SZMYR v Minister for Immigration and Citizenship [2009] FCA 986

FEDERAL COURT OF AUSTRALIA

SZMYR v Minister for Immigration and Citizenship [2009] FCA 986

SZMYR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 211 of 2008

PERRAM J

10 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 211 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE OF ORDER: 10 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs. 2. Costs are assessed in the sum of $4,350. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

general division NSD 211 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE: 10 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal which was listed for hearing this morning on 10 August 2009. When the matter was listed at 10.15 am there was no appearance by the appellant. I had the matter called outside. There was still no appearance. The proceedings were adjourned until 10:30 am at which time there was still no appearance by the appellant. The matter was called once more outside. 2 The first respondent applies to have the proceedings dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) on the basis that the appellant has failed to appear. In my opinion, an order dismissing the appeal should be made. However, there are some circumstances leading up to the events of this morning which require some comment. On 14 July 2009 the appellant wrote to the District Registrar of this Court and sought a postponement of this morning's hearing. This was done by a letter which provided, in part as follows: Now I am seriously sick, have been suffering from thyroid disease. I was under treatment in Leichhardt Medical Centre, Dr Nirmala V. Yohendran, who referred me to thyroid specialist of Royal Prince Alfred Hospital, I have an appointment there on 18th of August 2009 at 9.20 am. So I am unable to attend in the Court on appeal hearing until I recover. I cordially request you to postpone this hearing. Your kind honour and consideration on my request is highly appreciated. 4 I caused a copy of that correspondence to be forwarded to the solicitors for the respondent and sought from them an indication of their attitude to that adjournment application. I was subsequently informed that the respondent opposed it. I then caused an official within the Registry to contact the appellant to inform him that the material which had been provided was insufficient to justify an adjournment. On 27 July 2009 the appellant provided to the Court a medical certificate from Dr Yohendran. That medical certificate was in the following terms: Medical Certificate. This is to certify that SZMYR is receiving medical treatment for thyroid disease and knee pain, and for the period Friday, 24 July 2009 to inclusive, he will be unfit to continue his usual occupation. This certificate was completed on 24 July 2009. 5 That letter did not satisfy me that the appellant would be unable to attend on 10 August 2009. There was no explanation of the nature of the thyroid disease referred to in the previous letter, nor was there any explanation of what his usual occupation was which could, for example, have been that of a builder. Accordingly, I directed my associate to write a further letter to the appellant which she did on 29 July 2009. That letter was in the following terms: … A request was recently received by the Appellant in this matter to adjourn the hearing listed for 10 August 2009, due to medical reasons, and accompanied by a letter from the Appellant's specialist. At his Honour's request, a medical certificate was sent to chambers by the Appellant on 27 July 2009. His Honour is of the opinion that the medical certificate, dated 24 July 2009, does not provide sufficient grounds on which to adjourn the hearing. Accordingly, his Honour would like to invite the Appellant to provide any further medical evidence he might have in support of his application to adjourn the hearing. Any such further evidence will need to make expressly clear that the Appellant is not fit to appear before the Court on 10 August 2009. His Honour would appreciate any such material being sent to chambers within 7 days. 6 It will be seen from that correspondence that the appellant was put on notice that I did not regard the medical certificate of 24 July 2009 as being a sufficient ground for adjourning the hearing. I specifically invited the appellant to put before the Court evidence that he was not able to appear this morning. On 3 August 2009, the District Registrar received from the appellant a letter which was in the following terms: … IN RESPONSE TO YOUR LETTER DATED 29-07-09. I WOULD LIKE TO INFORM YOU THAT I AM SERIOUSLY SICK. HAVE BEEN SUFFERING FROM THYRIOD DISEASE AND SEROIUSE PAIN OF RIGHT KNEE. DR, NIRMALA, Y YOHENDRAN WHO IS UNABLE TO TREAT MY THYROID DISEASE. SO SHE REFERRED ME TO ROYAL PRINCE ALFRED HOSPITAL – MY APPOINTMENT THERE ON 18-08-09. AT 9.20AM. I AM ALSO UNDER TREATMENT OF HER FOR KNEE PAIN. I SENT MEDICAL EVIDENCE WITH THIS LETTER TO SUPPORT TO ADJOURN THE HEARING. YOUR KIND CONSIDERATION IN THE REGARD IS HIGHLY APPRECIATED AND EXPECTED. PLEASE RETURN THESE MEDICAL DOCUMENTS AFTER YOUR NECESSITY FULLFILLED. … 7 That letter was accompanied by a series of documents. The first document was the medical certificate to which reference has already been made. The second document was a document entitled "Medical Imaging Request Form", which was a request by Dr Yohendran to a medical imaging company for a CT scan of the appellant's right knee. The next document which was attached was a pathology report five pages in length, dated 4 May 2009. The report has an entry "TSH" under the heading "Thyroid Profile" that indicated there was marginal elevation of TSH and included the comment: Would suggest follow-up TFT's and serum thyroid antibodies as clinically indicated. 8 I note that the pathology report was directed to Dr Yohendran and appears to have been prepared on a collection date of 29 April 2009, that is, some months ago. The next document was a pathology report, again pertaining to a collection date of 29 April 2009. There is nothing in that report, so far as I can see, which would lend support to the existence or extent of either a knee condition or of thyroid disease. I do not regard this as sufficient evidence of the appellant's inability to attend the hearing. The appellant also enclosed with his letter two prescriptions. One was for Mobic tablets, 15 milligrams, which, it was suggested, should be taken once daily with food. This prescription was dated 6 May 2009. I see nothing in that which would lend support either to the knee condition suggested or to the thyroid disease. 9 The next document was a similar prescription which appeared to be a renewal dated 24 July 2009. Nothing further needs to be said about that document. 10 There then followed a series of reports from a company called CMI Radiology which is a purveyor of nuclear medicine. There were from that company three reports dated 4 May 2009, 14 May 2009 and 7 May 2009. The report of 4 May 2009 dealt with the appellant's right knee in the following terms: Clinical History Pain There is no bony abnormality demonstrated. The joint spaces are preserved and there is no joint effusion. 11 There was no reference to the condition of the appellant's thyroid. The report of 14 May 2009 dealt with a number of topics. It made no reference to either of the appellant's knees. It dealt in some detail with the state of his liver, kidneys and spleen and finished with the general comment: Normal CT scan. The liver demonstrates a uniform pattern of attenuation. There is no definite focal renal mass lesion seen on the non-contrast, arterial phase, venous phase or delayed phase. There is no intra-hepatic binary tract dilation. The sonographic finding is therefore a normal variant. The remainder of the examination is within normal limits. No focal hepatic masses are seen. 12 I can discern in that report nothing to support the suggestion of thyroid disease or a knee condition. The final report I should refer to was the report of 7 May 2009. This report resulted from an examination which occurred on the same day. It does deal with the topic of the thyroid in the following terms. There was a coarse pattern of echogenicity throughout the thyroid lobe. Each thyroid lobe measures approximately 8.5 cc in volume. There is a 13 millimetre maximum dimension possible nodule in the left lower thyroid pole. Mildly increased vascularity is demonstrated on colour Doppler evaluation. No cervical lymphadenopathy is demonstrated. 13 There is then a comment: Possible thyroiditis. Possible left lower thyroid pole nodule. Correlation with thyroid update nuclear medicine scan suggested. Possible inter-polar right renal cortical mass. 14 Thus was the material which was sent by the appellant to the Court on 3 August 2009. I am unable to discern from that material evidence which would suggest that the appellant was unable to attend this morning on 10 August 2009. The evidence does establish that he has an appointment with a specialist on 18 August 2009, which I accept. The evidence also establishes that he has pain in his right knee and there may be something wrong with it. The evidence also establishes that a nuclear medicine scan has suggested that there might be something wrong with his thyroid. However, there is no expression of opinion before me by a medical practitioner that the appellant was unfit or unable to attend this morning. The highest the matter can be put is that there is a statement by his GP that he is unfit for his usual occupation. 15 That did not suffice in the first instance to persuade me that he was unable to attend this morning. Having indicated that, and having invited the appellant to obtain proper evidence, his failure to do so leads me not to adjourn this morning's hearing. 16 I have considered afresh whether my original decision not to grant the adjournment was appropriate. I have not changed my mind. In those circumstances I regard the appellant's non-appearance this morning as a non-appearance which is not justified on medical grounds. Accordingly, it seems to me it is appropriate to accede to the Minister's application that the appeal be dismissed, pursuant to s 25(2B)(bb)(ii) and I so dismiss the appeal with costs. 17 Mr Reilly, who appears for the Minister, read an affidavit of Rowan White sworn 10 August 2009. Mr White gives evidence that the total costs incurred by the Minister are in excess of $5,800, including a sum for counsel's fees. The Minister seeks a fixed costs order in the amount of $4,350 which is said to represent a discount on party/party costs. That seems to me to be well within the range of an appropriate costs order and, accordingly, I fix the costs to which the Minister is entitled to $4,350 pursuant to O 62, r 40C, subrule 4 of the Federal Court Rules. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.