SZCWS v Minister for Immigration
[2004] FMCA 460
•16 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWS v MINISTER FOR IMMIGRATION | [2004] FMCA 460 |
| MIGRATION – Review of RRT decision – application by respondent Minister for summary dismissal on the basis that the proceedings are vexatious, an abuse of process or not competent – where applicant did not attend Tribunal hearing – where an application was previously heard and dismissed in the Federal Court – where applicant lodged an appeal of that decision but later discontinued those proceedings – whether the filing of an application for review in the Federal Magistrates Court constitutes an abuse of process. |
Migration Act 1958 (Cth), s.477(1A)
SZDFW v Minister for Immigration [2004] FMCA 459
| Applicant: | SZCWS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 598 of 2004 |
| Delivered on: | 16 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 16 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The Registry not accept any further applications from this applicant arising out of the decision of the Refugee Review Tribunal dated 10 December 2002. This order does not apply to any appeal against this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 598 of 2004
| SZCWS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter comes before me by way of an application by the respondent Minister that the application for judicial review filed on 6 March 2004 be dismissed on the grounds that the proceedings are vexatious or alternatively that they are an abuse of process or alternatively that they are not competent by virtue of being filed some two years after the decision of the Refugee Review Tribunal of 10 December 2002, handed down on 14 January 2003 and therefore in breach of s.477(1A) of the Migration Act 1958 (Cth).
The applicant did not attend the hearing before the Refugee Review Tribunal but when an adverse decision was given he sought review of that decision from the Federal Court by filing an application numbered NN98 of 2003 on 10 February 2003. He did not pursue that application with vigour and in fact he did not appear at two directions hearings. On 20 March 2003 Allsop J dismissed the application pursuant to Order 10 Rule 3(ii) of the Federal Court Rules 1976. The applicant sought to appeal from that decision of Allsop J on 1 April 2003 but on 12 May 2003 he filed a notice of discontinuance.
Almost a year later on 6 March 2004 the applicant filed this application which the Minister now seeks to have struck out.
Before me today the applicant argued that he had been ill and that this was the reason why he had not dealt with the matter previously. He produced some documents from the Prince of Wales Hospital but these relate to an illness which he appears to have suffered in March 2004 and does not in any way relate to any period during which his proceedings before the Federal Court were being considered.
The applicant also provided me with a document entitled ‘Applicant's Arguments for Competency’. I have looked at this document and note with some concern that it appears to be identical to a document which I discussed in SZDFW v Minister for Immigration [2004] FMCA 459 an application of a similar type heard immediately before this one. In my judgment in that case I made some comments about the document which apply equally here so far as the document does not really address the issues in the particular decision of the Tribunal in this case. It is somewhat disconcerting to be faced with two identical documents and two different applicants and leads one to the inevitable conclusion that someone is producing these documents for distribution and that they are not the product of the individuals who are appearing before this court.
Whilst I appreciate that the applicant has never articulated his grounds for seeking review of the decision of the Tribunal this does not seem to me to be anybody's fault but his own. He had the opportunity to appear before the Federal Court and the opportunity to appear before the Full Bench of that court but he did not take it. He now seeks to have the matter reviewed in this court.
It is clear from decisions of this court and of the Federal Court that the re-agitation of proceedings that have already been dealt with constitutes an abuse of process and for that reason I propose to dismiss the application pursuant to Part 13 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 $1,500 pursuant to Part 21 Rule 21.01(2)(a) of the Federal Magistrates Court Rules. I also order that the Registry not accept any further applications from this applicant arising out of the decision of the Refugee Review Tribunal dated 10 December 2002. This order does not apply to any appeal against this order.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 July 2003
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