SZIQR v Minister for Immigration and Anor (No.2)

[2006] FMCA 1677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 1677

MIGRATION – Refugee – application for reinstatement – applicant did not appear – application dismissed.

Federal Magistrates Court Rules 2001, r.16.05

Applicant: SZIQR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1060 of 2006

Judgment of: Nicholls FM

Hearing date: 9 November 2006

Date of last submission: 13 September 2006

Delivered at: Sydney

Delivered on: 9 November 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. Mansour (Solicitor)

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application made on 13 September 2006 is dismissed.

2. The applicant pay the respondent Minister’s costs, being costs in the matter of the application made on 13 September 2006, set in the amount of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1060 of 2006

SZIQR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me the judgment that I gave in this matter relating to a previous application (SZIQR v Minister for Immigration & Anor [2006] FMCA 1193) and consequent orders delivered on 14 August 2006. That judgment dealt with an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) relating to the applicant before the Court now. I also have before me an application filed in this Court by the applicant on 13 September 2006, seeking to set aside the orders made on 14 August 2006.

2. I have on the Court’s file a letter to the applicant, sent to both his residential address, and address for service, advising him that the application for the reinstatement of his previous application had been listed for 10:15 a.m. on 9 November 2006 at Court 7A, John Maddison Tower, today’s date.  At the appointed time, the matter was called outside the Court.  There was no appearance by the applicant.  Nor was there any appearance over 20 minutes later.

3. On 8 November 2006 the Court received, by facsimile transmission, what, on its face, appears to be a medical certificate from a Dr. S. N. Khandhar, which stated that the doctor examined the applicant on 7 November 2006, and certified that he was suffering from “acute lumbago”, and that he would be unfit for work/study, up to and including 7 November 2006 to 30 November 2006.  This certificate appears to be identical (other than the reference to relevant dates) to a certificate provided, again by facsimile transmission, on 8 August 2006 to this Court in relation to an explanation as to why the applicant was unable to appear at the hearing of the matter relating to the original application on 14 August 2006.  The coincidence of the two certificates includes the use of exactly the same language, the same spelling mistakes, the same punctuation and the same gaps in presentation (see in particular the gap between “lumbago” and “under”).

4. Ms. Mansour, who appeared for the Minister, sought that the applicant’s application be dismissed on the basis that there was no merit to the application and that the applicant is a repeat litigant who has (on several occasions) not attended Court for medical reasons and has provided medical certificates on various occasions.  The respondent submitted that when his application was dismissed on 14 August 2006 the applicant had provided two medical certificates which were considered in making the orders on that day.  She noted that he was given an opportunity to appear via telephone and he refused.  Further, she argued that the applicant’s previous proceedings show that there is no reasonable cause of action, and that it is clearly an abuse of the Court’s process.  I accept the submissions made by the Minister’s representative today given that the originating application, which the applicant apparently seeks to revive, was dismissed both as showing no reasonable cause of action and as an abuse of the processes of the Court.

5. While no formal application for an adjournment is before the Court, even treating this latest communication (the medical certificate sent by facsimile) as a request for an adjournment, that request should be refused for reasons that mirror the reasons as to why the matter did not proceed on the previous occasion on 14 August 2006.  That is, in circumstances where the medical certificate provided now is not stated to address attendance and does not satisfactorily explain why the applicant (notwithstanding his medical condition) could not have sent a representative or even participated by telephone (an option already made known to him previously).

6. The applicant is seeking to revive an application made to this Court which has already been found not to disclose any reasonable basis for its grounds of complaint and which has been found to be an abuse of process.  Nothing further has been put by the applicant before the Court.  To allow the matter to continue beyond today in all the circumstances would be another exercise in futility in all the circumstances.  On that basis I agree with the Minister’s submissions and the application made on 13 September 2006 is dismissed with costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date:  20 November 2006