SZICI v Minister for Immigration

[2006] FMCA 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 353

MIGRATION – Notice of motion to dismiss the application – whether the court has jurisdiction to hear the application – whether the application is an abuse of process.

Migration Act 1958 (Cth), ss.476(2)(a),476(4)
Federal Magistrates Court Rules 2001, Part 13 Rule 13.10(c)

Zubair v Minister for Immigration [2004] FCAFC 248

Applicant: SZICI

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFGUEE REVIEW TRIBUNAL

File Number: SYG 115 of 2006

Judgment of: Raphael FM

Hearing date: 6 March 2006

Date of Last Submission: 6 March 2006

Delivered at: Sydney

Delivered on: 6 March 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Substantive application dismissed pursuant to Part 13 Rule 13.10(c) Federal Magistrates Court Rules 2001. 

2. The applicant not be permitted to file any application for review of the decision of the Minister's delegate made on 19 November 1999 or the decision of the Refugee Review Tribunal made on 19 April 2004 without leave of the court.

3. Applicant to pay the respondents’ costs assessed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 115 of 2006

SZICI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. On 13 October 1999, having arrived in this country as the holder of a business visa, he made an application for a protection visa from the Department of Immigration and Multicultural Affairs. On 19 November 1999 a delegate of the Minister declined to provide him with such a visa.  The applicant applied for a review of the delegate's decision by the Refugee Review Tribunal on 5 December 1999.  The Tribunal made a decision affirming the decision of the delegate on 19 April 2004.    On 7 June 2004 the applicant sought review of the Tribunal's decision from the Federal Magistrates Court.  On 21 April 2005 Lloyd-Jones FM dismissed the application.  On 13 May 2005 the applicant filed a notice of appeal.  The appeal was the subject of a decision of Madgwick J, made on

   
   

   1 August 2005.  His Honour dismissed the appeal. On 24 August 2005 the applicant filed an application for special leave to appeal in the High Court of Australia.  On 15 December 2005 Gummow and Haydn JJ dismissed the application for special leave. 

2. On 12 January 2006 the applicant filed an application for an order to show cause seeking review of the decision of the Minister's delegate. On 22 February 2006 the Minister filed a notice of motion seeking to dismiss the application on the grounds that this court had no jurisdiction to hear it or, alternatively, it is an abuse of the process of this court. Section 476(2)(a) of the Migration Act 1958 (Cth) (“the

   
   

   Act”) states that the Federal Magistrates Court has jurisdiction in relation to a primary decision which is defined in s.476(4). This decision appears to fall within that definition as it was reviewable under Part 4 and was so reviewed.

3. But I would also decide this matter on the basis that the application before me is an abuse of the process of the court.  The applicant has taken advantage of his right to have had his application determined by way of merits review by the Refugee Review Tribunal.  Since the decision of the Full Bench of the Federal Court in Zubair v Minister for Immigration [2004] FCAFC 248 it is accepted that a Tribunal review has the effect of curing any deficiency in the original decision of the delegate. This is the appropriate way for the applicant to have proceeded. The applicant was not satisfied with the decision of the Tribunal which affirmed the decision of the delegate. As was his right the applicant took the matter to the Federal Magistrates Court. His application was dismissed and again he exercised his right to have that decision appealed to the Federal Court. The appeal was dismissed. Not satisfied with that situation the applicant took the matter to the High Court but was not granted special leave. The applicant has therefore exhausted every form of merits review and judicial review of the original decision. To come to this court now and ask this court to rehearse those matters and reconsider the decision of the delegate is plainly an abuse.

4. This court has the power to dismiss proceedings that are an abuse of the processes of the court pursuant to Part 13 Rule 13.10(c) Federal Magistrates Court Rules 2001.  I am satisfied that in the circumstances of this case it is appropriate that I should exercise my power under those rules to dismiss the substantive application. I would also make an order that the applicant not be permitted to file any application for review of the decision of the Minister's delegate made on 19 November 1999 or the decision of the Refugee Review Tribunal made on 19 April 2004 without leave of the court. I order that the applicant pay the respondents’ costs which I assess in the sum of $1,500.

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

Associate: 

Date:  13 March 2006