SZAPF v Minister for Immigration - [2007] FMCA 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 850

MIGRATION – RRT decision – second application to Tribunal – previous decision upheld on judicial review – application dismissed for absence from first court date – application to set aside refused – order that no further filing without leave.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r .13.03A(c)

SZAPF v Minister for Immigration [2004] FMCA 684

SZAPF v Minister for Immigration [2005] HCATrans 802
SZAPF v Ministerfor Immigration [2005] FMCA 1967
SZAPF v Minister for Immigration [2006] FCA 553
SZAPF v Minister for Immigration [2006] HCATrans 649

Applicant:

SZAPF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 794 of 2007

Judgment of:

Smith FM

Hearing date:

24 May 2007

Delivered at:

Sydney

Delivered on:

24 May 2007

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Ms S Kantaria

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 3 April 2007 is refused.
The applicant must pay the first respondent’s costs in the sum of $1,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 April 2003, or for review of the decision of the delegate of the first respondent dated 29 May 2000, 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 10 May 2000, shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 794 of 2007

SZAPF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 16 April 2007 in which the applicant, in effect, seeks to set aside an order I made on 3 April 2007 dismissing an application commencing proceedings in this Court. That application, which I dismissed, had been filed on 6 March 2007.
I dismissed the application due to the absence of the applicant at the first Court date, exercising powers under r.13.03A(c). The dismissal of an application for non-appearance at a first Court date is an exceptional event in my lists, but, as I shall indicate, the application on its face lacked any merit.
The present application to set aside the default order explains the applicant's absence in a supporting affidavit, and the applicant maintained his explanation under cross-examination today. He says that he personally filed the original application and received a copy which had endorsed on it a return date in this courtroom on 3 April, but that he lost the document when he was returning home in the train. He then mistakenly recalled the first Court appointment as being on 4 April. He said that he put that date into his diary in his mobile phone, and only discovered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 850
Decision Date: 24 May 2007

CaseChat Overview and Summary

The applicant, Mr. SZAPF, sought to set aside orders made on 3 April 2007, which involved his application for a protection visa. The Minister for Immigration was the first respondent. The dispute centred around the legality of the orders made by the court and the subsequent refusal to accept further applications for review without prior leave. The matter was heard in the Federal Court of Australia.

The central legal issues revolved around the interpretation and application of the relevant rules of court, particularly r.16.05(2)(a), and whether the orders made were justified. Additionally, the court had to determine whether further applications for review should be accepted without prior leave, given the history of multiple applications and reviews.

The Federal Court found that the orders made on 3 April 2007 were lawful and appropriate, given the circumstances. The court emphasised the need for finality in administrative decisions and the importance of adhering to the rules governing further applications for review. The applicant's numerous attempts to challenge the same decision were deemed vexatious, leading to the refusal to accept further applications without prior leave.

In conclusion, the court refused the applicant's application to set aside the orders made on 3 April 2007 and ordered that the applicant pay the first respondent's costs. The court also mandated that any further applications for review would require prior leave, effective as of the date of the decision.

Orders

Orders of the court

The applicant’s application under r.16.05(2)(a) to set aside orders made on 3 April 2007 is refused.

The applicant must pay the first respondent’s costs in the sum of $1,500.

Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 April 2003, or for review of the decision of the delegate of the first respondent dated 29 May 2000, 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 10 May 2000, shall be accepted for filing without prior leave of the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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