A103 of 2003 v Minister for Immigration

[2008] FMCA 1412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A103 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1412

MIGRATION – RRT decision – second application to Tribunal after unsuccessful judicial review – Tribunal declined jurisdiction – application under r.16.05 to set aside previous orders dismissing matter under r.13.03 for non-attendance at a hearing – applicant’s request to appear by telephone refused – application for reinstatement refused.

Federal Magistrates Act 1999 (Cth), s.69
Federal Magistrates Court Rules 2001 (Cth), rr.13.03A, 16.05
Migration Act 1958 (Cth)

Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 584
Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 313
Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 634
Applicant A103 of 2003 v Minister for Immigration [2006] FMCA 1470
Applicant A103 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1757
Applicant A103 of 2003 v Minister for Immigration & Multicultural Affairs [2007] HCATrans 579
SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175
SZCKX v Minister for Immigration & Citizenship [2008] FCA 526

Applicant: APPLICANT A103 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1948 of 2008

Judgment of: Smith FM

Hearing date: 30 September 2008

Delivered at: Sydney

Delivered on: 30 September 2008

REPRESENTATION

Counsel for the Applicant: No Appearance

Counsel for the First Respondent: Ms M Palmer

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 19 August 2008 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $500.

3. Direct that no further application for review of the decisions of the Refugee Review Tribunal handed down on 29 January 2003 or 30 May 2008, or for review of the decision of the delegate of the first respondent dated 30 January 2002, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 28 September 2001, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1948 of 2008

APPLICANT A103 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive application in this matter is an application filed on 29 July 2008, seeking judicial review under s.476 of Migration Act in respect of a decision of the Refugee Review Tribunal dated 30 May 2008.

2. In that decision, the Tribunal declined to entertain an application for review which had been made to it by the applicant on 14 May 2008.  As the Tribunal pointed out in its statement of reasons, the applicant had previously applied to the Tribunal for review of the same decision of a delegate, which had been made on 30 January 2002.  The delegate had refused to grant the applicant a protection visa. 

3. The present Tribunal pointed out that the applicant had sought judicial review of the first Tribunal's decision, and that this had been unsuccessful in the Federal Court, in the Full Federal Court, and on a special leave application to the High Court (see Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 584; Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 313; Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 634).

4. The applicant had then started a second round of unsuccessful litigation in this Court, in the Federal Court, and in a second special leave application (see Applicant A103 of 2003 v Minister for Immigration [2006] FMCA 1470; Applicant A103 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1757; Applicant A103 of 2003 v Minister for Immigration & Multicultural Affairs [2007] HCATrans 579).

5. In the Tribunal's opinion, the Migration Act gave it no jurisdiction to entertain a second application for review of the same decision of a delegate. In that respect, in my opinion, it was plainly correct. The established line of authority supporting this opinion is binding on the Tribunal as on me, and was recently followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175. The present substantive application for review, therefore, has no prospect of success, plainly, and should also be characterised as an abuse of process.

6. At the First Court Date of the substantive application on 19 August 2008, there was no appearance by or on behalf of the applicant. However, the Court had received a facsimile requesting that the hearing be conducted on a mobile phone to the applicant, because he was living in Griffith. I refused to allow such an appearance. In my opinion, it is doubtful whether s.69(3)(b) of the Federal Magistrates Act 1999 (Cth) permits this procedure, and in the circumstances of the present case it would be plainly inappropriate, even if I could be confident as to the identity of the person at the end of the telephone.

7. I therefore dismissed the application under r.13.03A(c), for absence from the hearing and ordered costs. I also ordered the first respondent to notify the applicant of my orders and of his right to apply to set aside under r.16.05(2)(a).

8. Such an application was then lodged by the applicant on 8 September 2008.  It is supported by an affidavit which does not advance the merits of the matter at all. 

9. The interlocutory application was clearly made returnable today.  However, there is no appearance by or on behalf of the applicant.  The Minister invites the Court to determine the application in the absence of the applicant, and I think it appropriate to do that. 

10. In my opinion, it would be futile to set aside my previous orders, even if I should have allowed the applicant previously to attend by mobile telephone connection.  As I have indicated above, the present originating application which, in effect, seeks mandamus against the Tribunal, is doomed to fail, and it would be futile to reinstate it.

11. Given the litigation history of this applicant, I am concerned that he has engaged in strategies to use unmeritorious litigation as a means of protracting his stay in Australia.  I therefore propose to order the Registry not to accept any further application by this applicant in respect of his protection visa matter, without first obtaining the leave of the Court.  To obtain that leave, he will have to attend Court in person before me and point to the merits of his proposed application. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  10 October 2008