SZBTV v Minister for Immigration
[2004] FMCA 201
•30 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBTV v MINISTER FOR IMMIGRATION | [2004] FMCA 201 |
| MIGRATION – Application by Minister for summary dismissal of application for review of RRT decision – application brought on basis of failure to disclose reasonable cause of action and abuse of process – where applicant initially brought proceedings in the Federal Court which were dismissed due to failure to comply with orders of the Court – whether applicant seeking to re-agitate matter in the Federal Magistrates Court – where applicant has repeatedly failed to attend Court proceedings – whether application for review was bona fide. |
Federal Magistrates Court Rules 2001, Part 13 Rule 13.02(2)(a)
Samson v Minister for Immigration [2001] FCA 837
SZBIC v Minister for Immigration [2004] FCA 255
Kosi v Minister for Immigration [2003] FMCA 340
Johnson v Gore Wood & Co [2002] 2 AC 1
SZBJM v Minister for Immigration [2003] FMCA 599
Applicant A135/2002 v Minister for Immigration [2003] FCA 708
Applicant 163/2002 v Ministerfor Immigration [2003] FCA 677
| Applicant: | SZBTV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2305 of 2003 |
| Delivered on: | 30 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 30 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
Substantive application dismissed.
Applicant pay the respondent's costs of the Notice of Motion and of the application assessed in the sum of $2,250 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 Ms Margaret O'Brien dated 3 March 2003 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 2305 of 2003
| SZBTV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter arrived in Australia on 2 July 2001. On 26 July 2001 he lodged an application for a protection visa. On 12 November 2001 a delegate of the respondent refused his application and on 27 November 2001 he applied to the Refugee Review Tribunal for review of that decision. On 16 January 2003 the applicant attended a hearing before the Tribunal and on 21 March 2003 the Tribunal handed down a decision affirming the decision of the delegate not to grant the applicant a protection visa.
On 7 April 2003 the applicant filed an application for judicial review and supporting affidavit in the Federal Court South Australia District Registry. The Federal Court proceedings were numbered S419 of 2003. On 26 August 2003 Mansfield J made orders for the conduct of the proceedings. On 3 October 2003 Selway J dismissed the application with costs in the sum of $1,500 because the applicant had not complied with the orders of the court. The applicant was legally represented at all relevant times in the proceedings before the Federal Court of Australia. Notwithstanding the dismissal by Selway J, the applicant filed a further application in this court seeking to agitate and obtain a review of the same decision of the Refugee Review Tribunal.
Grounds of the application are alleged to be that a breach of the rules of natural justice occurred in connection with the making of the decision, the particulars of which are that the applicant was not given an opportunity to respond to certain matters relied on by the Tribunal. The material which was not presented to the applicant was past the hearing date and the applicant was not given a chance to comment upon the material. There are certain other allegations of denial of procedural fairness and an error of law but these are not particularised in any way.
On 11 March, 2004, a directions hearing was held by the Registrar of this court. At approximately 2.15 pm a solicitor employed by the respondent attended at the hearing but there was no appearance by the applicant and orders were made in his absence which included orders setting down for hearing today this application for summary dismissal.
On 15 March, 2004 a letter was sent to the applicant informing him of the orders made and a further letter was sent to him on 22 March 2004 providing him with a copy of the written submissions from Mr Reilly.
Today the matter was called on for hearing at approximately 11.10 am and there was no appearance on behalf of the applicant. The respondent to the proceedings, the applicant today, has withdrawn the grounds of res judicata, issue estoppel and Anshun estoppel that were contained in paragraphs 1(a), (b) and (c) of the Notice of Motion but retains the grounds that the proceedings failed to disclose a reasonable cause of action and that they are an abuse of process of the court.
It does appear to me that the applicant is seeking to re-agitate matters which were or could have been pursued in the previous proceedings that were dismissed. It is an abuse of process to attempt to re-agitate an application previously dismissed: Samson v Minister for Immigration [2001] FCA 837. Mr Reilly also argues that the current proceedings suffer from the same vice as the application which had previously been dismissed by Selway J. That is, it is an application for judicial review devoid of particulars disclosing any substantial basis for the prosecution of the application. It is open to the court to dismiss the application as an abuse of process for this ground alone SZBIC v Minister for Immigration [2004] FCA 255 at [21].
I do have a copy of the application which was filed in the Federal Court. That application contains no particulars whatsoever and to that extent is in contradiction to the application presently before me in respect of which there are some particulars of an alleged breach of the rules of natural justice. The question is whether those particulars take the matter far enough to avoid the type of decision made in SZBIC. Mr Reilly argues that the applicant has had ample opportunity to bring forward any legitimate and bona fide claim and to inform the court and the respondent of the nature and evidential basis for his claims but has not done so. He argues that the Court can infer from this failure and from the failure of the applicant to attend today that the only purpose of making the application was to take advantage of the delay in obtaining a hearing date and that that constitutes an abuse of process in itself: Kosi v Minister for Immigration [2003] FMCA 340 at [18].
Mr Reilly also argues that it would be unfair to the respondent and would bring the administration of justice into disrepute to permit the applicant to litigate his case anew in this court when it has already been disposed of by earlier proceedings and he says that the court should consider the underlying public interests 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 per Lord Bingham at [22] to [34].
In SZBJM v Minister for Immigration [2003] FMCA 599, I held that filing repeated applications with respect to the same Tribunal decision, was an abuse of process. The respondent also argues that there is no reasonable cause of action shown and that I could not be satisfied that there was a real question to be tried and that I should be satisfied that the claims are clearly untenable and cannot succeed: Applicant A135/2002 v Minister for Immigration [2003] FCA 708; Applicant 163/2002 v Ministerfor Immigration [2003] FCA 677.
I think that if the applicant had attended before me today, he may have persuaded me that there was just enough in the application before this court to allow the matter to continue, at least so that he could further particularise the particulars he had already provided of the alleged breach of the requirement to provide him with procedural fairness. But he has not attended. He has had sufficient time to attend and he has had sufficient warning of the proceedings. I believe I am therefore able to infer that the application was only brought to extend by the maximum possible time his stay in Australia. I am able to infer that the application is one which is not made bona fide and is therefore an abuse of process and should not be permitted to remain on foot.
I dismiss the substantive application. I order that the applicant pay the respondent's costs of the notice of motion and of the application assessed in the sum of $2,250 pursuant to Part 21 Rule 21.02.02(2)(a) of the Federal Magistrates Court Rules.
I make a further order that the applicant is not permitted to file any application seeking review of the decision of the Tribunal constituted by Ms Margaret O'Brien dated 3 March 2003 without further leave of this court. This order does not apply to an appeal against these orders.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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