SZDPR v Minister for Immigration
[2004] FMCA 475
•26 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPR v MINISTER FOR IMMIGRATION | [2004] FMCA 475 |
| MIGRATION – Application to vacate orders to dismiss made in absence of party – where party did not provide details of change of address for service – where application had already been determined in the courts. |
| Applicant: | SZDPR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1513 of 2004 |
| Delivered on: | 26 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application to vacate original orders dismissed.
In addition to the amount of costs previously ordered the applicant pay the respondent's costs assessed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1513 of 2004
| SZDPR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the applicant effectively for me to set aside or vacate certain orders which I made on 8 June 2004 when I dismissed an application filed in this court on 20 May 2004 for review of a decision of the Refugee Review Tribunal handed down on 20 June 2002.
On 8 June 2004 the applicant did not attend. He tells me today that the reason he did not attend was because he did not receive a letter advising him of the notice of motion. A letter was sent to him on 2 June 2004 by express post but the applicant had changed his address and although he had made arrangements for letters to be forwarded to him a letter was not received by him until 9 June. I am prepared to accept the evidence of the applicant that this was the case.
Unfortunately for the applicant he had stated as his address for service on his application the address to which the respondent's solicitors sent the original copy of the notice of motion and the applicant admitted in evidence today that he had not filed a notice of change of address. The fault was, therefore, entirely that of the applicant.
The history of the applicant's attempts to remain in this country on the basis that he is a refugee following the decision of the Tribunal is not good. He first took proceedings in the Federal Court which were heard before Hill J and were the subject of orders made on 23 October 2002. His Honour heard the applicant who appeared in person, and prepared a judgment of some six pages dismissing the application. The applicant then appealed to a Full Court of the Federal Court but did not attend the hearing of the appeal which was dismissed. Thereafter, the applicant filed a draft notice of appeal with the High Court of Australia but the High Court on 21 October 2003 determined that special leave to appeal ought not to be granted because there were insufficient prospects of success to warrant the grant of special leave.
It will be seen that some eight months prior to his filing of the application in this court the applicant had exhausted what, to most people, would be considered the full extent of his appeal rights in Australia. The basis of the application that he filed in this court was that the Refugee Review Tribunal had not provided him with natural justice or procedural fairness. The problem with that argument is that the applicant did not appear at the hearing before the Tribunal because, he told me today, he knew the Tribunal would find against him. Of course, that is his privilege but it is difficult for him then to argue that he was not extended the usual courtesies of natural justice or procedural fairness.
Given that the applicant was the author of his own misfortunes in relation to the first hearing of the application to dismiss and given that I cannot see that there are any prospects of success in his application, and given that his application is, in any event, an abuse of process being an application in respect of a decision that has already been considered by the Federal Court, the Full Federal Court and the High Court of Australia, I am not inclined to make the order requested. I dismiss this application to vacate my original orders.
I order that in addition to the amount of costs previously ordered, that the applicant pay the respondent's costs assessed in the sum of $500.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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