13.03C(1) of the Federal Magistrates Court Rules, I also intend to make an order that the solicitors for the first respondent bring to the applicant’s attention the effect of r.16.05 of the Rules.

RECORDED : NOT TRANSCRIBED

18. The first respondent seeks costs in the sum of $5,865. In the circumstances of this case I consider that this is an appropriate amount.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 1 March 2011