SZBPS v Minister for Immigration - [2005] FMCA 1798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1798

MIGRATION – RRT decision – previous judicial review applications – fresh application dismissed as abuse of process.

Federal Magistrates Court Rules 2001, rr.13.03A(d), 13.10, 13.10(c)
Migration Act 1958 (Cth), s.426A(1)

NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119

SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 718
SZBPS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 435
SZBPS v Minister for Immigration [2005] FMCA 23
Williams v Spautz (1992) 174 CLR 509

Applicant:

SZBPS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2852 of 2005

Judgment of:

Smith FM

Hearing date:

24 November 2005

Delivered at:

Sydney

Delivered on:

24 November 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the First Respondent:

Ms S Burnett

Solicitors for the Respondents:

Clayton Utz

ORDERS

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $3,765.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 September 2003 reference N02/45420 or for review of the decision of the delegate of the first respondent dated 6 December 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2852 of 2005

SZBPS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed by the Minister, who is the first respondent in this proceeding, seeking the summary dismissal of the principal application under rule 13.10 of the Federal Magistrates Court Rules 2001 on the basis that no reasonable basis for the application is disclosed, or that it is frivolous or vexatious, or is an abuse of the process of the Court. I propose to deal with it on the latter basis, and to consider both the significance of the history of litigation conducted by the applicant and also whether his present application as filed is “plainly untenable and unarguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [61]).
I shall consider the applicant’s history of litigation before addressing the merits of his current application. Before doing so I should note that the applicant has not appeared today, however, I am satisfied that he is on notice of today’s listing, and that he is aware that the Minister’s application could proceed to be dealt with today even if he were absent. I told this to him at the first court date on 9 November 2005, when he appeared and had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1798
Decision Date: 24 November 2005

CaseChat Overview and Summary

The case of SZBPS v Minister for Immigration involved the applicant, SZBPS, seeking judicial review of decisions made by the Refugee Review Tribunal and the delegate of the Minister for Immigration. The applicant, a national from a non-specified country, had applied for a protection visa which was subsequently refused. The applicant then appealed to the Refugee Review Tribunal, which affirmed the delegate's decision. Dissatisfied, the applicant sought judicial review of these decisions in the Federal Court of Australia.

The central legal issues before the court were whether the applicant's application for judicial review was an abuse of process under Rule 13.10(c) of the Federal Court Rules, and if so, what orders should be made in response to such an abuse. Additionally, the court had to determine the appropriate costs order in light of the findings.

The court found that the applicant's application was indeed an abuse of process. The reasons for this determination included the applicant's history of making numerous similar applications, many of which were frivolous or vexatious. The court was critical of the applicant's conduct, noting that the applications were repetitive and lacked any new evidence or arguments that would warrant further judicial consideration. Consequently, the court dismissed the substantive application as an abuse of process and ordered the applicant to pay the Minister's costs on an indemnity basis. Furthermore, the court issued a direction that no further applications for review of the specified decisions would be accepted without prior leave of the Court. This was intended to prevent the recurrence of such abusive applications in the future.

Orders

Orders of the court

The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.

The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $3,765.

Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 17 September 2003 reference N02/45420 or for review of the decision of the delegate of the first respondent dated 6 December 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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