SZIES v Minister for Immigration and Citizenship

[2008] FCA 1046

FEDERAL COURT OF AUSTRALIA

SZIES v Minister for Immigration and Citizenship
[2008] FCA 1046

SZIES v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 864 OF 2008

RARES J
9 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 864 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIES
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

2.The applicant file no further proceedings in this court without the leave of a judge of the court, or in the Federal Magistrates Court without the leave of a federal magistrate, seeking to challenge the decision of the delegate of the first respondent made on 6 January 2006 to refuse to grant her or her husband, SZIER, protection visas, and the decision of the second respondent signed on 27 June 2006, affirming the decision not to grant  protection visas.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 864 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIES
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	9 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. The applicant has filed an application for leave to appeal from orders of Lloyd-Jones FM made on 18 March 2008 dismissing the proceedings before the Federal Magistrates Court on the ground that they were an abuse of process and frivolous and vexatious:  SZIER v Minister for Immigration [2008] FMCA 619.

2. The present applicant is the wife of the first applicant, SZIER, before his Honour.  Both appeared in the Federal Magistrates Court.  SZIER had made substantive claims for a protection visa and his wife, the present applicant (SZIES), had made a derivative claim based on her husband’s claim.  The husband has not sought to appeal.

3. The draft notice of appeal reveals no matters of substance.  It simply includes assertions that there were errors made by the Federal Magistrates Court and that it ought to have determined there was jurisdictional error in the decision of the Refugee Review Tribunal.

4. The affidavit in support of the application for leave to appeal is in a boilerplate form which I have seen in other applications.  It asserts that the Federal Magistrate made a mistake in deciding that the case was not arguable and that after becoming aware of the outcome of the decision of his Honour, the applicant “… got mentally distressed and physically ill so that I couldn’t take any initiative about my case and didn’t know what steps I should take.  I believe that I have an arguable case”.  I do not accept that evidence.

5. Earlier, the applicant and her husband had brought proceedings in the Federal Magistrates Court seeking judicial review of the decision of the tribunal to refuse them protection visas.  Those proceedings were dismissed by Smith FM:  SZIER v Minister for Immigration [2006] FMCA 1935. His Honour carefully considered that application on its merits. He reviewed the tribunal’s decision and the applicants’ arguments. He said that the tribunal had found that the applicants were economic refugees and not refugees for a reason covered by the Refugees Convention. Accordingly, he found that there was no jurisdictional error by the tribunal.

6. The applicant’s appeal to this Court was refused by Ryan J:  SZIER v Minister for Immigration and Citizenship [2007] FCA 611 at [10] where his Honour said that he had been unable to discern any error of law in the tribunal’s treatment of the matter and that the applicants had failed to make out their assertion that there had been non-compliance with s 424A of the Migration Act 1958 (Cth) or some other denial of procedural fairness.

7. On 7 February 2008 Kirby and Heydon JJ refused an application for special leave to appeal to the High Court of Australia:  SZIER v Minister for Immigration and Citizenship [2008] HCA Trans 038. Their Honours said that the husband’s claim had been rejected on the facts and that rejection was “unimpeachable.” Their Honours found:

   “In these circumstances it was inevitable that the application for judicial review would fail, as it did before both Smith FM and Ryan J.  No legal or jurisdictional error is apparent.  No Convention ground is apparent.  The applicant and his wife have no arguable basis for their claim against Australia based on the Convention and Protocol, given effect by the Act.  An appeal to this Court would not have any prospects of success.”

8. The application to the Federal Magistrates Court determined by Lloyd-Jones FM claimed that the tribunal had “… denied proper application of law to the applicant.  The mater was not dealt by the court properly before [sic]” and also that the tribunal had denied natural justice to the applicants and had not followed due procedures.

9. Lloyd-Jones FM described the proceedings, in my opinion, correctly as being obviously untenable and manifestly groundless.  He noted that the applicants had not attempted to outline any meaningful grounds for review before him and that the proceedings were simply a transparent attempt to re-litigate the same matter that had been previously litigated.  I agree.

10. This morning there was no appearance for the applicant when the matter was listed.  The court interpreter, with the assistance of the solicitor for the Minister, made telephone contact with the applicant on her mobile telephone number given in her application for leave to appeal.  She said that she was not coming to court and had some gynaecological or other problem, the exact nature of which she did not specify.

11. It is obvious that this application has no legitimate purpose and ought never to have been permitted to have been filed under O 46 r 7A.

12. The solicitor for the Minister has asked that I dismiss the proceedings under O 35A rr 2(b) or (f).  In my opinion, I could do so under O 35A r 2(f) which provides that an applicant is in default if the applicant fails to prosecute the proceedings with due diligence.

13. I am of opinion that the Court has inherent power to deal with matters where an applicant is aware of the hearing of an application which he, she or it has brought and does not attend.  Whether one characterises that as a failure to prosecute the proceedings with due diligence or simply as abandonment of the proceedings matters not.

14. However, I will determine the application on its merits. In my opinion, the proceedings are plainly an abuse of the process of the Court and are vexatious.  The applicant gave no evidence and made no attempt to contact the Court to seek an adjournment.  I am not satisfied that there is any bona fide reason why the applicant is not here.

15. But, in any event, I am satisfied, particularly having regard to the remarks of Kirby and Heydon JJ which I have set out above, that these proceedings have no legitimate forensic purpose and ought be dismissed as an abuse of the process of the court.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        15 July 2008

The Applicant:	Appeared via telephone link
Solicitor for the First Respondent:	E Warner Knight Australian Government Solicitor

Date of Hearing:	9 July 2008
Date of Judgment:	9 July 2008