SZADN v Minister for Immigration - [2005] FMCA 1812

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADN v MINISTER FOR IMMIGRATION

[2005] FMCA 1812

MIGRATION – Delegate’s decision – previous litigation concerning Tribunal decision – application dismissed as an abuse of process.

Federal Magistrates Court Rules 2001, rr.13.03A(d), 13.10, 13.10(c)

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
S219/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 716
S219 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 197
S219 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1564
SZADN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1120
SZADN v Minister for Immigration [2003] FMCA 216
SZGMZ v Minister for Immigration [2005] FMCA 1549

Applicant:

SZADN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2850 of 2005

Judgment of:

Smith FM

Hearing date:

24 November 2005

Delivered at:

Sydney

Delivered on:

24 November 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the Respondent:

Ms E Warner Knight

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the respondent’s costs on an indemnity basis in the sum of $3,900.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 6 January 2003 reference N02/44542 or for review of the decision of the delegate of the respondent dated 18 September 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2850 of 2005

SZADN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application by the respondent to this application, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”). The Minister seeks orders that the principal application should be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001, either as frivolous or vexatious, or an abuse of the process of the Court, or because no reasonable basis for the application is disclosed. I propose to deal with it on the basis of abuse of process, and by considering the significance of a history of litigation that I shall refer to below, and whether the application has prospects which can be described as “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
The applicant has not appeared today on the hearing of the Minister’s motion, however, I am satisfied that he was on notice of today’s listing, and was aware that if he did not appear then the hearing of the motion could proceed in his absence. I told him both of these things at a first court date which he attended in person with the assistance of an interpreter on 9 November 2005. I am satisfied that he was subsequently served with the documents concerning the motion including a written submission explaining the Minister’s argument. I consider it appropriate to proceed under rule 13.03A(d) with the hearing of the interlocutory application. As will appear below, the non‑appearance of this applicant is by no means a surprise.
The applicant arrived in Australia in February 2001 as a student. He applied for a protection visa on 8 April 2002. The application was refused by a delegate on 18 September 2002. The delegate noted that the applicant was invited to attend an interview, and that the applicant wrote to the Department advising that he could not attend and requested a decision be made without his attendance. In the absence of more detail, the delegate was not satisfied as to the truth of his claims to fear persecution if he returned to his country of nationality which was Pakistan.
The applicant appealed to the Refugee Review Tribunal (“the Tribunal”) who also invited the applicant to attend a hearing. At that time he was held in detention as a result of breaching conditions of his visa. The applicant applied for an adjournment, and then declined to attend a hearing where the Tribunal indicated it would discuss his claimed reasons for an adjournment. The Tribunal proceeded to make a decision, which in substance was based on its inability to be satisfied as to his claims.
The applicant commenced judicial review proceedings in this Court seeking orders for a rehearing by the Tribunal. His application was listed before Raphael FM on 19 May 2003, and the applicant did not attend. He wrote a letter to the Australian Government Solicitor saying:
I kindly inform you that I do not want to go to Federal Court because I have to proceed this matter in a different way.
Notwithstanding this, His Honour examined the merits of the applicant’s matter and said that he was unable to find any jurisdictional error in the decision of the Tribunal (see SZADN v Minister for Immigration [2003] FMCA 216).
The applicant appealed to the Federal Court, and Hill J on 24 September 2003 heard submissions from the applicant, firstly, in support of an adjournment request. His Honour refused the adjournment and said:
The history of the matter seems essentially to be a continuous attempt of seeking adjournments and then not participating in the relevant legal steps.
His Honour then addressed the merits of the matter and could find no legal error on the part of Raphael FM. He regarded the appeal as hopeless and dismissed the appeal with costs (see SZADN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1120).
The applicant did not apply for special leave in the High Court, but commenced a fresh proceeding for judicial review in that Court by filing an application for an order nisi which was remitted to the Federal Court by Heydon J on 23 August 2004. The application was considered by Madgwick J on 29 October 2004. The applicant again applied for an adjournment which his Honour refused. His Honour pointed to the delay, and also said: “there is no sign of any jurisdictional error in the decision of the Tribunal”. His Honour concluded:
It is quite clear, when one examines the conduct of the applicant over a long time, that he has simply used the available legal processes in a cynical way in order to enlarge his time in Australia. In the circumstances, I think the respondent’s submission that the present proceedings are not only baseless but amount to an abuse of process is correct.
His Honour dismissed the application (see S219 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1564).
The applicant applied for time to appeal from his Honour’s judgment. On 17 February 2005, Moore J dismissed the application on the basis that no error had been demonstrated (see S219 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 197).
The applicant then applied to the High Court for special leave to appeal, using documents which had no bearing on his case. His application was dealt with in chambers. When publishing the reasons of the Court on 8 September 2005, Hayne J said that “none of [this and 28 other applications in the same form] would enjoy any prospect of success”. Their Honours dismissed the application (S219/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 716).
The applicant then within a month commenced the present proceeding, thereby allowing himself to acquire yet another bridging visa based on the bringing of litigation. The application he has used on this occasion does not challenge the decision of the Tribunal, but adopts a form which has circulated in recent times in Sydney which challenges the prior decision of the delegate, and seeks various declarations and orders in relation to that decision and its notification.
The form of application is indistinguishable from the form which I addressed in SZGMZ v Minister for Immigration [2005] FMCA 1549. I adopt my description and characterisation of its claims found in [16]‑[20] of my judgment in that case. I also consider to be equally applicable, the four reasons which I identified as characterising the application as having hopeless prospects of success and amounting to an abuse of process in the circumstances of a repeat litigator of the present sort. I shall not repeat what I said in [22]‑[26] of my judgment in that respect.
The history of the matter which I have recounted above, and the previous observations of Judges concerning the applicant’s attitude towards the Australian Courts reveals him to be a person who will continue to seek to abuse the processes of the Court. I shall attempt to deal with this prospect by making a broadly‑worded direction which will prevent any further application concerning administrative actions in relation to his protection visa application being brought to this Court without prior leave from the Court. I also consider that the history of the litigation justifies an order of costs on an indemnity basis.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 December 2005