SZEGE v Minister for Immigration

[2007] FMCA 1445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1445

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where application already heard and decided.

PRACTICE & PROCEDURE – Abuse of process – where application for review previously heard and decided – application dismissed as abuse of process – application has no reasonable prospects of success.

Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001, r.44.12

SZEGE v The Minister for Immigration [2005] FMCA 527
SZEGE v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 783
SZEGE v Minister for Immigration & Anor [2006] FMCA 946
SZEGE v The Minister for Immigration & Multicultural Affairs [2006] FCA 1316

Applicant: SZEGE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2264 of 2007

Judgment of: Scarlett FM

Hearing date: 13 August 2007

Date of Last Submission: 13 August 2007

Delivered at: Sydney

Delivered on: 13 August 2007

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Moloney

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is dismissed under Rule 44.12.

2. The Application is dismissed as an abuse of process.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2264 of 2007

SZEGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The substantive application is an application for the review of a decision by the Refugee Review Tribunal. The Tribunal decided on 26^th June 2007, that it did not have jurisdiction in the matter. That is because the Tribunal had already reviewed the decision of the delegate that was made on 21^st April 2004. 

2. After the Applicant had found that his application for visa had been refused he sought review of the decision for the Refugee Review Tribunal, and the Tribunal confirmed the delegate's decision on 30^th June 2004.  The Applicant then sought review of that decision from the Federal Magistrates Court and on 21^st March 2005, Mowbray FM dismissed the application. The citation for that is SZEGE v The Minister for Immigration [2005] FMCA 527.

3. The Applicant then appealed. On 26^th May 2005, Emmett J dismissed the appeal. The citation for that decision if SZEGE v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 783.

4. The Applicant then sought special leave to appeal in the High Court of Australia. That application was dismissed on 9^th November 2005.  The Applicant then commenced proceedings in the Federal Magistrates Court in respect of the earlier Tribunal decision. That application came before me and on 21^st June 2006 I dismissed the application with costs.  The citation for that decision is SZEGE v Minister for Immigration & Anor [2006] FMCA 946.

5. The Applicant then appealed. On 5^th October 2006, Moore J dismissed the application for leave to appeal and the purported appeal with costs.  The citation to that decision is SZEGE v The Minister for Immigration & Multicultural Affairs [2006] FCA 1316.

6. The Applicant then, again, sought special leave to appeal to the High Court of Australia.  The application for special leave was dismissed by Hayne J, on 24^th May 2007.

7. The Applicant then brought a fresh application for review of the delegate's decision to the Refugee Review Tribunal.  That application was made on 12^th June 2007. 

8. The Tribunal addressed the question of whether the Tribunal had jurisdiction to review the delegate's decision on the basis of the application for review.  The Tribunal found that the delegate's decision was an RRT reviewable decision but made these findings which I will quote:

   However, the applicant has previously lodged an application for review of the same decision. The Tribunal accepted that application and conducted a review.  The Tribunal has, therefore, already discharged its functions under s.414 to review the decision.  As mentioned earlier, the applicant has unsuccessfully sought judicial review of the Tribunal's decision.  As the Tribunal has already discharged its functions under the Act to review the delegate's decision of 21 April 2004, it no longer has jurisdiction in relation to that decision.  Having reached this conclusion, the Tribunal finds it unnecessary to consider whether the review application, lodged on 12 June 2007, was lodged outside the prescribed time period and is, therefore, invalid.[1]

   [1] Refugee Review Tribunal decision 071491837 signed 26 June 2007 page 3

9. This is an application that has, and never had, any reasonable prospects of success or any prospects of success whatsoever. The entire proceedings are vexatious and abuse of process, and were clearly brought about for a collateral purpose, namely, to misuse the Tribunal system and the Court system to enable the Applicant to stay in Australia after he has exhausted all legitimate means of review. There is no jurisdictional error.  It is cases like this which come before this Court all too frequently that raise the question as to why this Applicant is still in possession of a bridging visa.  That is, perhaps, a matter that the Minister might like to consider. 

10. I propose to dismiss the application. 

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

Associate:  V. Lee

Date:  21 August 2007