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

[2014] FCCA 3161

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 3161

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal previously made – application dismissed for non-attendance – Applicant filing Application in a Case to have order dismissing set aside but fails to attend hearing of Application in a Case – Application in a Case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05

Migration Act 1958 (Cth)

Singh v Minister for Immigration & Anor [2014] FCCA 1747

Applicant: PARAM VIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 342 of 2013

Judgment of: Judge Simpson

Hearing date: 2 September 2014

Date of Last Submission: 2 September 2014

Delivered at: Adelaide

Delivered on: 2 September 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application in a Case filed on 18 August 2014 by the Applicant is dismissed.

2. The Applicant do pay the First Respondent’s costs fixed in the sum of SEVEN HUNDRED AND FIFTY DOLLARS ($750).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 342 of 2013

PARAM VIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an Application in a Case filed by an Applicant by the name of Param Vir Singh.  The Application in a Case seeks the following order:

   “To squash [sic] decision of MRT.”

   The Application is said to be supported by an affidavit of the Applicant dated 18 August.  That affidavit states:

   “I was unable to attend hearing because I was sick.  I want to appear in court     and present my arguments.”

   The affidavit then goes on to deal with a different application, namely, his application to have a decision of the Migration Review Tribunal set aside. 

2. It is not clear to me what the Applicant in the Application in a Case is really seeking.  He cannot seek an order in the Application in a Case for the decision of the MRT to be quashed.  He needs to do that in relation to his earlier application; the earlier application being an application that was dismissed by me on the basis that the Applicant failed to appear. 

3. I gave reasons for that decision.  They are to be found in the case of Singh v Minister for Immigration & Anor [2014] FCCA 1747. Those reasons identify that this particular Applicant regularly failed to appear before the Tribunal and the Court, and instead sent sickness certificates, generally not a sickness certificate from a medical practitioner, but instead, a physiotherapist, who is of course not a medical practitioner. He sends a certificate, and then does not appear at the Court or the Tribunal.

4. In relation to this Application in a Case that is before me today, the Applicant has sent to the Court – or somebody has sent to the Court – a document described as a ‘Sick Leave Certificate’.  It is dated with today’s date, 1 September 2014, it has the patient’s name as Param Vir Singh, that is, the Applicant.  It says that he is unfit for work from 2 September 2014 to 3 September 2014.  The comment is that there is low back pain.  It contains what seems to be a signature.  The name of the physiotherapist is written, but is illegible.  It may be ‘Sina’, but, as I say, it is not clear.

5. On the last occasion that this Applicant was before me, or rather, one of his matters was before me, he did a similar thing using a certificate from a non-medical practitioner, and then just did not turn up.  I gave reasons for the orders that I made on that earlier occasion, and those reasons were sent to the Applicant at his given address: Unit 3, 6A, Grayson Street, Kilkenny.  In those reasons, I said this:

   “I do not consider the sick leave certificate to be a document that can be relied upon.  At best, it is a sickness certificate of a physiotherapist, not a medical practitioner.  I would have thought that the Applicant could have provided much more reliable evidence of his alleged illness that he says prevents him from attending Court.  He could have sworn an affidavit explaining exactly what his condition is, and to seek that the Court adjourn the matter to another date more suitable to him and the Court.

   The Applicant should have done all possible to have made himself available to appear by telephone this afternoon.  He should, in my view, have contacted the Court to find out what the Court wanted to do to accommodate his inability to attend Court.  I can only speculate on his reasons for not doing so.  It may well be that what the Applicant is simply trying to do is to delay the hearing of this matter, and if that is the case then it would be a most serious matter.”

6. The Applicant was sent a copy of my reasons which included those comments.

7. He has not made himself available by telephone today.  My Associate has rung him at the telephone number that is on his Application in a Case, namely, 0424 257 833, but there has been no response.  The phone call has gone through to MessageBank. 

8. The Applicant has not contacted the Court to find out what could be done to accommodate his alleged bad back and the problem that he has with that.  He has done nothing. 

9. The Applicant’s behaviour in getting the medical certificate yesterday and sending it in to the Court, and doing nothing to find out from the Court how he could appear by telephone on the date set for the hearing, namely, today at 10.00am, is contemptuous behaviour.  He has not done any of the things that I believe would have been appropriate courses for him to take if he was genuinely ill. 

10. I propose to dismiss the Application in a Case.  It is not an application that clearly indicates that what he wants to do is to have the judgment that I made on the last occasion set aside on the basis that he was not present when I made the decision that I did.

11. The Applicant could have, but has not in my view, made an application relying on Federal Circuit Court Rule 16.05.  That rule provides that the Court may vary or set aside its judgment or order before it has been entered.  It goes on to say that the Court may vary or set aside its judgment or order after it has been entered if the order is made in the absence of a party.  This Applicant seems to understand that if he is absent from the Court, then the Court may set aside the judgment.  If this Application in a Case that has been filed is truly an application pursuant to that rule, then I decline to make an order setting aside my judgment and orders that were handed down and made on 25 July 2014. 

12. If the Applicant again files an Application in a Case in these proceedings, I will consider it an abuse of process unless the Application in a Case is supported by an affidavit of the persons who signed the sick leave certificates dated 1 September 2014 and 24 July 2014, explaining why it was considered that the Applicant was unfit. 

13. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 6 May 2015