SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97

FEDERAL COURT OF AUSTRALIA

SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97

MIGRATION – application for leave to set aside judgment – explanation for absence from hearing unsatisfactory – whether applicant has arguable case – Tribunal addressed all important claims – motion dismissed. Migration Act 1958 (Cth) Federal Court Rules O 52 r 38A

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 197 ALR 389 cited SZACX V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 931 OF 2003 BEAUMONT J 3 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 931 OF 2003

BETWEEN: SZACX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 3 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion is dismissed, with costs. 2. The time for filing any appellate process shall not commence to run until 17 February 2004. 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 N 931 OF 2003

BETWEEN: SZACX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 3 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Beaumont J:

iNTRODUCTION 1 On 11 November 2002, the Refugee Review Tribunal ("the RRT") affirmed the decision of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") not to grant a protection visa to the appellant. 2 On 2 January 2003, the appellant applied to the Federal Magistrates Court for judicial review of the RRT's decision on the following grounds: 'The RRT failed to act on the proper principles into consideration of the merits of case. The RRT did not act in good faith in making decision. The decision involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision.' 3 On 18 July 2003, Raphael FM dismissed the application. 4 On 6 August 2003, the appellant filed a notice of appeal to this Court on the following grounds: '1. The Hon. Judge has ignored the merits of my claim and did not act in good faith in regards to the claim. 2. I was deprived of natural justice by the RRT and the court. 3. The procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed. 4. The decisions from the RRT and the single judge ...involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the tribunal.' 5 The appeal was fixed for hearing before me on 13 November 2003. On 12 November 2003, the appellant sent a fax to the Court, stating that he could not attend Court on the following day and relying on a medical certificate referring to 'pain left chest'. 6 The appellant did not appear on 13 November 2003, and the respondent Minister opposed any adjournment, seeking dismissal of the application. 7 On 13 November 2003, the respondent called Ms Asimis, solicitor, who had spoken to the appellant's medical practitioner and gave this evidence: 'MR REILLY: Can you tell the court the conversation that ensued?---Yes, the doctor answered the telephone and I told him who I was and I asked if he'd written a medical certificate recently for the appellant and he had to leave and go and look up the file and then he came back and he said yes he had and he said he told me lies and I said, well I'm a solicitor for the Minister and we have a hearing today and he has submitted the medical certificate to say that he's not fit to attend the hearing and he said, "Yes, he cheated me. He has told me lies. He told me that [he] was only wanting the medical certificate to get out of work. He wanted it for two weeks. He said that he was lifting heavy things at work. He worked in a kitchen and if I had known that it was a medical certificate for court I would never have given it to him. I'm very sorry and if the judge wants to ring me he can and I will tell him this".' 8 Ms Asimis went on to say that, after speaking to the appellant's doctor, she telephoned the appellant, and then gave this evidence: '... I spoke to the doctor at about quarter past nine, I think, and I didn't speak to the appellant until about 10 to 11. Where does the appellant live?---Strawberry Hills, I think. I rang him on his mobile number and he answered and I told him that I had spoken to his doctor this morning and that he had said that he was fit enough to go to court today and that if that's the case we would like him to come to court and could he come to court. It was very important that he come to court and he said that he was in bed and I said well we're going to oppose your application to have the hearing adjourned and if we're successful we'll seek to have your application dismissed and we may seek to have an order that you pay the Minister's costs, so it's very important if you can come today, can you come, and he said, "What court number is it?", and I said, "Court 23D". I said, "So you're coming, are you? Be there at 11.30". He said, "No, I'm in bed". I said, "Well you understand that we'll be seeking to have you pay the Minister's costs if we get the application dismissed and he said yes".' 9 Ms Asimis later gave this evidence: 'HIS HONOUR: Can I just go back to your conversation with the doctor? The certificate says pain left chest you remember?---Yes. The doctor said to you that his concern was that he'd be lifting things at work?---Yes. That's as I remember it?---Yes. Did you refer to these words "pain left chest" to the doctor?---I asked the doctor what the diagnosis was and he said it was muscular skeletal pain and that the [appellant] – his job involved lifting things at work. He worked in a kitchen. It think he said lifting pots and the [appellant] wanted to get two weeks off work because he had this pain and he didn't want to be lifting things at work.' 10 The respondent then applied for dismissal of the appeal pursuant to O 52 r 38A of the Federal Court Rules, which provides: '(1) If a party is absent when an appeal is called on for hearing, the Court may: (a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or (b) adjourn the hearing; or (c) if the absent party is an appellant or cross-appellant, dismiss the appeal or cross-appeal; or (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If an order is made under paragraph (1) (c) to dismiss an appeal or cross-appeal, or an order is made after the hearing proceeds under paragraph (1) (d), the Court may, on motion by the party against whom the order is made: (a) set aside or vary the order; and (b) give directions for the further conduct of the appeal.' 11 I made the order sought by the respondent.