Wei Fan v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1553

FEDERAL COURT OF AUSTRALIA

Wei Fan v Minister for Immigration and Multicultural and Indigenous Affairs FCA [2003] 1553

WEI FAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1198 of 2003

WILCOX J
5 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1198 OF 2003

BETWEEN:	WEI FAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	5 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to Order 10 rule 3(2) of the Federal Court Rules.

2.The applicant, Wei Fan, pay to the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, costs in the sum of $1,500.00.

3.Any application to set aside order 1 above must be supported by an affidavit from the applicant indicating with some specificity:

(a)the nature and severity of the illness from which he claimed to have been suffering on 5 December 2003; and

(b)the nature of the jurisdictional error said to have been committed by the Migration Review Tribunal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1198 OF 2003

BETWEEN:	WEI FAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	5 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR EX TEMPORE JUDGMENT

WILCOX J:

1. This is the third occasion on which this matter has been listed for directions.  The applicant has not attended on any of those occasions.

2. The first directions hearing was held by Deputy Registrar Kavallaris on 20 November 2003.  Prior to that day, the applicant had sent to the Court a medical certificate stating the opinion of a medical practitioner that the applicant was suffering from ‘viral illness’ and would be ‘unfit for duty’ from 18 November 2003 to 20 November 2003.  Deputy Registrar Kavallaris stood the matter over for one week and directed the solicitors for the respondent to notify the applicant that the matter would be listed again on 27 November 2003 at 2.15 p.m.  They did this, by a letter dated 21 November 2003, addressed to the applicant at the address shown on his application. 

3. The matter was listed again on 27 November 2003, this time before Deputy Registrar Hedge.  Once again there was no appearance for the applicant.  The solicitors for the respondent attended and the matter was adjourned until today before me.  Apparently, no explanation was offered by the applicant for his non-attendance at that time.  No medical certificate was supplied which covered 27 November 2003.

4. In the last day or so, a further medical certificate has been received by the Court, which was obviously intended to cover today.  It was issued by a different medical practitioner and indicates the opinion of the practitioner that the applicant was suffering from severe headache and would be ‘unfit for duty’ from 3 December 2003 to 5 December 2003.

5. The applicant was aware of today's hearing because a letter was sent to him, on 1 December 2003, notifying him of the hearing.  Both the letters from the respondent’s solicitors advising of the adjournments included a statement that, if the applicant did not appear at the re-scheduled time, the solicitors were instructed to apply to have the matter dismissed with costs.

6. In the face of a medical certificate, I would ordinarily be disinclined to take the step of dismissing a matter.  However, it is difficult to resist the view that the applicant is playing with the Court.  Both medical certificates are notable for their lack of specificity.  Presumably, the certificate covering today merely reflects claims by the applicant as recounted to the doctor.  I think if the applicant were serious about proceeding in the matter, he would have found it possible to attend on at least one of the occasions.

7. Under the circumstances, I think it is appropriate to accede to the application made by Ms Crowley on behalf of the respondent for summary dismissal of the proceeding under Order 10 rule 3(2) of the Federal Court Rules.  I propose to take that course.

8. Ms Crowley requests that, rather than make a general order for costs, I order payment of a specified amount.  She suggests the sum of $1500.00.  It seems to me that is a reasonable sum, having regard to the fact that this is the third directions hearing.  I propose to so order.

9. It is open to an applicant whose proceeding has been dismissed under Order 10 rule 3(2) to apply to set aside the dismissal order.  However, if that course is proposed to be taken in the present case, any application must be supported by an affidavit from the applicant which indicates the nature and severity of the disability from which he claims to have been suffering today and also the nature of the jurisdictional error said to have been committed by the Migration Review Tribunal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Wilcox.

Associate:

Dated:             22 December 2003

There was no appearance by the applicant.
Solicitor for the respondent:	Clayton Utz
Date of hearing:	5 December 2003
Date of judgment:	5 December 2003