SZAZY v Minister for Immigration

[2006] FMCA 479

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 479

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse a protection visa to the applicant.

PRACTICE & PROCEDURE – Competency – abuse of process.

Migration Act 1958 (Cth), ss.476, 477, 486D

SZAZY v Minister for Immigration [2004] FMCA 847
SZAZY v Minister for Immigration (No.2) [2005] FMCA 1635
SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 153

Applicant: SZAZY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 524 of 2006

Delivered on: 30 March 2006

Delivered at: Sydney

Hearing date: 30 March 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Carter

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is dismissed as an abuse of process.

2. The Applicant is to pay the First Respondent’s costs in the sum of $1,500.00.

3. The Applicant is restrained from filing any further application for review of the decision of the Refugee Review Tribunal made on
   18 August 2003 and handed down on 11 September 2003 with leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 524 of 2006

SZAZY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Refugee Review Tribunal that was handed down on 11^th September 2003. The history of this matter is set out in an affidavit of Nicola Johnson, solicitor, sworn on 16^th March 2006.  There have been three prior sets of proceedings.

2. First, the Applicant filed an application for judicial review on 12^th November 2003. The Respondent filed a Notice of Objection to Competency on 28^th January 2004. The matter came before the Court for Directions initially on 1^st April when the Applicant's solicitor

   
   

   Mr Diab failed to appear. The matter was adjourned until 8^th April 2004 when the Applicant was ordered to file and serve an Amended Application by 30^th April.

3. On 22^nd June 2004 the application came before me for non-compliance with the directions and on that same day the Applicant's solicitor served an Amended Application.

4. The application was listed for hearing on 19^th October 2004. The Applicant did not attend Court on that day.  As a result the application was dismissed for non attendance under Rule.13.03A of the Federal Magistrates Court Rules 2001.

5. The Applicant lodged an application to set those orders aside. That was done on 14^th September 2005. The application came before the Court initially on 13^th October 2005 and as the application and affidavit had not been served, the application was re-listed until 27^th October.

6. That application was heard on 27^th October 2005 and judgment was reserved until 10^th November 2005. On that date I handed down a decision dismissing the application with costs.

7. The Applicant then lodged a notice of appeal on 16^th November 2005 and on 23^rd December that year the Applicant filed an Amended Notice of Appeal with an affidavit.

8. On 6^th February 2006 in the Federal Court, Graham J dismissed the application for leave to appeal.

9. On 20^th February 2006 the Applicant lodged a fresh application under the Migration Act seeking review of the same decision. It should be clear by now that this application is an abuse of the Court's process. The matter has been dealt with both in this Court and on appeal in the Federal Court.

10. The Applicant has told the Court that his solicitors did not look after his interests and in fact acted contrary to his knowledge.  That may be so or it may not.  If the applicant has a complaint against his solicitors there are avenues for him to complain.

11. What is clear is that this application for review is seeking to re-argue a matter that has already been dealt with. As such it is an abuse of process. The Court takes a serious view of abuse of its process and quite clearly the application must be dismissed. I order that the application is dismissed as an abuse of process.

12. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $1,500.00.  I have previously found that this is an abuse of process. I propose to order that the Applicant is restrained from filing any further application for review of the decision of the Refugee Review Tribunal made on 18^th August and handed down on 11^th September 2003 without leave of the Court. I require a transcript of my reasons for this decision and the application is removed from the list of cases awaiting finalisation.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  6 April 2006