SZBPF v Minister for Immigration

[2006] FMCA 630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 630

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing.

PRACTICE & PROCEDURE – Abuse of process – res judicata – competency – application is out of time – where application filed more than 28 days after actual notification of RRT decision – where applicant notified on 3 September 2003 but application for relief not filed until 27 March 2006.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474, 477

Applicant: SZBPF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 880 of 2006

Judgment of: Scarlett FM

Hearing date: 24 April 2006

Date of last submission: 24 April 2006

Delivered at: Sydney

Delivered on: 24 April 2006

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Kerr

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

2. The Application is not competent.

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

4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,000.00.

5. No application for review of the decision made by the Refugee Review Tribunal NO3/45537 made on 29 August 2003 and handed down on

   
   

   25 September 2003 is to be accepted for filing at any Registry of the Court without leave. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 880 of 2006

SZBPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICUTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29^th August 2003.  It was handed down on 3^rd September 2003.

2. The application for relief was not filed in this Court until 27^th March 2006. Quite clearly, the application is out of time and would therefore not be competent under s.477 of the Migration Act.

3. Unfortunately, the application is also an abuse of process because it has already been heard.

4. The Applicant’s application for review of this decision was heard by Raphael FM in this Court on 25^th July 2005. His Honour dismissed the application with costs on that date. The citation is [2005] FMCA 1085. The Applicant then appealed to the Full Court of the Federal Court. On 18^th October 2005 Graham J exercising the jurisdiction of the Full Court of the Federal Court dismissed his appeal with costs. The Applicant then went to the High Court of Australia to seek special leave to appeal. On 9^th March 2006 Hayne and Crennan JJ dismissed that application. On 27^th March the Applicant then started again.

5. The application is clearly an abuse of process. The Applicant needs to understand that once a matter has gone through the Court process he cannot go around again until he gets a decision that is more to his liking.  The application is not competent because it is out of time.  It is also to be dismissed as an abuse of process.  As an abuse of process it certainly attracts a costs penalty. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  1 May 2006