SZDQZ v Minister for Immigration

[2008] FMCA 1413

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1413

MIGRATION – RRT decision – repeated applications for judicial review – abuse of process – application dismissed for non‑attendance at First Court Date – reinstatement application refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 13.03A(e), 16.05(2)(a)
Federal Magistrates Act 1999 (Cth), ss.69, 69(3)(b)

SZDQZ v Minister for Immigration & Citizenship & Anor [2007] HCATrans 761
SZDQZ v Minister for Immigration & Citizenship [2007] FCA 457
SZDQZ v Minister for Immigration & Anor [2007] FMCA 86
SZDQZ v MIMA & Anor [2006] HCATrans 506
SZDQZ v Minister for Immigration & Multicultural Affairs [2006] FCA 130
SZDQZ v Minister for Immigration [2005] FMCA 1115

Applicant: SZDQZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1970 of 2008

Judgment of: Smith FM

Hearing date: 30 September 2008

Delivered at: Sydney

Delivered on: 30 September 2008

REPRESENTATION

Counsel for the Applicant: No appearance by or on behalf of the Applicant

Counsel for the First Respondent: Ms M Palmer

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 26 August 2008 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $500. 

3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 12 December 2002, or for review of the decision of the delegate of the first respondent dated 19 February 2002, or for review of any other administrative decision or action by any person or tribunal relating to the application for a protection visa received on 21 November 2001, shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1970 of 2008

SZDQZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in 2001, and soon lodged an application for a protection visa.  It was refused by a delegate on 19 February 2002, and the applicant appealed to the Refugee Review Tribunal.  However, he did not attend a hearing to which he was invited, and the Tribunal affirmed the delegate’s decision on 12 December 2002.  Since that time, the applicant has stayed in the country by engaging in litigation.  The substantive application in this matter commences his fourth proceeding for judicial review of the Tribunal’s 2002 decision.  It is unclear to me why the Minister has allowed this state of affairs to continue. 

2. The applicant’s first judicial review application was commenced in the High Court in 2003, and was remitted to the Federal Court where it was dismissed by Emmett J on 30 April 2004. 

3. His second application was commenced in this Court, and was dismissed by Nicholls FM on 29 August 2005 (SZDQZ v Minister for Immigration [2005] FMCA 1115). An appeal was dismissed by Madgwick J on 13 February 2006 (SZDQZ v Minister for Immigration & Multicultural Affairs [2006] FCA 130). An application for special leave to appeal was refused by the High Court on 7 September 2006 (SZDQZ v MIMA & Anor [2006] HCATrans 506).

4. The applicant’s third application was commenced in this Court, and was dismissed by Barnes FM on 24 January 2007 on grounds of competency (SZDQZ v Minister for Immigration & Anor [2007] FMCA 86). An application for leave to appeal was dismissed by Moore J on 27 March 2007, after the applicant did not attend a listing (SZDQZ v Minister for Immigration & Citizenship [2007] FCA 457). An application for special leave to appeal was refused by Hayne and Crennan JJ on 11 December 2007 (SZDQZ v Minister for Immigration & Citizenship & Anor [2007] HCATrans 761).

5. The present application was filed in this Court on 30 July 2008.  It apparently seeks to argue with the merits of the Tribunal’s decision again.  However, it is doomed to failure on grounds of res judicata and discretion, since in my opinion it is clearly an abuse of process.

6. The application was listed at a first court date on 26 August 2008, but the applicant did not attend.  Instead, the Court received a facsimile requesting that the applicant be permitted to attend the hearing by way of a mobile telephone number, since “I am living in Griffith”. I refused that application. In my opinion, it is doubtful whether it was permitted by s.69(3)(b) of the Federal Magistrates Act 1999 (Cth). Moreover, in the circumstances it was also inappropriate to permit such an attendance, particularly since the applicant had been put on notice by the Minister that an application for summary dismissal would be made at the first court date.

7. I therefore dismissed the substantive application under r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for absence from hearing. I awarded costs to the Minister, and ordered the Minister’s solicitor to serve the applicant with a copy of the order and inform him of the provisions of r.16.05(2)(a).

8. The applicant has now filed an interlocutory application seeking to set aside my default order.  The affidavit in support does not provide any prospects for the substantive application.  In my opinion, it would be futile to reinstate the initiating application in this matter in the circumstances I have sketched above.  I therefore dismiss the application to set aside my orders made on 26 August 2008. 

9. The applicant did not attend today, but at the request of the Minister I have proceeded in his absence under r.13.03A(e).

10. In the circumstances of the applicant’s history of litigation, I consider it appropriate to direct the Registry not to accept any further application to this Court relating to the applicant’s protection visa application, without first obtaining the leave of the Court.  This will require the applicant to attend before me to show that he has a legitimate purpose in bringing such an application, and that it has arguable merits. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  10 October 2008