SZFOG v Minister for Immigration
[2005] FMCA 1081
•26 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOG v MINISTER FOR IMMIGRATION | [2005] FMCA 1081 |
| MIGRATION – Review of RRT decision – summary dismissal – order made that no further application seeking review of the decision be filed without leave. |
| Migration Act 1958, s.48B Federal Magistrates Court Rules 2001 |
| Muin v The Refugee Review Tribunal [2002] HCA 30 Lie v The Refugee Review Tribunal [2002] HCA 30 Applicants S503/2003 v Minister for Immigration [2005] FCAFC 133 B41of 2003 v Minister for Immigration [2004] FCA 30 |
| Applicant: | SZFOG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG194 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 July 2005 |
| Date of Last Submission: | 26 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
No further application seeking review of the decision of the Refugee Review Tribunal constituted by Giles Short and made on 6 September 2002 be filed in this court without leave.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG194 of 2005
| SZFOG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me an application by the Minister by way of Notice of Motion issued on 1 July 2005 to dismiss these proceedings pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules on the grounds that they are an abuse of process.
The history of the applicant's proceedings in the Federal Court of Australia is contained in an affidavit of John Stuart Kettle dated 1 July 2005. The applicant received an unfavourable decision from the Refugee Review Tribunal on 2 October 2002 and commenced proceedings in the South Australian District of the Federal Court on 1 July 2003.
Through his then solicitor, Mr Clisby, the applicant sought in November 2003 to have the case transferred to Sydney. Mansfield J refused that application and fixed 12 February 2004 for the hearing of the matter. The applicant then instructed his solicitor to discontinue the application for review and on 12 February 2004 Mansfield J made orders discontinuing the matter and ordering that the applicant pay the respondent's costs.
On 24 January 2005 the applicant applied to this court for an order for review of the same decision of the Refugee Review Tribunal. The grounds of the application are vague and relate to an alleged failure to provide procedural fairness. There is a second paragraph attempting to bring the case within that decided by the High Court in Muin v The Refugee Review Tribunal and Lie v The Refugee Review Tribunal [2002] HCA 30 but no particulars are provided.
In defence of the allegation that this application is an abuse of process the applicant has filed an affidavit. Essentially the affidavit is an attempt by the applicant to establish that he knew nothing about what was going on when his case was discontinued, that he had paid a migration agent a very large sum of money to act on his behalf, that he had no real understanding of what was happening between himself and the migration agent and the solicitor and that he should therefore have an opportunity of having his case heard.
This morning, the applicant was cross examined at some considerable length by Mr Reilly. Mr Clisby, the solicitor who had appeared on his behalf, had filed an affidavit. That affidavit annexed to it a number of exhibits being letters and other documents including an affidavit signed by the applicant. The applicant did not deny his signatures, he did not really deny that he knew that the case was being heard in Adelaide and eventually he did not deny that he knew that the case had been discontinued. His point was that he just failed to understand these procedures and what they meant for him.
I can see that a man who speaks very little English and comes from part of the former Soviet Union may well have considerable difficulty in communicating with a migration agent whose first language is probably not Slavic and whose second language may be English. I am not prepared to discount the fact that the applicant may have paid this migration agent a very large sum of money or that he may not have received value for those payments. I am therefore proposing that the papers in this matter, including a transcript of these proceedings, be referred to the Migration Agents Review Panel for consideration.
In relation to the application I think it is clear that the bringing of another case in this court seeking review of the same decision of the Refugee Review Tribunal that has already been considered by the Federal Court and voluntarily discontinued is an abuse of process. This is the situation that pertained in Applicants S503/2003 v Minister for Immigration [2005] FCAFC 133 where the full bench of the Federal Court said at [4]:
“On 7 November 2002 the appellants brought a proceeding in the Federal Magistrates Court pursuant to s39B of the Judiciary Act 1903 (Cth) seeking certiorari prohibition and mandamus against the Minister and the Tribunal. On 16 June 2003 Driver FM dismissed the application and gave detailed reasons for that decision. An appeal against that decision was discontinued ...” [The applicant then commenced proceedings in the High Court which were remitted to the Federal Court when Jacobson J heard them]
Then at paragraph 5:
“Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process. There could not be a clearer case for the application of those principles (including Anshun estoppel). It is sufficient to refer to the decision of the full court in Wong v Minister for Immigration [2004] FCAFC 242]at [36] – [39]. This proceeding is a transparent attempt to relitigate the same matter that was previously litigated. The attempt should not have gone as far as it did.”
This is not the first time the court has had to deal with a problem caused by the alleged fault of a migration agent. It has been made clear by Dowsett J in B41of 2003 v Minister for Immigration [2004] FCA 30 that failures of a migration agent do not constitute grounds for alleging jurisdictional error on the part of the Tribunal. It may be that if the applicant has been badly served by his migration agent the Minister will hear sympathetically an application under s.48B of the Migration Act 1958 (Cth) (the “Act”). In the meantime court proceedings relating to the decision must be brought to an end.
I dismiss the principal application as requested in the notice of motion and I order that the applicant pay the respondent's costs which I assess in the sum of $2,000.
As requested I will also make an order that no further application seeking review of the decision of the Refugee Review Tribunal constituted by Giles Short and made on 6 September 2002 be filed in this court without leave.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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