SZDJA v Minister for Immigration

[2006] FMCA 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJA v MINISTER FOR IMMIGRATION [2006] FMCA 38

MIGRATION – Dismissal of application to set aside delegate’s decision where RRT review had already been the subject of unsuccessful judicial review proceedings.

Applicant: SZDJA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3131 of 2005

Judgment of: Raphael     FM

Hearing date: 16 January 2006

Date of Last Submission: 16 January 2006

Delivered at: Sydney

Delivered on: 16 January 2006

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY 

SYG3131 of 2005

SZDJA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is the second time that this applicant has appeared before me. 

   
   

   I first saw him on 17 September 2004 when I gave judgment dismissing his application for judicial review of a decision of the Refugee Review Tribunal dated 1 May 2002 handed down on 29 May 2002.

2. The applicant was not satisfied with my decision and appealed it to the Federal Court where his appeal was dismissed on 16 November 2004 by his Honour Jacobson J.

3. The applicant was equally dissatisfied with the views of his Honour and so took the matter up to the High Court of Australia where on 6 October 2005 special leave to appeal was refused, Gummow J saying at [2] of the transcript:

   We have reviewed the applicant's written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court.  There are no prospects of success in any appeal against the decision of Jacobson J.  Accordingly, special leave to appeal is refused.

4. Undeterred by this expression of judicial opinion from the highest court in the land, the applicant, on 27 October 2005, took out an application seeking judicial review of the decision of the delegate from which he had already sought review from the Refugee Review Tribunal.  Interestingly, when he came before me today and argued why I should not dismiss the application he did not talk at all about the delegate, referring only to the Tribunal.

5. It has now become a distressingly familiar occurrence to see applications of this type being brought.  Recent legislation has made an attempt to block the process but the court is left with a number of outstanding cases.  I made it clear on previous occasions that I am satisfied that the bringing of an application to set aside the decision of a delegate where an appeal has already been made for review to the Refugee Review Tribunal and then the judicial review processes have followed is an outright abuse of the processes of this court.  I have no hesitation in repeating myself on this occasion.

6. The respondent seeks an order that the applicant be declared a vexatious litigant.  I am not prepared to grant that order.  I do not think that I have quite enough evidence there for and in any event the declaration will not cure the principal vice which is that the applicant is bound to appeal this decision and then to seek leave to appeal the decision of the Federal Court to the High Court of Australia.

7. What I will do, however, is to make an order that the applicant may not institute any proceedings against the Minister for Immigration Multicultural and Indigenous Affairs and her delegate or the Refugee Review Tribunal in respect of his application for a protection visa without leave of the court.

8. I dismiss the substantive application and I order that the applicant pay the respondent's costs which I assess in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael    FM

Associate: 

Date: