MZXCN v Minister for Immigration
[2007] FMCA 573
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXCN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 573 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – no arguable case raised – application dismissed – vexatious litigant – abuse of process – no reasonable prospect of success – no proceedings without leave. |
| Migration Act 1958 Federal Magistrates Court Rules 2001 rr.44.11(a), 44.12, 13.10, 13.03A(c), 13.11 |
SZAUU v Minister for Immigration [2004] FMCA 663
SZAUU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 85
SZAUU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA Trans 482
MZXCN v Minister for Immigration and Multicultural Affairs (26 October 2006, unreported)
MZXCN v Minister for Immigration and Multicultural Affairs [2005] FCA 1889
MZXCN v Minister for Immigration & Multicultural Affairs [2006] HCA Trans 686
| Applicant: | MZXCN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 859 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 10 April 2007 |
| Date of last submission: | 10 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
| The applicant appeared in person |
| Solicitor for the Respondent: | Ms. B. Griffin of Australian Government Solicitor |
ORDERS
The application is dismissed in accordance with Rules 13.10(b) and (c), and 44.12(1)(a).
No further application for review of the decision of the Refugee Review Tribunal signed on 20 February 2007, reference N97/007474, or review of the decision of the delegate of the first respondent dated 21 April 1998, or for review of any other administrative decision or action by any person concerning the visa application which was considered in that decision, shall be accepted for filing without prior leave of the Court.
Any proceeding instituted by the applicant relating to the above may not be continued without the leave of the Court.
The applicant is to pay the costs of the first respondent fixed in the amount of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 859 of 2007
| MZXCN |
Applicant
And
| MINSTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The Respondents allege that the application does not raise an arguable case and ask that it be dismissed under Rule 44.12 (1) (a).
The Court ordered pursuant to Rule 44.11(a) that there be an immediate hearing under Rule 44.12 to determine if the application raises an arguable case.
The applicant was invited to put submissions to the Court in support of his application, but he declined to do so. The applicant sought an adjournment of the matter which was refused, as the applicant had received a letter from the Australian Government Solicitor dated
19 March 2007 cautioning him that the Minister may file a response setting out grounds why his case should be dismissed at a show cause hearing, which may be held at the first directions hearing. The letter urged the applicant to obtain legal advice; he failed to do so.
The first respondent put submissions supporting the application for dismissal and referred to decisions of the Court in SZAUU v Minister for Immigration [2004] FMCA 663; the decision of the Federal Court of Australia in SZAUU v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FCA 85; the decision of the High Court in SZAUU v Minister for Immigration& Multicultural & Indigenous Affairs [2005] HCA Trans 482; the decision of this Court in MZXCN v Minister for Immigration & Multicultural & Indigenous Affairs on 26 October 2005 (MLG 1059/2005); the decision of the Federal Court of Australia in MZXCN v Minister for Immigration and Multicultural Affairs [2005] FCA 1889; and the decision of the High Court in MZXCN v Minister for Immigration and Multicultural Affairs [2006] HCA Trans 686.
The applicant instituted proceedings initially in the Sydney registry of the Court and was assigned the pseudonym “SZAUU”. The applicant instituted proceedings in the Victorian registry of the Court also and was assigned the pseudonym “MZXCN”.
The applicant’s application for a protection visa was refused by a delegate of the Minister on 21 April 1998. A subsequent application for review was heard and determined by the Refugee Review Tribunal on 18 November 1999 which affirmed the decision of the delegate not to grant a protection visa.
On 20 June 2003 the applicant filed an application for review in this Court. That application was dealt with by Baumann FM in SZAUU v Minister for Immigration [2004] FMCA 663 who dismissed the application by decision dated 9 September 2004. The applicant appealed against that decision to the Federal Court of Australia. Justice Madgwick dismissed that appeal on 4 February 2005 in SZAUU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 85.
The applicant sought special leave to appeal to the High Court in the Sydney registry of that Court, which was refused on 4 August 2005 in SZAUU v Minister for Immigration and Multicultural [2005] HCA Trans 482.
The applicant filed an application with the Victorian District Registry of the Court on 29 August 2005. Federal Magistrate Connolly dismissed that application on 26 October 2005 (MLG 1059/2005) under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 as the applicant failed to appear.
The applicant then lodged an appeal in the Victorian District Registry of the Federal Court of Australia on 15 November 2005. The appeal was dismissed by Justice North on 7 November 2005 in MZXCN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1889.
The applicant then sought special leave to appeal to the High Court, which failed on the substantive merits and was dismissed on
14 December 2006: MZXCN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 686.
On 9 January 2007 the applicant applied again to the Refugee Review Tribunal for review of the delegate’s decision of 21 April 1998. On
20 February 2007 the Tribunal decided that as it had “already discharged its functions under the Act to review the delegate’s decision the Tribunal no longer had jurisdiction in relation to that decision”.
On 14 March 2007 the applicant filed an application for judicial review by this Court of the decision of the Refugee Review Tribunal dated 20 February 2007.
The Court finds that the Tribunal was correct in reaching the conclusion that it no longer has jurisdiction in relation to the matter.
The first respondent submits that the application has not raised an arguable case for the relief claimed and seeks that the application be dismissed pursuant to Rule 44.12(1)(a).
The Court finds that the application does not raise an arguable case and dismisses it pursuant to Rule 44.12(1)(a).
The Court finds also that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and dismisses it pursuant to Rule 13.10(a).
The applicant has filed three applications with this Court seeking to review the decisions of the Refugee Review Tribunal which affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant had lodged two appeals in the Federal Court of Australia relating to the matter. The applicant has twice sought special leave of the High Court in relation to the matter.
The Court is satisfied pursuant to Rule 13.11 that the applicant has instituted a vexatious proceeding in this Court and that the applicant has habitually, persistently and without reasonable grounds instituted proceedings in the Court or other Australian Courts.
The Court has therefore ordered on its own motion that the applicant may not institute a proceeding without leave of the Court and that any proceeding instituted by the applicant may not be continued without leave of the Court.
The Court is satisfied pursuant to Rule 13.10(c) that the current proceeding is an abuse of process of the Court and orders that the application be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 17 April 2007
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