S1747 of 2003 v Minister for Immigration

[2006] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1747 of 2003 v MINISTER FOR IMMIGRATION [2006] FMCA 35

MIGRATION – Where the applicant seeks to set aside the original decision of the delegate – where the application has no merit and is an abuse of process of the court.

SZGKO and Anor v Minister for Immigration [2005] FMCA 1254
Zubair v Minister for Immigration [2004] 211 ALR 261

Applicant: APPLICANT S1747 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2946 of 2005

Judgment of: Raphael FM

Hearing date: 12 January 2006

Date of Last Submission: 12 January 2006

Delivered at: Sydney

Delivered on: 12 January 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court's Rules

2. No further application by this applicant to review the decision of the respondent dated 29 July 1993 or the decision of the Refugee Review Tribunal, made on 11 January 1994 be accepted for filing by the court registry except with leave of the court.

3. Applicant to pay the respondent's costs assessed in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2946 of 2005

APPLICANT S1747 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application of a type that has become regrettably all too familiar in this court.  An applicant who has gone through the normal processes of a decision by a delegate, then a review by the Refugee Review Tribunal, then judicial review by this court or the Federal Court and appeals therefrom, has recommenced proceedings seeking to set aside the original decision of the delegate. In a well reasoned judgment SZGKO and Anor v Minister for Immigration [2005] FMCA 1254 Federal Magistrate Barnes explained why such an application constituted an abuse of processes of the court. I do not think it is necessary for me to repeat what her Honour said but I would note that it is based upon substantive authority such as Zubair v Minister for Immigration [2004] 211 ALR 261 and other cases of this court.

2. In passing I would remark that there seems to be no substance in any of the grounds raised by the applicant even if this might have been a valid application.  He has five grounds.  The first alleges that he was not notified of the delegate's decision but he clearly was.  Firstly because he says so on the title page of his application to this court and secondly because he filed a timely application to the Refugee Review Tribunal. The second ground alleges that the delegate did not have jurisdiction.  As no particulars are provided this is an unsustainable allegation.  The third ground is that the delegate's decision was infected by errors of law and was an improper exercise of the power conferred.  This is a template assertion for which no particulars are given and is of no value in considering the application.

3. The fourth so called ground is an attempt to get around the delay in bringing this application.  The delay is over 12 years.  The applicant was unable to see an error in the decision of the delegate within that time whilst he was taking part in a number of class actions and other legal processes relating to his application and there would be strong grounds for a court to refuse any review on a discretionary basis. Finally, the applicant says that his application is not vexatious or an abuse of process and makes reference there to a number of cases in this court in which a delegate's decision has been reviewed.  As Ms Griffin, who appears for the Minister, points out, those cases were cases where the delegate's decision had not been the subject of a review by the Tribunal.

4. The application has no merit.  It is an abuse of the process of this court.  I dismiss the application pursuant to Rule 13.10(c) of the Federal Magistrates Court's rules and I order that no further application by this applicant to review the decision of the respondent dated 29 July 1993 or the decision of the Refugee Review Tribunal, made on 11 January 1994 be accepted for filing by the court registry except with leave of the court.  I order that the applicant pay the respondent's costs which I assess in the sum of $2000.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  18 January 2006