SZBNI v Minister for Immigration
[2004] FMCA 200
•29 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNI v MINISTER FOR IMMIGRATION | [2004] FMCA 200 |
| MIGRATION – Application by the Minister for summary dismissal of application for review of RRT decision – where applicant previously brought review proceedings in Federal Court which were dismissed – whether present application for review is vexatious and brought for the purposes of delay – where applicant failed to attend hearing – where ground of review not particularised – whether application is an abuse of process of the court. |
Federal Magistrates Court Rules2001, 13.10(c)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2
Walton v Gardiner (1993) 177 CLR 378
Johnson v Gore Wood & Co [2002] 2 AC 1
NADR v Minister for Immigration [2002] FCAFC 293
VAS v Minister for Immigration [2002] FCAFC 350
SDAN v Minister for Immigration [2002] FCAFC 351
| Applicant: | SZBNI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2008 of 2003 |
| Delivered on: | 29 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules.
The applicant to pay the respondent's costs assessed in the sum of $2,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The applicant is not permitted to file any application seeking review of the decision of the Tribunal constituted by Mr Roger Gibson dated
12 December 2000 without further leave of this court. This order does not apply to an appeal against these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2008 of 2003
| SZBNI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 30 April 2001, the applicant filed an amended application for review of a decision of the RRT made on 12 December 2000 in the Federal Court. On 30 April 2001 Madgwick J ordered that the application for review be dismissed and that the applicant pay the respondent's costs. Notwithstanding that order, which was not appealed, the applicant remained in the country. He remained long enough to enable him, some two and a half years later, to file the present application in this court on 29 September 2003. In his application, he stated that his case was identical with Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, which he acknowledged had been handed down one year and one month earlier on 8 August 2002.
The new application claimed that the decision was affected by error of law, procedural fairness and denial of natural justice and made reference to Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2, which the applicant acknowledged had been handed down on 4 February 2003. The applicant had been legally represented at the hearing before Madgwick J and the proceedings were dismissed after a full hearing of the substantive merits of his grounds for review. Mr Reilly, noting that approximately two years and five months have elapsed since the judgment of Madgwick J in the former proceedings, has informed me that it is open to the court to infer that the applicant is now using the process of this court to extend his presence in Australia rather than for any legitimate purpose.
He also argues that the repeated bringing of similar applications is an abuse of process if it is unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at [393]. He argues that there is an underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner: Johnson v Gore Wood & Co [2002] 2 AC 1. The applicant attended before the Registrar of this court at a directions hearing. On that date he was informed that the respondent intended to bring this application and a date being today was set.
I have received evidence from Ms Houlton, the instructing solicitor in the matter, to the effect that she has been in contact with the applicant since that time and that he has been made well aware of his responsibility to attend today. The applicant has not so attended. Even assuming that the court was sympathetic to the applicant's claim that a case which was heard before the Refugee Review Tribunal suffered from the same faults as those found by the High Court in Muin & Lie, there have been numerous judgments of the Full Court of the Federal Court which have made it plain that this ground of review cannot succeed unless the applicant establishes the necessary factual sub stratum to enliven it: NADR v Minister for Immigration [2002] FCAFC 293, VAS v Minister for Immigration [2002] FCAFC 350, SDAN v Minister for Immigration [2002] FCAFC 351.
No such evidence has been produced and, I have noted previously, the applicant is not here today. The applicant has not provided any particulars of any other ground for judicial review such as his claims for error of law, lack of procedural fairness and denial of natural justice. I am satisfied that this is a case which represents a clear abuse of the processes of the court. The applicant has utilised the processes to obtain for himself a further hearing of a matter that has already been decided. I dismiss this application pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules. I order that the applicant pay the respondent's costs which I assess in the sum of $2,500.
I order the Registrar not to accept any application for review of the decision of the Tribunal constituted by Roger Gibson, made on 12 December 2000 without leave of the court. This order does not apply to an application for leave to appeal against these orders.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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