SZHHQ v Minister for Immigration
[2008] FMCA 1080
•30 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHHQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1080 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of reinstatement application – non appearance by the applicants. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| First Applicant: | SZHHQ |
| Second Applicant: | SZHHR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1962 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 30 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2008 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application in a case filed on 23 June 2008 is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by these applicants to review any migration decision in relation to their protection visa applications made on
24 March 2005or any prior orders of this Court relating to any such earlier application by these applicants is to be accepted for filing by this Court, except by leave of a Federal Magistrate.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application filed on 23 June 2008 on an indemnity basis, fixed in the sum of $1,200.
The Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served by ordinary pre‑paid post on the applicants at their last known address for service.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1962 of 2007
| SZHHQ |
First Applicant
| SZHHR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application in a case filed on 23 June 2008. The application seeks to set aside orders made by me on 15 August 2007. At that time I dismissed an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) involving the applicants on account of their non appearance at the hearing on that day. The applicants have failed to appear for the hearing of the present application. The matter was called three times. There is no explanation for their non appearance.
The application is supported by a facsimile copy of an affidavit which is virtually unintelligible but which appears to briefly assert the genuineness of the applicant's protection visa claims and make brief reference to their litigation history. There is nothing in the face of that affidavit, to the extent that it is intelligible, which would explain the failure of the applicants to attend on 15 August 2007 or to point to any serious issue to be tried in the event that there was an explanation for their non attendance. Neither can I discern in either the application or the supporting affidavit any explanation for the delay between 15 August 2007 and 23 June 2008 in bringing the application for reinstatement.
I have before me the affidavit of Andras Markus filed on 29 July 2008 which establishes to my satisfaction that the Minister complied with orders made by me on 15 August 2007 to have the orders made that day entered and to cause a sealed copy of those orders to be served on the applicants by ordinary pre-paid post at their last known address of service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). Indeed, the order was complied with on 15 August 2007.
I also have before me as an exhibit[1] a letter to the principal applicant from the Minister's solicitors dated 22 July 2008 providing a copy of written submissions prepared on behalf of the Minister in relation to the reinstatement application and reminding the applicants that the reinstatement application had been listed for hearing today at 9.30am in Court 6B, level 6, John Maddison Tower, 88 Goulburn Street, Sydney.
[1] exhibit R1
The culmination of the circumstances being the lengthy delay in bringing the present reinstatement application, the lack of any intelligible explanation for the applicants’ non appearance on 15 August 2007, the lack of any intelligible proposition that there is a serious question to be tried, and the non appearance of the applicants today lead me to the view that the present reinstatement application is frivolous and vexatious and an abuse of the Court's process.
The Minister's written submissions, filed on 23 July 2008, together with the Minister's submissions filed in relation to the principal proceedings on 14 August 2007, are persuasive in establishing that there was no substance in the grounds of review advanced in the original application to review the decision of the Tribunal.
Those grounds asserted a breach of s.424A of the Migration Act 1958 (Cth), but it is apparent from the record of the Tribunal decision that the decision turned on disbelief that the applicants’ own evidence, inconsistencies within that evidence, and country information. There was also a generalised allegation of a constructive failure of jurisdiction which had no substance in the light of the available information.
The present reinstatement application should be dismissed on account of the applicant's non appearance today. Further, the Court should seek to ensure that the Minister is not further vexed by more such applications by these applicants unless there is a very good reason.
I will order that the application in a case filed on 23 June 2008 is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules. I will also order that no further application by these applicants to review any migration decision in relation to their protection visa applications made on 24 March 2005 or any prior orders of this Court relating to any such earlier application by these applicants is to be accepted for filing by this Court, except by leave of a Federal Magistrate.
The application, having been dismissed, and an abuse of process having been found, the Minister should receive his costs on an indemnity basis. The Minister's solicitor estimates those costs at $1200. I accept that estimate. I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application filed on 23 June 2008 on an indemnity basis, fixed in the sum of $1,200.
I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served by ordinary prepaid post upon the applicants at their last known address for service.
Addendum
Following my delivery of oral judgment in this matter my deputy associate (with the assistance of the interpreter) spoke to a person outside court who claimed to be the principal applicant. He claimed to have been delayed due to his inability to speak English. The circumstances were reported to me but I saw no need to alter my decision or to rehear the matter.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 August 2008
0
0
2