SZHAZ v Minister for Immigration

[2007] FMCA 95

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 95

MIGRATION – Where application made in Sydney after review of decision in Melbourne had been dismissed under Part 13 Rule 13.03A(c) – whether application is abuse of process.

Federal Magistrates Court Rules 2001

Applicant: SZHAZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2428 of 2005

Judgment of: Raphael FM

Hearing date: 24 January 2007

Date of last submission: 24 January 2007

Delivered at: Sydney

Delivered on: 24 January 2007

REPRESENTATION

Solicitors for the Applicant: Slattery Thompson

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2428 of 2005

SZHAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application SYG2428 of 2005 was brought into this court at this registry to seek judicial review of a decision of the Refugee Review Tribunal made on 8 September 2003 in Melbourne. At the time the application was made the new type of form which was brought in following certain changes to the Migration Act was not in use and therefore the applicant was not obliged to reveal that the decision of the Refugee Review Tribunal had already been reviewed by Federal Magistrate Hartnett in Melbourne on 15 October 2004. On that day her Honour dismissed the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 which is the rule that is used when an applicant does not attend a hearing.

2. It is accepted that when this rule is used to bring about the end of proceedings an applicant always has the right to approach the court again for the purposes of vacating that order and having his or her application heard.  Needless to say the applicant must provide a good excuse as to why he or she did not attend the hearing and the court must be satisfied that if a hearing did take place there is at least an arguable case in relation to the points made in the application.

3. No application to set aside the order of Federal Magistrate Hartnett has been made in the proceedings which Federal Magistrate Hartnett dismissed.  It would have been appropriate to have done this in Melbourne.  The bringing of the current proceedings in Sydney at a time when a review of the decision has already been undertaken and dismissed amounts to an abuse of the processes of this court and for that reason I dismiss the application SYG2428 of 2005 noting, however, that it is open to the applicant to make the application in Melbourne that I have foreshadowed. 

4. Because the application presently before me has been dismissed it is appropriate that the applicant be ordered to pay the respondent’s costs which would include the costs of an earlier hearing before me when Mr El-Hanania appeared for the first time.  I order that the applicant pay the respondent’s costs which I assess in the sum of $5,500.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: