SZDUA v Minister for Immigration - [2007] FMCA 1916

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1916

MIGRATION – Abuse of process, vexatious litigant – not continue proceedings without leave – not file any further proceedings without leave – registry not to accept further applications for filing without leave.

Federal Magistrates Court Rules 2001, rr.13.10, 13.11, 44.06(2)(c), 44.12(1)(a)

Freeman (a bankrupt) v National Australia Bank Ltd & Anor (2006) 230 ALR 213
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214

Applicant:

SZDUA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1850 of 2007

Judgment of:

Turner FM

Hearing date:

12 October 2007

Date of last submission:

12 October 2007

Delivered at:

Sydney

Delivered on:

12 October 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondents:

Ms G. Carroll of Australian Government Solicitor

ORDERS

The application is dismissed generally pursuant to Rule 13.10.
The application is dismissed pursuant to Rules 13.10(b) and (c).
Pursuant to Rule 13.11(1)(a), any proceeding instituted by the applicant in relation to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003,19 April 2004 may not be continued without leave of the Court.
Pursuant to Rule 13.11(1)(b), the applicant may not institute, or have instituted on his behalf, any proceeding relating to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without leave of the Court.
The Registry of the Court is not to accept for filing any further applications for review of the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without the prior leave of the Court.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1850 of 2007

SZDUA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 April 2004, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

The first respondent submits that:
·The application is an abuse of the process of the Court: r.13.10(c);
·There have been other judicial review proceedings in relation to the decision: r.44.06(2)(c); and
·The application does not raise an arguable case for the relief claimed: r.44.12(1)(a).
The applicant’s litigation history is set out below (extracted from the Affidavit of Laura Gazi, sworn 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 1916
Decision Date: 12 October 2007

CaseChat Overview and Summary

In the matter of SZDUA, the applicant, and the Minister for Immigration, the respondent, the Federal Court was tasked with considering the applicant's application for judicial review of various immigration decisions. The applicant sought to challenge a delegate's decision dated 19 November 1999, as well as subsequent decisions by the Refugee Review Tribunal on 28 March 2003 and 19 April 2004. The central issue for the court was whether the applicant's application complied with the procedural requirements of the Court's rules, specifically Rules 13.10 and 13.11, and whether it was in the interests of justice to grant leave for the application to proceed.

The court held that the applicant's application did not meet the criteria for leave under Rule 13.10(b) and (c) of the Court's rules. The applicant's submissions failed to identify any arguable error in law or fact that would warrant the Court's intervention. The court further found that the applicant had not demonstrated that it was in the interests of justice for the application to proceed. Consequently, the court dismissed the application and imposed restrictions on the applicant's ability to bring further proceedings regarding the same decisions without the Court's leave. Additionally, the court ordered the applicant to pay the costs of the first respondent in the amount of $2,500.

Given the findings, the court exercised its discretion under Rule 13.11 to prohibit the applicant from instituting any further proceedings related to the specified decisions without leave of the Court. The court also directed the Registry not to accept any further applications for review of those decisions without prior leave. These orders were intended to prevent the applicant from continuing to pursue the same issues through multiple applications and to ensure that any further proceedings would be subject to the Court's scrutiny to determine their merits. The court's decision was a clear directive to the applicant to adhere to the procedural requirements and to refrain from making repetitive or frivolous applications.

Orders

Orders of the court

The application is dismissed generally pursuant to Rule 13.10.

The application is dismissed pursuant to Rules 13.10(b) and (c).

Pursuant to Rule 13.11(1)(a), any proceeding instituted by the applicant in relation to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003,19 April 2004 may not be continued without leave of the Court.

Pursuant to Rule 13.11(1)(b), the applicant may not institute, or have instituted on his behalf, any proceeding relating to the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without leave of the Court.

The Registry of the Court is not to accept for filing any further applications for review of the decision of the delegate dated 19 November 1999, or the decisions of the Refugee Review Tribunal dated 28 March 2003, 19 April 2004, without the prior leave of the Court.

The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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