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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - interlocutory application by Minister seeking summary dismissal of the judicial review application as an abuse of process - applicant failing to appear - adjournment application based on medical certificate - circumstances indicating applicant may be malingering - adjournment refused and judicial review application dismissed for non appearance.

SZDNL v Minister for Immigration [2004] FMCA 949 (29 November 2004)

SZDNL v Minister for Immigration [2004] FMCA 949 (29 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNL v MINISTER FOR IMMIGRATION
[2004] FMCA 949




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - interlocutory application by Minister seeking summary dismissal of the judicial review application as an abuse of process - applicant failing to appear - adjournment application based on medical certificate - circumstances indicating applicant may be malingering - adjournment refused and judicial review application dismissed for non appearance.




Federal Magistrates Court Rules 2001 (Cth)

Applicant:
SZDNL




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1354 of 2004




Delivered on:


29 November 2004




Delivered at:


Sydney




Hearing date:


29 November 2004




Judgment of:


Driver FM




REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent:



Mr A Markus

Australian Government Solicitor




INTERLOCUTORY ORDERS

(1) The Court directs that the name of the applicant is not to appear on the transcript of these proceedings.

(2) The Court directs that the Minister is to arrange to have these orders entered.

(3) The Court directs that the Minister is to serve on the applicant a sealed copy of these orders by ordinary pre-paid post to the applicant's last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

(4) The judicial review application filed on 10 May 2004 is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

(5) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

(6) No further application by this applicant to review the decision of the Refugee Review Tribunal made on 29 May 2000 and handed down on 20 June 2004 is to be accepted for filing, except with leave of the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1354 of 2004

SZDNL



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an interlocutory application by the respondent Minister seeking the summary dismissal of a judicial review application filed on 10 May 2004. The Minister's interlocutory application was filed on 17 August 2004. The Minister seeks the summary dismissal of the judicial review application on the basis that it is an abuse of process. The Minister's application is supported by an affidavit by Andras Markus dated 2 August 2004 and also written submissions filed on 22 November 2004.

2. Mr Markus also tendered as exhibit R2 a letter dated 19 August 2004 to the applicant at his address for service advising him of directions made by a registrar on 17 August 2004. The applicant failed to attend that directions hearing. The applicant has also failed to attend the hearing before me this afternoon of the Minister's interlocutory application. However, by letter dated 13 November 2004 and faxed to the Federal Court Registry at 3:24 am on 28 November 2004, the applicant seeks an adjournment of the hearing.

3. It is clear from that letter that the applicant was aware of the Court fixture today, although the letter refers to the time of the hearing as at 2:15pm rather than 3:15pm. I note for the record that I was hearing another matter at 2:15pm in this Court and it did not appear to me that there was any person seeking to attend another hearing in court at that time.

4. In his letter, the applicant refers to his efforts to obtain legal representation. He refers to a lack of funds to engage a barrister and says that he is organising funds from overseas and that it may take some time to obtain funds. He also says that he is waiting for more information to arrive from overseas to support his judicial review application and that the application is very important to him. Those in themselves are not reasons for an adjournment. The applicant has had since May this year to obtain whatever legal representation he wished to obtain. He has had the same period in order to provide material in support of his judicial review application. The period, since the filing of the judicial review application on 10 May 2004, has been ample for those purposes.

5. The applicant also says in his letter that he is sick and in the circumstances unable to attend the hearing. He attaches a medical certificate. Attached to the letter is a medical certificate dated 27 November 2004. It is noteworthy that although the letter says that the medical certificate is attached, the letter is dated 13 November 2004. That is about a fortnight before the medical certificate was obtained. The medical certificate is from Dr Nabil Bchary and states that the applicant is suffering from viral gastro-enteritis and is unable to attend work or school from 27 November 2004 until 29 November 2004.

6. During the course of the hearing this afternoon, I telephoned Dr Bchary and both I and Mr Markus, who appeared for the Minister, asked the doctor some questions. The doctor stated that the applicant did attend for a medical examination on Saturday, 27 November 2004 and complained of sickness. The doctor recorded a slightly elevated temperature of 38 degrees Celsius and noted that the applicant complained of tenderness to the abdomen on a physical examination.

7. On the basis of the temperature, the applicant's complaints of abdominal tenderness and the history given by the applicant, the doctor made a diagnosis of viral gastro-enteritis. The doctor stated that he was not aware that the applicant was due to attend in court today. He stated that the certificate was issued for general purposes and that, in his opinion, the applicant was unfit to travel until he had recovered from the symptoms which, in the doctor's opinion, would have ameliorated by 30 November 2004.

8. In my view, and consistent with submissions from Mr Markus on this point, there is a strong risk that the applicant is malingering. I take into account that the applicant failed to attend the directions hearing on 17 August 2004 and that he apparently prepared his letter dated 13 November 2004, approximately two weeks before he attended Dr Bchary. This leads to a strong implication that the applicant hatched a plan to avoid attending court today by reason of illness and complained of symptoms sufficient to convince Dr Bchary that he was indeed ill.

9. Dr Bchary issued his medical certificate in good faith, but the only objective evidence of illness was the applicant's slightly elevated temperature of 38 degrees. It would have been a very simple matter for the applicant to give a false history to the doctor and also to falsely complain of tenderness when his abdomen was touched. I am, in the circumstances, not persuaded that the medical certificate issued by the doctor is sufficient justification for an adjournment of today's hearing. I will, therefore, refuse the adjournment application.

10. I note there was no appearance when the applicant was called by name at 4:03pm. The matter has been called twice at 3:20pm and 4:03pm when the applicant was called by name. He has not appeared. In addition an attempt was made to contact the applicant by telephone on his mobile telephone number, but it was turned off. I am not satisfied that the applicant has advanced sufficient reason for his non attendance at court today.

11. I also note that this is the second hearing in this matter that the applicant has failed to attend. I have decided, in the circumstances, to dismiss the judicial review application for non appearance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules"). I note in that connection that consistent with earlier decisions by me I regard the applicant referred to in that rule as the applicant on the originating process, namely the judicial review application.

12. I direct that the name of the applicant is not to appear on the transcript of today's hearing. The judicial review application filed on 10 May 2004 is dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules.

13. On the issue of costs, the application having been dismissed, Mr Markus seeks an order for costs fixed in the sum of $1,600. I have no hesitation in finding that costs of that order have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,600.

14. Mr Markus also seeks an order that the applicant be prevented from filing a further judicial review application in respect of the same decision of the RRT except by leave. Given the applicant's litigation history in which he has commenced and discontinued earlier judicial review proceedings and has failed to attend on two hearings of his present judicial review application, I agree that such an order is appropriate. That order will not prevent the applicant from seeking to vacate the orders that I am making today as orders made in his absence.

15. I will order that no further application by this applicant to review the decision of the RRT made on 29 May 2000 and handed down on 20 June 2000 be accepted for filing in this Court, except by leave of the Court. I will further direct that the Minister arrange for today's orders to be entered and that the Minister serve a sealed copy of those orders on the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.



I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 December 2004
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