MZWQH v Minister for Immigration
[2005] FMCA 1147
•15 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQH v MINISTER FOR IMMIGRATION | [2005] FMCA 1147 |
| MIGRATION – Application for reinstatement of application for review of Refugee Review Tribunal decision – original application dismissed due to non-appearance at hearing by the applicant – reason for previous non-attendance – whether the applicant has an arguable case – reinstatement application dismissed with costs. |
| Federal Magistrates Court Rules 2001(Cth), Order 13.03A(c) |
| NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (17 December 2003) Re Minister for Immigration and Multicultural Affairs; Ex parte Dura (2000) 168 ALR 407 SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 389 |
| Applicant: | MZWQH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1117 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 12 August 2005 |
| Date of Last Submission: | 12 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Ms E Nance |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1117 of 2004
| MZWQH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIDGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for reinstatement of the application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 June 2004. The judicial review application was dismissed by me on 10 June 2005, pursuant to Order 13.03A(c) of the Federal Magistrates Court Rules 2001(Cth), when the applicant failed to appear.
The application for reinstatement is supported by a very short affidavit sworn by the applicant and filed on the 1 June 2005. The applicant says in his affidavit that:
Due to my illness I was unable to attend the hearing and I enclose a medical certificate confirming my illness. I beg the matter to be re-heard.
The doctor issuing the medical certificate which is attached to the affidavit says that the applicant attended the NM & IG Medical Centre on 6 June 2005 and on 8 June 2005 and that:
I conclude by reason of this condition/patient’s statement he/she is/was unable to attend work/school on/from 8/6/2005 to 10/6/2005 inclusive.
There is no indication of what the applicant’s condition was or indeed if he suffered from any illness at all. The certificate is unsatisfactory. It does not address the cause of why the applicant would have been unable to attend Court on 10 June 2005. What’s more, it appears that the certificate initially related to the dates 8 June 2005 to 9 June 2005 and was subsequently changed to 10 June 2005.
The applicant did not elaborate on his evidence in Court and offered nothing further in support of his application. The respondent opposes the application for reinstatement and this day filed an Outline of Submissions supporting the same.
The law
Federal Magistrate Riethmuller in SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 389 held:
9. I accept the submissions of Mr Wee that when the applicant makes this application to reinstate his judicial review application he must demonstrate to the court:
(a) a satisfactory reason why he has failed to comply with the courts orders; and
(b) that the applicant has an arguable case.
I accept that as an accurate statement of the law.
Conclusions and findings
I am not satisfied that the applicant has provided an adequate explanation of his non-attendance at Court on 10 June 2005. I refer to the judgment of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (17 December 2003) which states at [5]-[8] as follows:
5 The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7 I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8 If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
The medical certificate in the present case, in addition to suffering the same defects, does not even indicate that the applicant suffers from any illness. In all of the circumstances, I am not satisfied that there is any adequate explanation for his non-attendance.
Finally, the applicant has not provided any basis for his claim that the Tribunal fell into jurisdictional error in making its decision. The Tribunal in essence was not satisfied that the applicant satisfied the selection criteria. It was not satisfied that he had a well-founded fear of persecution for a Convention reason. The Tribunal’s decision was grounded on its credibility findings about the applicant’s claims and evidence. “Credibility was a matter for the Tribunal par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Dura (2000) 168 ALR 407 at 67.
Accordingly I propose to dismiss the application with costs.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 15 August 2005
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