AZAES v Minister For Immigration and Anor (No.2)

[2014] FCCA 2648

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAES v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2648

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal – applicant fails to appear on appointed day – application dismissed in previous hearing – unrepresented applicant files Application in a Case seeking (in error) an order that the decision of RRT be quashed rather than order that order for dismissal be set aside – application in a Case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth)

Cases cited:

AZAES v Minister for Immigration and Anor [2014] FCCA 2326

Applicant: AZAES

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 125 of 2014

Judgment of: Judge Simpson

Hearing date: 15 October 2014

Date of Last Submission: 15 October 2014

Delivered at: Adelaide

Delivered on: 15 October 2014 (ex tempore)

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondents: Ms Deegan of the Australian Government Solicitors

ORDERS

1. The Application in a Case filed by the applicant on 1 October 2014 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of FIVE HUNDRED DOLLARS ($500.00).

3. The applicant not be permitted to file any further Application in this Court, in these proceedings, without first paying the first respondent’s costs that have been awarded today.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 125 of 2014

AZAES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons from transcript)

1. I have before me an Application in a Case in which the applicant says that he seeks an order “to squash decision of MRT”.  It is supported by an affidavit in which he says:

   “I was unable to attend hearing because I was – did not know the Court date.  I came on the hearing date given on first hearing, but it might be my mistake and I might have noted down wrong date.  I went to Court for hearing and was being advised my Court date is tomorrow.  I was sick on my hearing.  I already gave my sick certificate.  Please give me a hearing so I can fight my case.”

2. Although the Application in a Case seeks the quashing of the decision of the Migration Review Tribunal (“the MRT”), I am going to treat the application instead as an application to set aside the orders that I made on 3 September 2014 at which time I made an order that the application be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

3. The affidavit that I have mentioned, and that was filed on 1 October 2014, makes it clear that the applicant is really seeking an opportunity to argue the case and, therefore, would be seeking an order that the earlier orders be set aside. 

4. Earlier today the applicant’s name has been called three times, but he has not appeared today. 

5. On the earlier occasion when I made orders (ie the orders of 3 September 2014), the applicant had failed to appear. An order was made that the application be dismissed pursuant to r.16.01, and reasons were given.[1] 

   [1]     AZAES v Minister for Immigration and Anor [2014] FCCA 2326.

6. The order that I made that day was that the application for an adjournment be refused as the applicant had failed to appear.  The Court attempted to contact the applicant by telephone, as we have done today.  He was uncontactable on the telephone. 

7. The applicant had sent to the Court a document that purported to be a certificate of sickness from Dr Stuart Parnham concerning the applicant.  The doctor said in the document:

   “In my opinion he will be unfit for his normal work/studies from 3 September to 5 September 2014 inclusive.”

8. The document was left at the Registry.  I made the point on that occasion that the surgery that the applicant went to get the medical certificate was at Hindmarsh Square, which is in very close proximity to this Court.  The applicant was living at Holden Hill, which is many kilometres from the part of the city that Dr Parnham has his practice.  I concluded that the applicant, on 3 September 2014, had travelled from Holden Hill, attended the doctor at Hindmarsh Square, then brought the certificate down here to the Court, and then went back home to, presumably, Holden Hill.  So a lot of travelling that he was apparently able to undertake.  In my view, it would not have been difficult for him to have attended Court.

9. He has not attended Court today, and there is no explanation as to why he has not attended. 

10. It is appalling that there are presently so many applicants such as this applicant who fail to attend Court on the appointed day, possibly to simply put off the conclusion of the litigation, which, in the case of many applicants may work to their advantage.  It is a waste of Court’s time, and results in increased costs of the respondent’s solicitors.

11. In the circumstances of this case, I propose to make an order that the applicant pay the first respondent’s costs fixed in the sum of $500, and I make a further order that the applicant not be permitted to file any further application in this Court in these proceedings without first paying the first respondents the costs that I have today awarded. 

12. There will be an order that the Application in a Case of 1 October 2014 be dismissed.

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

Associate: 

Date:  20 November 2014