SZBED v Minister for Immigration

[2006] FMCA 280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBED v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 280

MIGRATION – Application for summary dismissal – whether the application is an abuse of process.

SZBED v Minister for Immigration [2005] FMCA 72
SZBED v Minister for Immigration [2005] FCA 504
Zubair v Minister for Immigration (2004) 211 ALR 261
SZATHv Minister for Immigration [2006] FMCA 80
S1747/2003 v Minister for Immigration [2006] FMCA 35
SZGKO and Anor v Minister for Immigration [2005] FMCA 1254

Applicant: SZBED

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 3111 of 2005

Judgment of: Raphael FM

Hearing date: 23 February 2006

Date of Last Submission: 23 February 2006

Delivered at: Sydney

Delivered on: 23 February 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent's costs assessed in the sum of    $2000.

3. No further application by this applicant to review the decision of     the delegate made on 14 June 2002 or the Refugee Review Tribunal made on 30 June 2003 be accepted for filing by the Court Registry, except with leave of the court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3111 of 2005

SZBED

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application by the respondent Minister to dismiss on the grounds of abuse of process a substantive application filed on

   
   

   25 October 2005 to review a decision of a delegate of the Minister made on 14 June 2002.  This decision of the delegate was itself appealed to the Refugee Review Tribunal by the applicant on 19 July 2002.  The Tribunal invited the applicant to give oral evidence to it and conducted a hearing on 10 June 2003. On 30 June 2003 it determined to affirm the decision of the delegate. 

2. The applicant was not satisfied with the Tribunal's decision and believed that it contained a jurisdictional error.  He sought judicial review from the Federal Magistrates Court where, on 2 February 2005, his application was dismissed by Driver FM: SZBED v Minister for Immigration [2005] FMCA 72. The applicant, as was his right, appealed the decision of Driver FM to the Federal Court where on

   
   

   21 April 2005 Wilcox J dismissed the appeal: SZBED v Minister for Immigration [2005] FCA 504. On 12 May 2005, the applicant filed an application for special leave to High Court. On 6 October 2005, Gummow and Kirby JJ in dismissing that application said:

“The applicant sought review of the Tribunal's decision in the Federal Magistrates Court.  The court dismissed his application on the basis that the applicant had not shown jurisdictional error in the Tribunal's decision which had turned upon factual matters.  An appeal to the Federal Court (Wilcox ACJ) was dismissed.  We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There are insufficient prospects of success in any appeal to this court from a decision of Wilcox ACJ.  Accordingly, special leave to appeal is refused.”

The respondent argues that to come back to this court seeking review of the decision of the delegate is an abuse of the court's processes.  She argues that any fault that may have existed in the decision of the delegate was cured by virtue of the grant of a full merits appeal to the Refugee Review Tribunal.  This is clearly the law since the decision of the Full Bench in Zubair v Minister for Immigration (2004) 211 ALR 261. I opined that an application such as this was an abuse of the processes of this court in SZATHv Minister for Immigration [2006] FMCA 80 and in S1747/2003 v Minister for Immigration (2006) FMCA 35. In those cases I referred to a well reasoned judgment by her Honour Barnes FM in SZGKO and Anor v Minister for Immigration [2005] FMCA 1254.

1. When the applicant appeared before me today I asked him what he had to say as to why his application did not constitute an abuse of the processes of the court.  He told me he had nothing to say.  I am satisfied that the application is an abuse of process and that the Minister's application is appropriate.  I think it would be as well to grant the Minister's application to restrain the applicant from making further applications to this court, although, of course, this will not prevent any appeal from my decision.

2. The orders I will make are as follows:

   (1)    Application dismissed;

   (2)Applicant to pay the respondent's costs assessed in the sum of $2000

   (3)    No further application by this applicant to review the decision of        the delegate made on 14 June 2002 or the Refugee Review

   
   

   Tribunal made on 30 June 2003 be accepted for filing by the Court Registry, except with leave of the court.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: