SZAYH v Minister for Immigration (No.2)
[2005] FMCA 1764
•18 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAYH v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 1764 |
| MIGRATION – Delegate’s decision – application for judicial review after unsuccessful challenges to Tribunal decision – dismissed as an abuse of process. |
Federal Court Rules, O.54B r.5
Federal Magistrates Court Rules 2001, rr.13.10(a), 13.10(b), 13.10(c), Sch.3 Pt.2
Migration Act 1958 (Cth), s.66
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414
SZAYH v Minister for Immigration [2005] FMCA 1122
SZAYH v MIMIA [2005] HCA Trans353
SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 4
SZAYH v Minister for Immigration [2004] FMCA 771
SZGMZ v Minister for Immigration [2005] FMCA 1549
| Applicant: | SZAYH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2858 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 18 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms A Nanson |
| 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 $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 June 2003 reference N02/43000 or for review of the decision of the delegate of the respondent dated 24 May 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 |
SYG2858 of 2005
| SZAYH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Before me is an interlocutory application by the Minister, who is the only respondent to an application filed by the applicant on 6 October 2005. The Minister seeks the summary dismissal of the application under rule 13.10(a), (b) or (c) of the Federal Magistrates Court Rules 2001 (“the FMC Rules”). These allow dismissal on the ground that there is no reasonable basis for the application disclosed (see the Federal Court Rules Order 54B rule 5 adopted by Schedule 3 Part 2 of the FMC Rules), or that the proceeding is frivolous or vexatious, or that the proceeding is an abuse of the process of the Court.
I propose to deal with the application on the latter basis, addressing the significance of the history of litigation engaged in by the applicant which I shall set out below, and whether the present application is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
The principal application was returnable before me on 8 November 2005, by which time the applicant had already been served with the Minister’s interlocutory application. He presented at that time a document headed “Applicant’s Argument for Competency”. I adjourned the motion and listed it for hearing today. The applicant has appeared and has made submissions to me, which I shall refer to below.
The applicant’s previous history of litigation concerning administrative decisions on his application for a protection visa is recited in previous judgments, including one which I delivered on 26 July 2005 (see SZAYH v Minister for Immigration [2005] FMCA 1122). At that time, I dismissed as an abuse of process the applicant’s second application to this Court, which sought review of a decision of the Refugee Review Tribunal which affirmed a delegate’s decision refusing his application for a protection visa.
As I indicated in my judgment, the applicant had previously made a similar application which had been determined on its merits by Driver FM and dismissed. An appeal had been dismissed by Moore J, and special leave to appeal had been refused by the High Court.
I reviewed the applicant’s conduct in relation to that litigation, and concluded: “It is apparent to me that he will continue to attempt to maintain hopeless litigation concerning this Tribunal decision”.
I therefore directed the Registry that no further application for review of the Tribunal decision should be accepted without prior leave.
The applicant appealed from my order to the Federal Court. On 16 September 2005, Madgwick J refused leave to appeal (see SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1414). His Honour said:
[11]In the lamentable circumstances of his refusal to accept his legal fate, I think it is appropriate to make such an order against the applicant in protection of the Court, and of the respondent.
His Honour therefore made an order directed at his Registry similar to that which I had made. Unfortunately, it is now apparent that both our orders were not drafted broadly enough. The applicant has now availed himself of a precedent circulating in recent times, which seeks to get round directions against further filing, by framing a fresh application as a challenge to the delegate’s decision which has been affirmed by the Tribunal.
The applicant’s present application duplicates applications which I have dealt with in several judgments, and in particular in SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”). In effect, the application purports to challenge the delegate’s decision on the basis that it is invalid due to an alleged failure to follow notification procedures under s.66 of the Migration Act 1958 (Cth).
The applicant’s written submission in opposition to the Minister’s application is a concoction of pseudo‑legal propositions, unfocused complaints about the merits of the decision to refuse him a protection visa, and affirmations of a fear of returning to India. It makes no attempt to address the principles in relation to abuse of process to which the Minister’s written submission should have alerted him. It makes no attempt to support the grounds of his own application.
His oral submissions were even less to the point. He concluded by promising that, if his case was remitted to the Tribunal to allow him to show it new evidence, he would accept its decision and go to another country if it was unfavourable.
For the reasons which I gave in SZGMZ at [22]‑[26], his present application has no prospects of success in obtaining the relief it seeks and is hopeless. It is also an abuse of process due to the existence of circumstances comparable with those which existed in SZGMZ relating to the applicant’s history of litigation. In this case, as in that case, it is plain to me that the applicant will attempt to persist in bringing unmeritorious applications in the Courts of Australia. I therefore propose to dismiss the present application and extend the direction I previously gave. I also consider that the circumstances justify an order for costs on an indemnity basis.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 2 December 2005