SZDQO v Minister for Immigration

[2006] FMCA 226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 226

MIGRATION – Application for summary judgment – whether the application is an abuse of process – where the applicant did not appear.

Federal Magistrates Court Rules 2001, Part 13 Rule 13.03A(c)

Applicant: SZDQO

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 19 of 2006

Judgment of: Raphael FM

Hearing date: 10 February 2006

Date of Last Submission: 10 February 2006

Delivered at: Sydney

Delivered on: 10 February 2006

REPRESENTATION

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Substantive application dismissed.

2. That the Registry not accept any further application seeking judicial review of the decision of the Refugee Review Tribunal in matter number NO3/46060 made on 8 April 2004 or the decision of the delegate made on 27 February 2003

3. Applicant to pay the respondent's costs assessed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 19 of 2006

SZDQO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This matter came before Registrar McIllhatton for a first court date on 7 February 2006.  The applicant was in attendance.  At that time the respondent Minister pointed out to the Registrar that the application being made by the applicant was an application in respect of a decision that had already been the subject of proceedings in this court, the Federal Court and the High Court of Australia. As such, the application would appear to be one amenable to an application for summary judgment on the basis that it was an abuse of process.  The respondent requested the Registrar to fix an early date for such an application and, in consultation with my associate, the date of today was fixed at

   
   

   9.30 am.

2. The Registrar requested the respondent to file and serve upon the applicant a notice of motion and a notice of objection to competency, as well as an outline of submissions.  This was done by way of an express post letter sent on 8 February 2006 to the applicant's post office box.  I am informed by Ms Brauer, who appears on behalf of the respondent, that this was done at the specific request of the applicant, who was offered the opportunity of receiving these documents by courier.

3. The matter was set down for hearing at 9.30am today, 10 February 2006. At 9.45am the applicant had not appeared, and at 9.50 am his name was called outside the court but he was not in attendance. I am therefore inclined to dismiss this matter pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules, but I would note that if the applicant had appeared it was more likely than not that I would have granted the Minister her request to dismiss the matter summarily on the grounds that it constituted an abuse of the processes of this court.

4. As I have said, this was an application that has already been through every Federal Court.  The applicant did not attend the hearing before the Refugee Review Tribunal, and to the extent that he complains about his case not being properly heard or investigated, much of the responsibility for this must lie with him.  In any event, he raised these matters both before Federal Magistrate Scarlett and his Honour Conti J on appeal.

5. The substantive application is dismissed.  I would also order that the Registry not accept any further application from the applicant without leave of the court, and I will refine that request by the respondent so that the order will be that the Registry not accept any further application seeking judicial review of the decision of the Refugee Review Tribunal in matter number NO3/46060 made on 8 April 2004 or the decision of the delegate made on 27 February 2003. I order that the applicant pay the respondent's costs which I assess in the sum of $1,000.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  16 February 2006