SZIQR v Minister for Immigration

[2007] FMCA 2086

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2086

MIGRATION – Visa – review of Refugee Review Tribunal decision – applicant failed to attend Federal Magistrates Court hearing – previous applications before the Court – application dismissed for non-attendance.

Federal Magistrates Court Rules 2001, r.13.03A(c)

SZIQR v Minister for Immigration & Anor [2006] FMCA 1193
SZIQR v Minister for Immigration & Anor (No.2) [2006] FMCA 1677
SZIQR v Minister for Immigration & Anor [2007] FMCA 554

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: 7 December 2007

Date of Last Submission: 7 December 2007

Delivered at: Sydney

Delivered on: 7 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms A. Mansour

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application filed on 22 October 2007 is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

3. The applicant pay the first respondent’s costs set in the amount of $500.

4. No further application for review of the decision of the Refugee Review Tribunal of 10 March 2006 in relation to the applicant be accepted for filing.

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)

1. I am satisfied, given that it appears that the applicant filed this application and his affidavit on the same date, that he would have had notice of the matter being heard today. I note in passing that his failure to appear appears consistent with the course of action that he has undertaken since lodging his latest originating application on 7 April 2006. This is now the third attempt by the applicant to reinstate those original proceedings, and on no occasion has the applicant appeared in Court. I note the earlier judgments in this matter: SZIQR v Minister for Immigration & Anor [2006] FMCA 1193; SZIQR v Minister for Immigration & Anor (No. 2) [2006] FMCA 1677; SZIQR v Minister for Immigration & Anor [2007] FMCA 554. No doubt today will be the next in this long series.

2. I have before me the affidavit of Andrea Marie Mansour of 22 May 2006 that was filed in respect of these proceedings with the history of the applicant’s journey through the Court following a Tribunal decision that was adverse to him.  Subsequently, as it turned out, he ignored the fact that he had been all the way to the High Court and proceeded to initiate the process again before the Tribunal and then sought to bring that decision before this Court.  There is also the history as set out in the judgments to which I have just referred.

3. As I found on 14 August 2006, amongst other things, the applicant first applied for a protection visa some five years ago.  I note paragraph 16 of the judgment of 14 August 2006 setting out the applicant’s history to that date.  Since that time, there have been a number of applications for reinstatement.  On no occasion has the applicant appeared.   

4. In addition to other findings made on 14 August 2006, I found that the applicant's actions were an abuse of process.  I can only say that nothing has occurred since that time, particularly given the applicant’s unexplained absence from Court today that alters that situation. 

5. I note that it is now nearly half an hour past the time for the scheduled commencement of the proceeding today.  There has been no appearance by the applicant.  There has been nothing heard from the applicant by the Court by way of seeking an adjournment or any explanation as to any inability to attend today, or for the failure to attend.  I note that again there has been no communication to the Minister’s solicitors by the applicant.  In all the circumstances, it is appropriate, and I am satisfied, that the matter should be dismissed today in the way that Ms Mansour has sought.  I make that order.

6. I am satisfied that a costs order should be made in this matter and there is nothing that would argue against the making of such an order and the amount sought is reasonable in all the circumstances.  I make that order.  On earlier occasions, and indeed on the last occasion on 14 August 2006, I made orders that no application relating to a Tribunal decision be accepted for filing without leave of the Court.

7. I am satisfied that the applicant has filed these subsequent proceedings for the purpose of extending his stay in Australia.  His repeated failure not to appear and his unexplained failure today to appear, satisfies me that this has been an abuse of the processes of the Court.

8. I note the orders of 14 August 2006; I make an order along the lines of, “No further application in relation to the Tribunal decision of 10 March 2006 without leave of the Court be accepted”, which should at least address these repeated requests for reinstatement of that decision.  My memory is that at that time, given that that was the first occasion, that it probably was not sufficient to extend it to that Tribunal decision, but I think the history since then clearly shows that the abuse has now spread to include the subsequent applications for reinstatement so on that basis I will make that order.

9. I note that the notice of motion of 22 October 2007, which I am treating as an application for reinstatement has the first respondent as “Minister for Immigration and Multicultural Affairs”, so I will make an order in relation to the reference to the first respondent.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  11 December 2007