SZIOJ v Minister for Immigration
[2006] FMCA 683
•1 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 683 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa. PRACTICE & PROCEDURE – Where Refugee Review Tribunal has no jurisdiction – abuse of process – where applicant has previously sought review of the same RRT decision – where applicant did not disclose prior court proceedings. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412, 486D |
| SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 249 SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1778 SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1507 SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1731 |
| Applicant: | SZIOJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 902 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 May 2006 |
| Date of Last Submission: | 1 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is not competent.
The application is dismissed as an abuse of process.
The Applicant is to pay the First Respondent’s costs on an indemnity basis in the sum of $2,000.00.
No further application for review of the decision of the Refugee Review Tribunal handed down on 22 April 2003 reference N01/37518 or for review of the Refugee Review Tribunal decision made on
1 March 2006 reference N05/52859 or for review of the decision of the delegate of the Respondent dated 13 February 2001 or for review of any notification of these decisions is to be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 902 of 2006
| SZIOJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for an order to show cause in respect of a decision of the Refugee Review Tribunal made on 1st March 2006.
The decision of the Refugee Review Tribunal made on 1st March 2006 was that the Tribunal does not have jurisdiction to review a decision of the delegate of the Minister. The decision of the delegate of the Minister was made on 13th February 2001.
It can be seen that the application is clearly out of time under the provisions of s.412 of the Migration Act. There is, however, another reason why the Tribunal held that it did not have jurisdiction.
That reason is that the Tribunal has already reviewed the decision.
The applicant applied to the Tribunal on 13th March 2001 for review of the delegate’s decision made on 13th February that year. The Tribunal affirmed that decision on 22nd April 2003. On 26th May 2003 the applicant sought a review of the Tribunal’s decision in the Federal Magistrates Court. On 1st April 2004 Barnes FM dismissed that application. The citation for that decision is SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 249.
The applicant appealed on 15th April 2004. On 1st June 2004 Emmett J in the Federal Court, exercising the jurisdiction of the Full Court of the Federal Court, dismissed the appeal. The citation for that decision is SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1778.
The applicant then sought special leave to appeal to the High Court of Australia. On 16th June 2005 that application for special leave was dismissed by order of Gleeson CJ and Gummow J of that Court.
The applicant then brought a fresh application in respect of the same Tribunal decision in the Federal Magistrates Court.
On 4th October 2005 that application was dismissed by
Lloyd-Jones FM. His Honour upheld a notice of motion filed by the Minister’s lawyers and dismissed the application as incompetent. His Honour directed that no further application for review of the decision of the Refugee Review Tribunal, or for the review of the decision of the delegate, or for the review of any notification of those decisions, should be accepted for filing without prior leave of the Court. His Honour made an order for costs.
The applicant then sought leave to appeal against that decision.
That application for leave to appeal was dismissed by Allsop J in the Federal Court on 24th November 2005. What the applicant then did on 14th December 2005 was to file this fresh application with the Refugee Review Tribunal to review the same decision of the delegate.
On 1st March 2006 the Tribunal held that it did not have jurisdiction in that matter. I note that the Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the prescribed time limit and because the Tribunal had already reviewed the delegate’s decision.
The Tribunal wrote to the applicant on 17th January 2006 inviting submissions on that issue. On 10th February 2006 the applicant sent in written submissions. On 1st March 2006 the Tribunal held that it does not have jurisdiction in this matter.
The applicant then brought proceedings in this Court seeking a review of that decision. He sets out six grounds, none of which has any merit whatsoever. When asked to explain the grounds, the applicant sought an adjournment in order that he could obtain legal advice. I refused that application. I will deal with the grounds in order.
There is no evidence of any denial of procedural fairness. The Tribunal formed the preliminary view that it had no jurisdiction and it wrote to the applicant making that clear, but inviting submissions from him. The applicant made written submissions and it is clear from the decision that the Tribunal considered those submissions as the Tribunal quoted a substantial passage from the applicant’s letter. There is no evidence the procedures required by the Migration Act or the Migration Regulations were not observed.
There is no evidence that the Tribunal ignored the merits of the applicant’s claim. The Tribunal considered the applicant’s request for a review and rejected it on the basis that it had no jurisdiction.
The claim that the Tribunal made its decision on the basis of outdated information is meaningless.
The applicant’s claim for breach of s.425 and s.425A of the Migration Act cannot be sustained. The Tribunal has no obligation to invite an applicant to attend for an interview in respect of an application for review where it clearly has no jurisdiction.
There is no jurisdictional error, no error of law and no incorrect interpretation of the Migration Act or the Migration Regulations. There is no evidence that the Tribunal decision was unjust, or that it was made without taking into account the full gravity of the circumstances and consequences of the applicant’s review application.
In my view, the Tribunal decision is without error in that the Tribunal correctly found that it had no jurisdiction to review a decision which it had already reviewed several years before. It must follow that in any event the application was out of time as set out in s.412.
The application is entirely without merit, and is clearly an abuse of process. The litigation history of this matter indicates that the applicant has previously commenced proceedings which are without merit and this application, which involves making a totally groundless application for review to the Refugee Review Tribunal and which must obviously be refused as being without jurisdiction, is quite clearly an application brought for an ulterior purpose. It is a scam brought about in order to obtain a hearing date for legal proceedings, notwithstanding the fact that they have no merit, in order to bring about an extension of time for a bridging visa. This is not the first of such spurious applications the Court has seen.
The application will be dismissed as an abuse of process. Because it is an abuse of process it will be dismissed with costs.
There is an application for costs on an indemnity basis.
These proceedings have been found to be an abuse of process. In my view an abuse of process calls for a costs order on an indemnity basis. The sum sought is $2,000.00. The applicant has asked for the amount of costs to be reduced as much as possible. In my view it is inappropriate to do so.
Having found that the proceedings are an abuse of process, it is also appropriate to make an order in order to prevent any future abuse of the Court process.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 May 2006
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