SZAHM v Minister for Immigration

[2007] FMCA 1297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHM v MINISTER FOR IMMIGRATION & ANOR (No.2) [2007] FMCA 1297

MIGRATION – Application in a case for reinstatement of show cause application – leave required following summary dismissal of show cause application – no reasonable cause of action and abuse of process – leave refused.

Migration Act 1958 (Cth)

SZAHM v Minister for Immigration & Anor [2007] FMCA 1176

Applicant: SZAHM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2093 of 2007

Judgment of: Driver FM

Decided without hearing

Delivered at: Sydney

Delivered on: 6 August 2007

INTERLOCUTORY ORDERS

1. Leave to file the application in a case faxed to the Court on 3 August 2007 is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2093 of 2007

SZAHM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 20 July 2007 I made orders dismissing with costs a show cause application under the Migration Act 1958 (Cth) which had been filed on 6 July 2007. I gave reasons for my decision: SZAHM v Minister for Immigration & Anor [2007] FMCA 1176. I found that the application had no prospect of success and that it was an abuse of process. Orders 3 and 4 made by me were as follows:

   (3) No further application by this applicant to review any decision under the Migration Act relating to his application for a protection visa made on 21 June 2001, the decision of the delegate on that application, or any decision of the Refugee Review Tribunal relating to the delegate’s decision, or any notification of such decisions, or today’s decision of this Court is to be accepted for filing in this Court, except by leave of a Federal Magistrate.

   (4)The Court directs that the Minister arranged to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service.

2. Accordingly, the present application in a case seeking to reinstate the show cause application requires leave.  The applicant did not attend the first court date hearing on 20 July 2007.  At the time there was no explanation for his non attendance.  However, on 27 July 2007 the Court received a letter from the Minister’s solicitors which relevantly states as follows:

   We were instructed earlier today that the applicant had been detained at Villawood Immigration Detention Centre (“VIDC”) ON 11 July 2007.  This fact was not made known to either the case officer at the Department of Immigration and Citizenship (“DIAC”) or the solicitors for the first respondent, and accordingly no arrangements were made to have the applicant brought to Court for the directions hearing on 20 July 2007.  We are instructed that the failure to communicate the fact of the applicant’s detention to the case officer at DIAC was an administrative error.

   We note that the first respondent’s Response, submissions and the Affidavit of Jonathon Dooley were sent by courier to the applicant’s address for service nominated in his application for judicial review on 18 July 2007, 7 days after the applicant was placed into detention.  Copies of the above documents, and a copy of this letter, will be served on the applicant today.

   The first respondent would consent to any orders that the Court thinks appropriate, including an order setting aside the Court’s orders of 20 July 2007.  However, the first respondent contends that, given the applicant’s lengthy litigation history, the orders made by his Honour on 20 July 2007 were appropriate.

   We are instructed to apologise to the Court for failing to arrange for the applicant to be present at the directions hearing on 20 July 2007.

3. The applicant confirms in an affidavit made on 3 August 2007 that he had been held in immigration detention since 11 July 2007 and was not informed about anything concerning his case. 

4. There is no doubt that the applicant has advanced a sufficient explanation for his non attendance at court on 20 July 2007.  In the ordinary course, the interests of the administration of justice would require orders setting aside at least orders 1 and 2 made by me on that day.  However, the position remains that the show cause application is an abuse of process and is doomed to fail for the reasons given by me in SZAHM v Minister for Immigration.  Because there is no prospect whatsoever of that application being successful and because of the applicant’s litigation history I will refuse leave for the filing of the application in a case.

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

Associate: 

Date:  6 August 2007