SZHIK v Minister for Immigration
[2006] FMCA 370
•2 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 370 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC arising out of dispute with local authority over the payment of money – applicant failed to appear at hearing – abuse of process – 5 years delay in filing in the Federal Magistrates Court of Australia. |
| SZBXA v Minister for Immigration [2004] FMCA 96 |
| Applicant: | SZHIK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2944 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 February 2006 |
| Date of Last Submission: | 2 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitor for the First Respondent: | Ms A. Nanson, Australian Government Solicitor |
ORDERS
That the application before this Court is dismissed.
That the Applicant pay the First Respondent's costs in an amount of $3323.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2944 of 2005
| SZHIK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the First Respondent to dismiss an application filed in this Court by the Applicant on 13 October 2005. The First Respondent relies on the affidavit of Angela Margaret Nanson, sworn
7 November 2005. That affidavit discloses that, on 4 May 2000, the Refugee Review Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant’s application for the protection visa arose out of the Applicant’s claim of a dispute with a local authority over the payment of money. The Tribunal found that the Applicant's claim lacked the relevant Convention nexus in order to demonstrate that he was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.
Following the Tribunal’s decision, the Applicant filed an application for review in the Federal Court of Australia on 5 June 2000.
On 27 June 2000, the Applicant appeared before the Registrar of the Federal Court and the matter was set down for hearing before Hely J on 4 August 2000. The Applicant failed to appear on 4 August 2000, and Hely J, being satisfied that the Applicant was aware of the date of the hearing, dismissed the application.
The Applicant submitted to this Court that he was not prepared to attend the hearing before Hely J without the assistance of his migration agent and that he was unable to find him on the day. Without making comment in respect of that submission as to its accuracy or otherwise, the relevant factors are that he was aware of the hearing and chose not to attend. He has then done nothing, or, there is no evidence before me, of any proactivity by the applicant since 4 August 2000.
Five years later, on 13 October 2005, the Applicant filed in this Court an application for review of the Tribunal’s decision. That application relevantly claims that the Tribunal committed a jurisdictional error in circumstances where it unreasonably and without probative evidence found that the Applicant’s dispute was “a one-off culmination of particular social and political factors". There are no particulars in respect of that ground and, on its face, it seeks to cavil with the Tribunal’s finding that the Applicant’s dispute with the local authority had no Convention nexus.
In SZBXA v Minister for Immigration [2004] FMCA 96 at [9] Driver FM adopted, for the purposes of his judgment, relevantly, the following submissions made on behalf of the respondent:
“An application for judicial review amounts to an abuse of process if it is file for a collateral purpose, for example, for the purpose of extending the period of the applicant's stay in Australia: NALE v The Minister for Immigration [2003] FMCA 366 at [12]. Even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it were unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute: Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255-256; Chu v Minister for Immigration (1997) 78 FCR 314 at 323-326. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner: Johnson v Gore Wood & Co [2002] 2 AC 1 per Lord Bingham at 22-34.
In SZAWW v The Minister for Immigration [2003] FMCA 479, the Court applied the extended notion of abuse of process in Walton v Gardiner when holding that an applicant should not be "permitted to wait seven years to take advantage of a change in the law to reactivate proceedings that had earlier been abandoned”. The Court further held that it would be unfair to the Minister to permit multiple applications for review.”
Having regard to the lack of evidence by the Applicant of any attempt by him to seek any advice, or pursue any rights he may otherwise have in respect of his application, until 13 October 2005, being 5 years after the Federal Court dismissed his application, the overwhelming inference that I draw is that the application for review in this Court is for the purpose of extending the Applicant's stay in Australia. On the face of the application, and without a detailed analysis of the Tribunal's decision, there would appear to be no reasonable prospect of success of the application in its current form. An opportunity was provided to the Applicant to file an amended application. No other document has been filed by or on behalf of the Applicant in this Court. In the circumstances, the application filed by the Applicant on 13 October 2005, is an abuse of process.
Pursuant to Rule 13.10(c) of the Federal Magistrate's Court Rules, the application before this Court is dismissed with costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Kwong
Date: 16 March 2006
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