SZCQH v Minister for Immigration
[2005] FMCA 1245
•26 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCQH v MINISTER FOR IMMIGRATION | [2005] FMCA 1245 |
| MIGRATION – Notice of Motion – where applicant did not attend – application for summary dismissal on ground of no reasonable cause of action – whether or not the application is bound to fail. |
| Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(a), Rule 13.10 |
| Zubair v Minister for Immigration [2004] FCAFC 248 Minister for Immigration v Ahmed [2005] FCAFC 58 |
| Applicant: | SZCQH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULUTRAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1475 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 August 2005 |
| Date of Last Submission: | 26 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The substantive application be dismissed;
No further application by the applicant to review the decision of a delegate of the respondent, dated 30 June 2003, concerning the applicant (file number CLF2003/19039), or a decision of the Refugee Review Tribunal, handed down on 28 January 2004, concerning the applicant (file number N03/46948) be accepted for filing except with leave of the court.
The applicant pay the respondent's costs fixed in the sum of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1475 of 2005
| SZCQH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me an application filed by the respondent on 17 June 2005 that the substantive application which was filed on 7 June 2005 be dismissed, pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that no reasonable cause of action is disclosed, or in the alternative, the proceeding or claim for relief is frivolous or vexatious, and further, or in the alternative, the proceeding is an abuse of process. The notice of motion was served on the applicant by ordinary post in a letter sent on 23 June 2005, and the respondent's written submissions were sent to the applicant by express post on 23 August 2005. Both letters were sent to the applicant at the address for service contained in the application to this court which is in Griffith.
The application by the respondent was set down for hearing at 2.15 on 26 August 2005 and at 2.45 pm the applicant to the substantive proceedings and the respondent to the notice of motion had still not arrived. He was called outside the court but did not appear. The applicant, unlike many, did not give a mobile telephone number at which he could be contacted. The basis for the notice of motion is that the applicant has already had his application for a protection visa considered by the Minister's delegate, the Refugee Review Tribunal, and then sought review of the unfavourable decision of the RRT from this court.
The applicant was required by orders of this court to file an amended application but he did not do so until one day before some proceedings in the court for non-compliance with the court orders. This took place on 3 December 2004 when a decision was given dismissing the substantive application. On 22 December 2004 the applicant applied for leave to appeal the decision of the Federal Magistrate made on 3 December. The appeal was listed for hearing on 12 April 2005 before a judge of the Federal Court. It was dismissed with costs. On 2 May 2005 the applicant applied for special leave in the High Court. On 31 May 2005 the special leave application was deemed abandoned by the High Court. After this excursion through the court system the applicant then filed an application for judicial review of the delegate's decision and this is the matter that is before the court by way of the application of 7 June 2005.
It is now well accepted that a valid Tribunal decision will override any defects in a primary decision where the applicant has been given the proper opportunity to rehearse his claims for a protection visa. This view of the law has been confirmed by the Full Bench of the Federal Court in Zubair v Minister for Immigration [2004] FCAFC 248 and Minister for Immigration v Ahmed [2005] FCAFC 58, which specifically approved the Zubair decision.
In the circumstances there is no merit whatsoever in the applicant's application. It is bound to fail. The application itself would, to my mind, be an abuse of the process of this court. In the absence of any argument from the applicant to the substantive proceedings I propose to exercise my discretion to proceed as I have done under order 13.03A(d) and order that the proceedings be dismissed pursuant to Part 13 Rule 13.10(a) and (c).
The Minister has asked me also to make an order that no further application by the applicant to review the decision of the delegate of the respondent or a decision of the Refugee Review Tribunal be accepted for filing except without leave of the court. In view of the litigation history, I think this is an appropriate order to make. The Minister has also asked that the applicant pay the respondent's costs in a fixed amount on an indemnity basis. The Minister suggests a figure of $4500 on an indemnity basis and $2500 on a party and party basis. I think there is some difficulty in making an assessment of costs on an indemnity basis because an indemnity is intended to repay a person for the full amount of, but no more than, the costs expended. Mr Reynolds, who appears for the Minister, has not been able to provide me with a document setting out how those costs are calculated. I think the best thing to do in all the circumstances is to make an order pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules that the applicant to the substantive proceedings pay the respondent's costs fixed in the sum of $3000.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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