SZDNE v MIMIA

[2004] FMCA 717

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNE v MINISTER FOR IMMIGRATION [2004] FMCA 717

MIGRATION – Review of RRT decision – application by respondent Minister for summary dismissal – whether no reasonable cause of action has been disclosed by applicant – whether the proceeding is vexatious or an abuse of process – where RRT decision already dismissed by Federal Court and Full Federal Court – where review of original RRT decision subsequently lodged with Federal Magistrates Court – where applicant claims that a basis for review exists which was not previously argued before the courts.

Federal Magistrates Court Rules 2001

Chan v MIEA (1989) 169 CLR 379
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
Applicant A210/2002 v MIMIA [2004] FCA 286
SZBWF v the Minister [2004] FMCA 83
Wong v MIMIA (2004) 204 ALR 722

Applicant: SZDNE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1344 of 2004

Delivered on: 14 October 2004

Delivered at: Sydney

Hearing date: 14 October 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr I Archibald

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(b) and (c) of the Federal Magistrates Court Rules.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1344 of 2004

SZDNE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application made under Rule 13.09 of the Federal Magistrates Court Rules for orders that the application filed on 7 May 2004 be dismissed pursuant to Part 13, Rule 13.10(b) and/or 13.10(c) of those rules or in the alternative, that the application be dismissed pursuant to Rule 13.10(a) of the Rules on the ground that no reasonable course of action is disclosed.

2. I am grateful to Mr Chami, who appears on behalf of the applicant to the notice of motion - the respondent to the proceedings - for his helpful outline of submissions from which much of the history of these proceedings is taken. 

3. The applicant arrived in Australia in 1994 and first sought asylum in 1995. His application was refused by a delegate in 1997 whereupon he appealed to the Refugee Review Tribunal who decided to uphold the decision of the delegate in 1998. In December 1998 he sought review of the decision of the Tribunal from the Federal Court. The matter was heard by Tamberlin J and his decision is reported at (1999) 57 ALD 613. That decision was appealed to a Full Bench of the Federal Court which dismissed the appeal on 19 November 1999 under the same name with the citation [1999] FCA 1620.

4. Some 17 months thereafter, without having previously been removed from the country, the applicant joined the Muin and Lie class action.  He remained within that class action…