SZAPF v Minister for Immigration
[2007] FMCA 850
•24 May 2007
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 his mistake when he attended one day late.
I am inclined to believe the applicant. As I shall indicate, he is an experienced litigator, and in the previous judgments in the matter there is no indication has made a habit of avoiding attendances at Court. In any event, I would have given him the benefit of the doubt, and allowed his matter to continue in this Court if it had any possible merit. However, it does not.
The substantive application seeks orders, in effect, by way of mandamus under s.476 of the Migration Act, following a decision by the Refugee Review Tribunal made on 13 February 2007 declining jurisdiction in response to an application for review filed by the applicant on 8 December 2006.
In its statement of reasons for declining jurisdiction, the Tribunal referred to the time limits on bringing an application to that Tribunal, which are mandatory, and to authority indicating that the Tribunal has no jurisdiction to review a decision of a delegate if it has made an earlier valid decision affirming the delegate's decision.
In the present case, the applicant was seeking a second review of a delegate's decision which had been made on 29 May 2000, refusing to grant the applicant a protection visa. The applicant had lodged a previous application to the Tribunal for a review, which it had completed with a decision affirming the delegate's decision on 28 March 2003. The applicant had then litigated the validity of that decision of the Tribunal in proceedings in this Court, the Federal Court and the High Court. All of those applications had been unsuccessful in discovering jurisdictional error affecting the first decision of the Tribunal. The reasons of Driver FM in SZAPF v Minister for Immigration [2004] FMCA 684 are before me, as are the orders of Moore J on 11 November 2004 dismissing an appeal, and of Gummow and Kirby JJ on 6 October 2005 refusing special leave (see SZAPF v Minister for Immigration [2005] HCATrans 802).
The applicant then commenced a second proceeding in this Court, adopting a precedent which was common at the time, in which a challenge was made to the antecedent decision of the delegate. This application was dismissed by Scarlett FM, on an application by the Minister claiming that it was an abuse of process (see SZAPF v Ministerfor Immigration [2005] FMCA 1967). In his reasons, his Honour accepted that there was an abuse of process, and made orders restraining the applicant from filing a further application challenging the delegate's decision without leave of the Court.
The applicant sought to appeal the orders of Scarlett FM, but Black CJ dismissed an application for leave to appeal (see SZAPF v Minister for Immigration [2006] FCA 553). His Honour, at [6] described as “inevitable” Scarlett FM's finding that the proceeding was an abuse of process.
However, the applicant applied to the High Court a second time, seeking special leave to appeal from the orders of the Chief Justice. The application was refused on 15 November 2006 (see SZAPF v Minister for Immigration [2006] HCATrans 649). Gummow J, announcing the reasons of the Court, said:
The application for special leave establishes no possibility of any error in the decisions below.
As I have indicated, the applicant did not accept the finality of the outcome in either of his judicial review proceedings, but has now sought to obtain a second hearing from the Tribunal by filing a second application to that Tribunal.
In my opinion, the Tribunal was clearly correct, for the reasons it gave in declining jurisdiction. I can see no arguable basis on which the applicant could make out an entitlement for an order by way of mandamus requiring the Tribunal to further consider the delegate's decision made on 29 May 2000.
The applicant, today, could not present any such argument to me, but attempted to present further challenges to the reasons of the first Tribunal to show me where it made errors when refusing him a protection visa. However, as I have explained to him, the validity of that decision has previously been decided against him by a judgment of this Court, which has been taken on appeal to the High Court.
In his statements to me today, the applicant revealed no acceptance of the finality of the litigation which he has previously brought. In my opinion, it is appropriate for me to attempt to remind him of this again, and to limit his ability, without the prior leave of the Court, to bring further litigation in this Court concerning his protection visa entitlements arising from his original visa application. As I have explained to him, this will require him to show me that he has a proper basis for filing any further applications before they will be accepted by the Registry.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 4 June 2007
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