SZIQR v Minister for Immigration
[2008] FMCA 195
•20 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIQR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 195 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for reinstatement – applicant has a history of making applications to the Court and not appearing – abuse of process finding – application dismissed. |
| SZIQR v Minister for Immigration and Anor [2006] FMCA 1193 SZIQR v Minister for Immigration and Anor [2007] FMCA 554 SZIQR v Minister for Immigration and Anor [2007] FMCA 2086 |
| Applicant: | SZIQR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1060 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 February 2008 |
| Date of Last Submission: | 20 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the respondents: | Ms S Kantaria |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for leave filed on 7 January 2008 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1060 of 2006
| SZIQR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application made on 7 January 2008 for leave to file a further application in this matter. As to notice to the applicant of the matter proceeding today, I am satisfied the applicant knew that the matter had been listed for today at 10.00am. I note that the letter notifying the applicant of the date and time of the hearing was posted on 22 January 2008. I note further that there were two addresses on that letter: one being the Queens Square address and the other being 88 Goulburn Street, Sydney. I am satisfied that the applicant had notice therefore of his application for leave having been listed for today at 10.00am.
The matter was called both in John Maddison Tower, the appropriate place, and enquiries were made with the Registry at Queens Square, and there has been no appearance by the applicant. I note that it is now 11.20am and there is still no appearance by the applicant.
I note further that attempts have been made to contact the applicant by the Minister’s solicitor with the assistance of an interpreter by reference to the two telephone numbers provided at the foot of the application for leave made to this Court on 7 January 2008. These attempts to contact the applicant were unsuccessful.
I note that the application of 7 January 2008 was prepared with the assistance of a particular person to whom one of those telephone numbers relates. I am not in a position to rely further on what may have been discussed with that person; that is not a matter of evidence before me. In all, I am satisfied that the applicant had notice of the time and date of the hearing.
While there may have been some doubt in the letter that was sent to the applicant as to the exact place, it was clear from what is on the face of the letter from the Court that the place of the hearing could only have been at one of two places. As noted earlier, when the matter was called in John Maddison Tower there was no appearance, and enquiries were made with the Registry at Queens Square and there was no appearance by the applicant at that place either. I am satisfied that the matter should proceed today and that the applicant had notice.
The application made on 7 January 2008 seeks leave to file an application concerning a Refugee Review Tribunal decision which has been the subject of a number of applications to this Court in the past. The Minister asks that I dismiss that application with costs. In all the circumstances it is appropriate that I do so, noting that the applicant has, yet again, failed to appear to pursue an application made to this Court. This applicant has a long history both before this Court, and the Federal Court of Australia and the High Court of Australia, relating to an application for a protection visa that was made, and dealt with, in 2001. I have already made a number of judgments in this matter, and I rely on all of those judgments and refer to all of those judgments for the background and history of this applicant’s dealings with this Court.
For the purposes of my judgment today, I note in particular the affidavit of Ms Andrea Marie Mansour of 23 May 2006 setting out the history of the matter to that date; background since that time can be discerned from the various judgments that I have made relating to this applicant. In particular, I note references to SZIQR v Minister for Immigration and Anor [2006] FMCA 1193, SZIQR v Minister for Immigration and Anor [2007] FMCA 554 and SZIQR v Minister for Immigration and Anor [2007] FMCA 2086. For the record, there is a long history of applications by the applicant, and a similar history of failure to appear when his various applications have come up for hearing before this Court. I note, in particular, that with his latest application, the applicant filed an affidavit made on 7 January 2008 where he says that he could not attend the Court because of sickness and states, presumably in reference to at least the last occasion: “assure that this time not gonna (sic) miss the hearing date by any chance.” In spite of that, the applicant has not put in an appearance.
It is quite clear on an earlier occasion I found that the applicant’s repeated applications to the Court were, in effect, in relation to the same matter (noting that the applicant, having made a protection visa application, sought review by the Tribunal, and that decision by the Tribunal to affirm the delegate’s decision was the subject of litigation even up to and including the High Court of Australia). The applicant ignored all of that and sought to make a fresh application to the Tribunal for review of the same delegate’s decision. When the Tribunal found it had no jurisdiction, the applicant then embarked on a long series of applications to this Court. On the last occasion, I found the applicant’s actions to be an abuse of process. Nothing that has occurred to date causes me to alter that view. In fact, I find that the applicant’s latest attempt and his failure to appear to be similarly an abuse of process of the Court.
In all those circumstances, and, as I said, with particular reference to the long history in this matter (the making of an application and the failing to appear), the applicant’s latest application be dismissed. I find that the latest application, which is an application for leave to file a further application in relation to the Tribunal’s decision, which has already been before the Court on a number of occasions, to be an abuse of process, and that this application should be dismissed with costs to the Minister. There is nothing before me to argue against the costs order being made. There are very strong arguments that the costs order, in fact, should be made. Those arguments flow from the finding of an abuse of process. As to the amount, I find that $400 is, in my view, a reasonable amount, bearing in mind attendance by a solicitor at Court today for what has turned out to be an attendance for over an hour and a half while enquiries were made and the matter was sorted out.
I make orders accordingly.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of FM Nicholls FM
Associate: A Douglas-Baker
Date: 3 March 2008
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