SZEUC v Minister for Immigration
[2006] FMCA 697
•11 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 697 |
| MIGRATION – Practice and Procedure – application for judicial review of Refugee Review Tribunal decision – application to seek that an order made pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) be set aside. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.01A, 16.05 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 483A |
| SZEUC v Minister for Immigration [2005] FMCA 135 SZEUC v Minister for Immigration [2005] FCA 594 SZEUC v Minister for Immigration [2005] HCA Trans 646 |
| Applicant: | SZEUC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2837 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 11 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2006 |
REPRESENTATION
| Applicant: | The applicant appeared with the assistance a Gujarati interpreter |
| Advocate for the Respondents: | Ms K Crawley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 9 February 2006 seeking to have the order of 9 February 2006 set aside is dismissed.
The respondent’s interlocutory application filed on 27 October 2005 is upheld on the basis that the new application is an abuse of process.
The application for judicial review filed on 5 October 2005 is declared as incompetent.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal of Mr Rodney Inder, file number NO4/48144 made on 19 April 2004 and handed down on
13 May 2004, or the decision of the delegate of the Minister for Immigration made on 15 December 2003, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $1,550.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2837 of 2005
| SZEUC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 9 February 2006, the applicant moves the Court for orders seeking that the previous orders of this Court made on 9 February 2005, dismissing the matter due to the failure of the applicant to appear pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), be set aside.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 October 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 19 April 2004 and handed down on 13 May 2004, affirming a decision of the delegate of the first respondent made on 15 December 2003, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZEUC”.
Litigation history
The relevant litigation history of the applicant is set out in the affidavit of Kathleen Crawley, solicitor, sworn on 26 October 2005. I adopt the following paragraphs for the purposes of this judgment:
4.On 13 May 2004, the RRT affirmed a decision not to grant a protection visa to the Applicant.
5.On 10 June 2004, the Applicant applied for judicial review of the RRT decision in the Federal Magistrates Court of Australia.
6.On 8 February 2005, Federal Magistrate Lloyd-Jones of the Federal Magistrates Court of Australia summarily dismissed the Applicant’s application.
7.On 23 February 2005, the Applicant filed a purported notice of appeal from the judgment of Federal Magistrate Lloyd-Jones referred to in the preceding paragraph.
8.On 2 May 2005, his Honour Justice Gyles dismissed the appeal as incompetent.
9.On 27 May 2005, the Applicant filed an application for special leave to appeal in the High Court.
10.On 30 August 2005, the High Court of Australia (constituted by Justices McHugh and Heydon) dismissed the Applicant’s application for special leave to appeal.
Reasons
The applicant appeared with the assistance of a Gujarati interpreter and his Australian-born wife. It was agreed that the applicant’s wife would address the Court on behalf of her husband, although she stated that her husband had a reasonably good understanding of English, provided that one’s delivery was slow and distinct.
The applicant’s wife explained to the Court that the reason they failed to appear at the scheduled interlocutory hearing on 9 February 2006 at 10.30am was that they had received a letter from the first respondent’s solicitors indicating the matter was to be heard at 11.30am. The respondents’ solicitor submitted to the Court two letters, the first of which was forwarded to the applicant, attaching a copy of the respondents’ outline of submissions and dated 6 January 2006. That letter incorrectly stated that the hearing was at 11.30am. The second letter was sent by the respondents’ solicitors by express post on
2 February 2006. It said that their previous letter had incorrectly stated the hearing time as 11.30am and corrected this to 10.30am. The applicant denies receiving the second letter.
The applicant appeared before me at a directions hearing on
9 November 2005, when the interlocutory hearing was scheduled and sealed orders were given to him, recording the date, time and location of the hearing. Those orders clearly state that the hearing was at 10.30am on 9 February 2006, Court 6C, John Maddison Tower.
I indicated to the applicant that if his matter was reinstated by setting aside my orders of 9 February 2006, he would need to address the Court as to why the matter should not be summarily dismissed as an abuse of process. The matter had previously been before me in this Court and dismissed on the basis that no jurisdictional error was present in the Tribunal decision: SZEUC v Minister for Immigration [2005] FMCA 135. That decision was subsequently appealed in the Federal Court, and dismissed by His Honour Gyles J: SZEUC v Minister for Immigration [2005] FCA 594. The applicant then sought a special leave application in the High Court which was refused by Their Honours McHugh and Heydon JJ on 30 August 2005, on the ground that the appeal had no prospect of success: SZEUC v Minister for Immigration [2005] HCA Trans 646.
I indicated to the applicant that I would adjourn, so that he and his wife could discuss if they wished to put before the Court any submissions regarding relevant issues that would justify the matter being re-heard, especially in the light of the past litigation history.
After a brief adjournment, the applicant’s wife indicated to the Court that she wished to review the files and the previous Court decisions to determine whether any further relevant material was available in India to support her husband’s application. It was briefly explained to the applicant the role of the Court and the issues that it could consider in respect of the roles of the delegate and the Tribunal. It was explained that this Court does not have the power to undertake a merits review of the decision. The applicant made some further statements, firstly in respect of hardship faced because the wife was involved in litigation in Victoria concerning the kidnapping of a child, and also because of the possibility that the applicant may have to return to India.
I am satisfied that despite the deep emotional concern of both the applicant and his wife concerning his possible return to India, they do not have any further arguments or issues concerning jurisdictional error of the Tribunal in its decision-making process. Even if I did reinstate the matter by setting aside the orders made on 9 February 2006, the applicant has not presented any issues that have not previously been considered by the Courts. I am satisfied that the first respondent’s interlocutory application should be upheld on the basis that the new application for judicial review filed on 5 October 2005 is an abuse of process and is declared as incompetent.
I am satisfied that an order for costs should be made in this matter on an indemnity basis. I order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $1,550.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 May 2006
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