FEDERAL COURT OF AUSTRALIA

MZWMT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1877

Applicant M100/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 157 cited

M100/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 688 cited

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

NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 cited

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

MZWMT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 370 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 his 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 Magistrate’s Court for review of the Tribunal’s decision was dismissed by Magistrate McInnis: Applicant M100/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 157. An application for leave to appeal to this Court was dismissed: M100/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 688.

3                     When the application for review came before Magistrate Riethmuller, the applicant did not appear. He had sent to the Court a medical certificate made out by Dr Novani:

“This is to state that [the applicant] has a history of Anxiety and Major Depression.

Recently his Generalized Anxiety state has deteriorated with symptoms of Sleeplessness, Headaches, Irritability and poor Concentration.

Currently due to his mental state he is unable to attend court.

In my opinion, it would be advisable to defer the court hearing for at least a month or so.”

4                     The Magistrate treated the submission of this certificate as an application for an adjournment. After referring to NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (Lindgren J) and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17, both decisions on adjournment applications based on similarly brief medical certificates, the Magistrate said:

“I am not persuaded that it is appropriate to grant an adjournment in this case on the basis of this medical certificate. This decision is made easier by the evidence of Mr Carroll [the Minister’s solicitor] who advised that on 31 March 2004 [six days before the hearing] … he had a telephone conversation with the applicant who was requesting an adjournment. He stated that he advised the applicant that an adjournment would not be agreed and that the applicant told him that he may withdraw as he was not ready. He advised the applicant that 90 per cent of the costs had been incurred in any event and he advised the applicant that he would have to convince the judge of the need for an adjournment. … I have little doubt that the applicant would have understood the thrust of what Mr Carroll said, which was to the effect that he would have to convince me of the need for an adjournment.

In these circumstances I am satisfied that the matter should proceed in the applicant’s absence ….”

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

“It appears clear to me that it amounts to an abuse of process that is an attempt to have a different court again determine substantially the same issues that were determined by McInnis FM and which were not disturbed on appeal. Such an application is clearly inappropriate.”

His Honour then dismissed the application, and “given the conduct of the matter”, ordered that the applicant be restrained from bringing further applications without first obtaining the leave of the Court.

6                     In his affidavit in support of his 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 this Court’s refusal of 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