SZAUB v MIMA & Anor

[2006] HCATrans 590

[2006] HCATrans 590

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S278 of 2006

B e t w e e n -

SZAUB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 OCTOBER 2006, AT 9.43 AM

Copyright in the High Court of Australia

SZAUB appeared in person.

MR S.B. LLOYD:   If the Court pleases, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

FAROUQUE AHMED KHAN, sworn as interpreter:

HIS HONOUR:   Mr Khan, could you just tell the applicant that I have read all the material that has been filed and in particular the summons that he is relying on today and his affidavit that was filed on 29 September.  Is there anything that the applicant wants to say in support of his application?

SZAUB (through interpreter):   When I apply to the Court to review my case I was expecting that I would get a letter from the High Court the date of submission but I did not get this letter, so I could not submit my submission.

HIS HONOUR:   Any other matter he wants to say?

SZAUB (through interpreter):   I would like to request that you consider my…..and relist my case to the Court, then the Court can review my application.

HIS HONOUR:   Anything further?

SZAUB (through interpreter):   That is all, your Honour.

HIS HONOUR:   I need not trouble you, Mr Lloyd.

The applicant has filed a summons seeking to reinstate a special leave application which it is common ground was deemed abandoned pursuant to rule 41.10.4 of the High Court Rules by reason of his failure to file a written case within 28 days of filing the application on 24 August 2006.  The background is as follows. 

The applicant is a citizen of Bangladesh who arrived in Australia on 29 March 2002.  On 23 April 2002 he lodged an application for a protection visa.  On 19 June 2002 a delegate of the Minister refused that application.  On 21 May 2003 the Tribunal affirmed the delegate’s decision. 

On 24 September 2004 Federal Magistrate Lloyd‑Jones dismissed an application filed by the applicant for judicial review of the Tribunal’s decision:  see SZAUB v Minister for Immigration and Multicultural Affairs [2004] FMCA 633. On 11 October 2004 the applicant lodged a notice of appeal in the Federal Court but it was dismissed by Justice Branson on 8 November 2004: see SZAUB v Minister for Immigration and Multicultural Affairs [2004] FCA 1468. Both Federal Magistrate Lloyd‑Jones and Justice Branson found that there had been no error of jurisdiction on the part of the Refugee Review Tribunal.

On 8 September 2005 Justices Hayne and Callinan dismissed a special leave application to appeal against Justice Branson’s orders:  see SZAUB v Minister for Immigration and Multicultural Affairs [2005] HCATrans 707.

On 30 September 2005 the applicant lodged a new application for judicial review challenging the same decision of the Tribunal in the Federal Magistrates Court.  On 22 May 2006 Federal Magistrate Driver dismissed that application as incompetent on the ground that the previous litigation had established that the Tribunal’s decision was free of jurisdictional error and that the Federal Magistrates Court had no further jurisdiction to deal with the matter:  see SZAUB v Minister for Immigration and Multicultural Affairs [2006] FMCA 733.

On 4 August 2006 Justice Moore dismissed an application for leave to appeal against Federal Magistrate Driver’s decision:  see SZAUB v Minister for Immigration and Multicultural Affairs [2006] FCA 977. On 24 August 2006 the applicant filed an application for special leave to appeal against Justice Moore’s judgment. I would agree with Justice Moore that no error has been demonstrated in what Federal Magistrate Driver has done.

The excuse offered by the applicant for failure to file a written case and draft notice of appeal within time is that the Registry of this Court did not send him a letter telling him that he had to.  That is no excuse.  It is not the duty of the Registry to acquaint litigants with the contents of the Rules.  It is their duty to ascertain them and comply with them.  But even if a reasonable excuse for non‑compliance had been demonstrated, the application should be dismissed.  No error in the reasoning of the courts below has been demonstrated.  Further, all the proceedings instituted by the applicant since his special leave application to this Court was dismissed on 8 September 2005 have been manifest abuses of process.

I order:

1.        That the summons be dismissed;

2.        That the applicant pay the first respondent’s costs.

AT 9.51 AM THE MATTER WAS CONCLUDED