SZBCE v MIMA

[2006] FMCA 1897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCE v MINISTER FOR IMMIGRATION [2006] FMCA 1897

MIGRATION – Summary dismissal of application.

PRACTICE & PROCEDURE – Grant of permanent injunction to restrain applicant from seeking further review from RRT.

Applicant: SZBCE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG2828 of 2006

Judgment of: Raphael FM

Hearing date: 13 December 2006

Date of Last Submission: 13 December 2006

Delivered at: Sydney

Delivered on: 13 December 2006

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Substantive application dismissed.

2. The applicant be permanently restrained from making an application to the Refugee Review Tribunal in respect of a decision of the delegate of the first respondent refusing to grant him a protection visa made on 12 April 2002.   

3. No further application by the applicant to review the decision of a delegate of the Minister made on 12 April 2002 or the decision of the Refugee Review Tribunal handed down on 8 July 2003 be accepted for filing without leave of the court.

4. Applicant pay the respondent’s costs assessed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2828 of 2006

SZBCE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in the substantive proceedings made an application for a protection visa on 13 December 2001 which was refused by a delegate of the Minister on 12 April 2002.  He lodged an application for review of that decision with the Refugee Review Tribunal on 30 April 2002.  The RRT determined to affirm the decision of the delegate on 8 July 2003. 

2. On 4 August 2003 the applicant sought judicial review in this court.  The application for judicial review was heard and determined by Federal Magistrate Driver on 10 December 2004.  No jurisdictional error was found.  On 23 December 2004 the applicant filed a notice of appeal which was dismissed by her Honour Bennet J on 2 June 2005.  On 24 June 2005 the applicant applied for special leave to appeal to the High Court which was dismissed on 6 October 2005 by Hayne and Callinan JJ. 

3. On 26 October 2005 the applicant filed another application for judicial review, this time of the decision of the delegate.  That application was summarily dismissed by Scarlett FM on 12 December 2005.  On 3 January 2006 the applicant filed an application for leave to appeal which was dismissed by Edmonds J on 1 May 2006.  On 31 May 2006 the applicant lodged a second RRT application for review of the delegate’s decision.  On 13 December 2006 the RRT found it had no jurisdiction to review the decision of the delegate again and on 3 October 2006 the applicant filed an application for judicial review in this court.  Not surprisingly, the Minister has asked for summary dismissal of that application. 

4. The history which I have rehearsed has only to be considered for a court to feel that its processes are being abused when the same decision is constantly the subject of applications for review which are all totally unsuccessful.  The applicant in this case was able to avoid the traps laid by the orders of Scarlett FM preventing him from seeking further review of the decision of the delegate by proceeding to seek further review from the Tribunal.  But this cannot avail him now when the very same matters that have been considered by every court in the Federal system are once again agitated.

5. I am satisfied that this application is an abuse of process and I dismiss the substantive application on that ground noting that when I asked the applicant what he might have to say to prevent me from making such an order he told me that he had nothing to say.  I would also be prepared, if the respondent so wished, to injunct the applicant from making any further applications to the Refugee Review Tribunal in respect to the decision of the delegate.

6. The applicant requested that I injunct the applicant from making any further application to the Refugee Review Tribunal in respect of the decision of the delegate of 12 April 2002.  I asked the applicant whether he had anything to say in response to that request.  I offered him the opportunity of providing me with an undertaking in lieu of the injunction and explained to him that a breach of the injunction or a breach of the undertaking would amount to a possible contempt of this court and that could result in imprisonment.

7. The applicant did not offer the undertaking and in those circumstances I will order that the applicant be permanently restrained from making an application to the Refugee Review Tribunal in respect of a decision of the delegate of the first respondent refusing to grant him a protection visa made on 12 April 2002.  The court notes that in order for such injunctive relief to be effective the respondent must serve the same upon the applicant with the usual notices. 

8. I will also continue the orders made by Federal Magistrate Scarlett on 12 December 2005 being order 3 of those orders and I order that the applicant pay the respondent’s costs assessed in the sum of $1,500. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: