SZGIM v Minister for Immigration
[2005] FMCA 1240
•11 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIM v MINISTER FOR IMMIGRATION | [2005] FMCA 1240 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision. PRACTICE & PROCEDURE – Abuse of process – costs – indemnity costs – circumstances justifying order – competency – Notice of objection to competency. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A, 477(1A)
Colgate Palmolive Pty Limited v Cussons Limited (1993) 46 FCR 225.
| Applicant: | SZGIM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1287 of 2005 |
| Delivered on: | 11 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 August 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed as an abuse of process.
The Application is not competent.
The Applicant is to pay the Respondent’s costs on an indemnity basis fixed in the sum of $4,000.00. I allow two (2) months to pay.
The Applicant is restrained from commencing any further proceedings for review of the Refugee Review Tribunal’s decision made on
3 March 2003 and handed down on 25 March 2003 without leave of the Federal Magistrates Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1287 of 2005
| SZGIM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal handed down on 25 March 2003. It is an abuse of process. It is an abuse of process because the Applicant's application for review of this decision has already been heard and decided.
The facts are that the Applicant made his original application to the Federal Court on 31 March 2003. That application was made within time. I see from the affidavit of Melissa Inga Gwendolyn Asimus that on 2 May 2003 Emmett J in the Federal Court transferred the matter to the Federal Magistrates Court.
The Applicant filed an amended application and the proceedings were heard before Raphael FM on 20 July 2004. On that date, Raphael FM dismissed the application.
On 9 August 2004 the Applicant filed a notice of appeal to the Full Court of the Federal Court. That appeal was heard by the Honourable Moore J, exercising the jurisdiction of the Full Court of the Federal Court on 26 October 2004. On 3 November in that year his Honour Moore J, dismissed the appeal with costs.
The Applicant then, on 26 November 2004, filed an application for special leave to appeal to the High Court of Australia. On 21 April 2005 their Honours McHugh and Hayden JJ dismissed the application for special leave to appeal.
Undeterred by this latest dismissal of the proceedings, the Applicant started again. He filed an application in the Federal Magistrates Court which is dated the 18 May 2005. In that application he seeks a review of that same decision of the Refugee Review Tribunal that was handed down on 25 March 2003. As his application for review of that decision has already been dismissed by the Federal Magistrates Court, and his appeal against that decision has already been dismissed by the Full Court of the Federal Court, and his application for special leave to appeal to the High Court of Australia has been dismissed, the Applicant has no grounds for bringing the present application.
The Federal Magistrates Court, it need hardly be said, does not sit in appeal against decisions of the High Court of Australia. In any event, the Respondent has filed a Notice of Objection to Competency. This application has been filed outside the 28 day time limit set by
s.477 (1A) of the Migration Act. The application is not competent. More importantly however, it is an abuse of process.
The application is dismissed as an abuse of process. The application is not competent as it has been filed outside the time prescribed by
s.477 (1A) of the Migration Act. I have previously made it clear that such applications will attract an order for costs on an indemnity basis and I rely on the decision of Colgate Palmolive Pty Limited v Cussons Limited (1993) 46 FCR 225
I accept the fact that it has been very difficult for the Applicant to obtain funds. I take into account the fact that the Applicant is currently unemployed and he does not have the funds presently available to pay the Respondent’s costs. However, that is not a ground for the Court not to make an order for costs but it is a matter that I would take into account as far as time to pay is concerned.
Costs usually follow the event, and there does not appear to me to be a reason why the Respondent should not obtain a costs order. I will allow time to pay.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 August 2005
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