SZDFW v Minister for Immigration

[2004] FMCA 459

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFW v MINISTER FOR IMMIGRATION [2004] FMCA 459

MIGRATION – Review of RRT decision – Application by respondent Minister for summary dismissal – where previous application heard and dismissed in Federal Court – where review to Full Federal Court also dismissed – where application to High Court for special leave to appeal not granted – whether the filing of application for review in Federal Magistrates Court constitutes an abuse of process.

Judiciary Act 1903, s.39B

NAMK of 2002 v MIMIA [2002] FCA 1170
NAMK of 2002 v MIMIA [2003] FCAFC 106
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant: SZDFW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1026 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: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. The Registry not accept any further applications arising out of the decision of the Refugee Review Tribunal of 7 May 2002 from this applicant. This order does not apply to any appeal against this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1026 of 2004

SZDFW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the respondent Minister to dispose summarily with an application filed on 7 April 2004 for review of a decision of the Refugee Review Tribunal made on 7 May 2002 and handed down on 4 June 2002. 

2. The ground upon which the respondent to the application makes this request is that on 26 July 2002 an application under s.39B of the Judiciary Act 1903 was filed in the applicant's name in the Federal Court seeking review of the decision I have referred to and this application was heard by Jacobson J on 19 September 2002.  His Honour dismissed the application with costs and the matter can be found as a reported judgment in NAMK of 2002 v MIMIA [2002] FCA 1170. The applicant appealed the order of Jacobson J and on 15 May 2003 a Full Court of the Federal Court dismissed the appeal with costs. The report of that judgment can be found at NAMK of 2002 v MIMIA [2003] FCAFC 106.

3. On 5 June 2003 the applicant applied for special leave to appeal from the High Court of Australia.  The application for special leave was heard by the High Court on 30 April 2004 before Callinan and Heydon JJ, the applicant did not appear.  The special leave was not granted. 

4. The Minister argues that the application to this court seeking review of the very same decision of the Tribunal that has been all the way up to the High Court is an abuse of process.

5. The applicant has provided the court with an amended application filed on 5 July 2004 and an argument for competency filed on the same day.  The amended application argues that the decision was affected by jurisdictional error in that the Tribunal did not take into account certain facts, and deals with the problem that the applicant faces in filing any application to this court in that he is almost two years out of time.  The applicant's argument for competency is a document not easy to comprehend.  I cite as examples only the first two alleged arguments, the first is:

   (i) The Tribunal in its decision failed in its written statement that a breach of the rules of natural justice, therefore it raises the ground under Section 477, s426 and s427 of the Migration Act 1958.

   (ii) The Tribunal failed to internalise the circumstantial grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and as such has breached section s426(2), s426(3), s427(4) and s440(2)(b) of the Act.

6. It would be showing intense cultural insensitivity for a court to dismiss an application or certain arguments purely on the basis that they are not articulated in a manner which the court would expect from persons for whom English is their first language and who have received a tertiary education.  The court is aware that applicants in relation to migration matters do not have these advantages and is, as it should be, tolerant of the form of arguments put to it. However, a reading of the document before me indicates that it is essentially an argument for a review of the facts that were put before the Tribunal and an argument based upon decisions in other proceedings such as Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 that are not shown to have any real association with this particular case. 

7. The real vice about the application filed on 7 April 2004 is that it is an application for review of a decision that has already been more than thoroughly reviewed.  In those circumstances it is not appropriate for this court to undertake a further examination of the decision of the Refugee Review Tribunal because to do so would in my view be an abuse of process of the court and would bring the court itself into disrepute. 

8. I dismiss this substantive 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 $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I further order that the Registry not accept any further applications arising out of the decision of the Refugee Review Tribunal of 7 May 2002 from this applicant. 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 2004