FEDERAL COURT OF AUSTRALIA

MZWMI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1876

Applicant M99/2003 v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FMCA 156 cited

M99/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 687 cited

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 cited

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

MZWMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 369 OF 2005

SUNDBERG J

23 NOVEMBER 2005

MELBOURNE

APPLICATION FOR LEAVE TO APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

APPLICATION FOR LEAVE TO APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from the decision of Magistrate Riethmuller refusing to grant the applicant an adjournment and thereafter dismissing her application for review of the Refugee Review Tribunal’s decision affirming the Minister’s delegate’s refusal of a protection visa.

2                     The applicant’s earlier application to the Federal Magistrates Court for review of the Tribunal’s decision was dismissed by Magistrate McInnis: Applicant M99/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 156. An application for leave to appeal to this Court was dismissed: M99/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 687.

3                     When the application for review came before Magistrate Riethmuller, the applicant did not appear. She had sent to the Court a medical certificate 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.”

4                     The Magistrate treated the submission of this certificate as an application for an adjournment. His Honour referred to NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and said:

“In that case at paragraphs 5 to 9 Lindgren J 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.”

5                     The Magistrate had earlier referred to the proceedings before Magistrate McInnis and the unsuccessful application for leave to appeal to the Court and later said:

“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.”

His Honour then dismissed the application, and “given the circumstances in which his application has been brought”, ordered that the applicant be restrained from bringing further applications without first obtaining the leave of the Court.

6                     In her affidavit in support of the application for leave to appeal the applicant says:

“5.       This case was listed for hearing on 6 April 2005. I sent the medical certificate on 5 April 2005 that I was sick and unable to come to the Court for hearing.

6.                  The federal magistrate Riethmuller dismissed my application with costs. He did not consider my medical certificate and my sickness. Therefore the magistrate erred in law ….”

As appears from [3] and [4] the assertion that the Magistrate did not consider the medical certificate is baseless.

7                     Mr Fernandez, who appeared for the applicant, made submissions directed to what he called the Anshun issue. I do not accept his submission that the issues dealt with on the earlier occasions were different from those before Magistrate Riethmuller.

8                     The decision of the Magistrate to refuse an adjournment and to dismiss the application as an abuse of process in the light of the dismissal by Magistrate McInnis of the earlier application, and the unsuccessful application for leave to appeal from the Magistrate’s decision, are not attended by sufficient doubt to warrant reconsideration on appeal. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The application for leave to appeal is dismissed with costs.

Associate:

Dated:              20 December 2005