MZWMI v Minister for Immigration
[2005] FMCA 810
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWMI v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 810 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal to grant a protection visa – summary dismissal – abuse of process – non-appearance – medical certificate – refusal of adjournment. |
| Migration Act 1958 (Cth) |
| Applicants M99/2003 v Minister for Immigration [2004] FMCA 156 M99/2003 v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCA 687 NAKX v Minister for Immigration [2003] FCA 1559 NALM v Minister for Immigration [2004] FCAFC 17 |
| Applicant: | MZWMI |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOTHER |
| File Number: | MLG 759 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2005 |
REPRESENTATION
| Counsel for the Respondent: | Ms J.K. Macdonnell |
ORDERS
The applicants’ application for an adjournment be refused.
The applicants’ application filed 16 June 2004 be dismissed.
The applicants are hereby restrained from bringing a further application to review the decision of the Refugee Review Tribunal dated 26 June 1997 except by leave of the court.
The applicant pay the respondent's costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 759 of 2004
| MZWMI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOTHER |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Minister seeks to have the action dismissed summarily by way of an application for summary dismissal that was filed on 21 March 2005.
This is a case where the applicant has previously had a hearing before McInnis FM in which McInnis FM refused to issue an order nisi in a matter dealing with substantially the same issues (it was remitted from the High Court to the Federal Court and subsequently this court). That matter is recorded as Applicants M99/2003 v Minister for Immigration, which is contained in file number MZ 1486 of 2003. The judgment of McInnis FM is available on the internet as [2004] FMCA 156.
The matter was obviously given careful consideration by his Honour on that occasion. His Honour's reasons run for 13 pages discussing the nature of the matter in some detail. There is, therefore, on that basis alone a strong prima facie case that this application is without merit and ought to be dismissed as an abuse of process even if there is not some form of estoppel flowing from the earlier decision by McInnis FM.
The situation is made stronger by the fact that the decision of McInnis FM was appealed to the Federal Court and dealt with by Crennan J who declined to give the applicant leave to appeal. That matter is reported as M99/2003 v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCA 687.
The applicant has not attended today despite being called, but has faxed through a letter from a medical practitioner in the following terms:
The applicant is suffering from a medical condition and is unfit for work/court from 5/4/2005 to 6/4/2005.
I have been referred to two decisions of the Federal Court of Australia dealing with medical certificates in matters of this nature. The first is NAKX v Minister for Immigration [2003] FCA 1559, a decision of Lindgren J. In that case at paragraphs 5 to 9 his Honour discusses the details of the medical certificates relied upon, which were more fulsome than the medical certificate in this case. His Honour pointed out that the certificates in that case did not address the critical question of whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing. The same criticism is equally valid with the medical certificate in this case. Similarly, it appears that the sufferer was able to attend upon the medical practitioner and it is therefore hard to understand why they would not have been able to attend the court.
For reasons similar to those of Lindgren J in that case, I am similarly of the view that the adjournment ought to be refused.
I have also been referred to a decision of the Full Court of the Federal Court in NALM v Minister for Immigration [2004] FCAFC 17. The medical certificates in that case were similarly brief and again did not satisfy the court that an adjournment was warranted.
I have been provided with some evidence from the solicitor for the Minister as to a telephone conversation with a person believed to be associated with the applicant. I am not satisfied that that assists me in this particular determination in this case. However, on the material before me I am not satisfied that an adjournment is warranted and proceed to hear the application for summary dismissal.
It appears clear that the issues sought to be litigated in this case are substantially the same as the issues already litigated before his Honour McInnis FM. It is not an appropriate use of the court process, if one fails to obtain an order nisi originally, and then fails in an appeal, to simply commence proceedings again in the hope of having the matter heard by a different Federal Magistrate. If that was appropriate proceedings would never come to an end. In the circumstances I therefore find that this matter is an abuse of the court process and that the appropriate course to be adopted is to summarily dismiss the matter.
I therefore make orders that the matter be dismissed.
In this case I am asked also to make an order restraining the applicant from bringing further proceedings with respect to the RRT decision without first obtaining the leave of the court. Given the circumstances in which this application has been brought, it appears to me that there is some purpose to be served by such an order and it is supported by the finding I have made that these proceedings are an abuse of process. In the circumstances I make an order in the terms sought restraining the applicant from bringing further proceedings with respect to this RRT decision except by leave of the court.
I see no reason why the applicant ought not to pay the respondent's costs of these proceedings, and having regard to the history of the matter I find that the sum of $5000.00 is a reasonable estimate of the costs. I will order that the applicant pay the respondent minister's costs fixed in the sum of $5000.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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