SZIQR v Minister for Immigration

[2007] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIQR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 554

MIGRATION – Refugee – application for reinstatement – applicant did not appear – application dismissed.

Federal Magistrates Court Rules 2001, Rules 16.05, 13.03A(c)

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

Applicant: SZIQR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1060 of 2006

Judgment of: Nicholls FM

Hearing date: 13 April 2007

Date of Last Submission: 5 December 2006

Delivered at: Sydney

Delivered on: 13 April 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Solicitor 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 made on 5 December 2006 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 $600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1060 of 2006

SZIQR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application filed in this Court on 5 December 2006 seeking that orders made on 9 November 2006, in dismissing an earlier application filed by the same applicant, be set aside. The matter has come before me previously on two occasions (see SZIQR v Minister for Immigration & Anor [2006] FMCA 1193 and SZIQR v Minister for Immigration & Anor (No.2) [2006] FMCA 1677 for the relevant history). In relation to the applicant’s efforts to pursue his application for recognition as a refugee in Australia, beginning with an application for a protection visa on 12 January 2001, I note the affidavit of Ms. Andrea Maree Mansour, a solicitor in the employ of the respondent’s solicitors made on 22 May 2006, which was before me on 14 August 2006. Paragraphs 2 to 13 of her affidavit outline the relevant history in this matter:

   "First Refugee Review Tribunal Proceedings
   
   2. On 10 April 2001 a delegate of the First Respondent made a decision in relation to the Applicant ("Delegate’s Decision").
   
   3. On 19 February 2003, the Refugee Review Tribunal ("Tribunal") affirmed the Delegate’s Decision and handed down its decision on 12 March 2003 ("first Tribunal Decision"). Annexed to my affidavit and marked "A" is a copy of the first Tribunal decision.
   
   Federal Court Proceedings N435 of 2003
   
   4. On 7 April 2003, the Applicant filed in the Federal Court of Australia an application for review of the first Tribunal decision. Annexed to my affidavit and marked "B" is a copy of that application for review.
   
   5. Annexed to my affidavit and marked "C" is a copy of the reasons for judgment and the Order made by Hely J on 17 June 2003.

   Federal Court Proceedings N 795 of 2003

   6. On 4 July 2003, the Applicant filed a notice of appeal in the Federal Court of Australia. Annexed to my affidavit and marked "D" is a copy of that notice of appeal.
   
   7. Annexed to my affidavit and marked "E" is a copy of the reasons for judgment and the Order made by Sackville, Selway and Lander JJ on 26 November 2003.

   High Court Proceedings – Special Leave Application

   8. On 17 December 2003, the Applicant filed an application for special leave to appeal in the High Court of Australia. Annexed to my affidavit and marked "F" is a copy of that application for special leave of appeal.
   
   9. On 27 April 2005, the Applicant’s application for special leave to appeal was dismissed. Annexed to my affidavit and marked "G" is a transcript of the reasons for judgment of Justice McHugh and Justice Heydon dated 27 April 2005.

Federal Magistrates Court Proceedings – CAG 25 of 2005

10. On 24 May 2005, the Applicant filed an application for review of the first Tribunal Decision in the Federal Magistrates Court of Australia. Annexed to my Affidavit and marked "H" is a copy of that application.

11. On 11 November 2005, his Honour Federal Magistrate Mowbray dismissed the Applicants’ application having found that no jurisdictional error attended the First Tribunal decision. Annexed to my affidavit and marked "I" is a copy of his Honour’s reasons for judgment.

Second Refugee Review Tribunal Proceedings

12. On 9 December 2005, the Applicant applied again to the Tribunal for review of the Delegate’s Decision. On 10 March 2006, the Tribunal made a decision in relation to the Applicant, the decision the subject of these proceedings ("The second Tribunal’s decision"). Annexed to my affidavit and marked "J" is a copy of the second Tribunal’s decision dated 10 March 2006.

Federal Magistrates Court Proceedings SYG 1060 of 2006

13. On 7 April 2006, the Applicant applied to the Federal Magistrates Court of Australia for judicial review of the second Tribunal decision. Annexed and marked "K" is a copy of that application."

1. The relevant history in relation to the current application before me is as follows:

7 April 2006	Application and affidavit filed in Federal Magistrates Court (“the first application”) seeking review of the Tribunal decision made on 10 March 2006.
2 May 2006	First Court date (no appearance).
14 August 2006	Orders made by the Federal Magistrates Court dismissing the first application (no appearance).
13 September 2006	Application and affidavit filed in the Federal Magistrates Court seeking review of the decision of the Federal Magistrates Court made on 14 August 2006 (“the second application”).
9 November 2006	Orders made by the Federal Magistrates Court dismissing the second application (no appearance).
5 December 2006	Application and affidavit filed in the Federal Magistrates Court seeking review of the decision of the Federal Magistrates Court made on 9 November 2006.
13 April 2006	Current proceedings before the Federal Magistrates Court

1. At the hearing, the applicant did not appear when the matter was called.  I note that no attempt was made by the applicant to contact the Court to explain his absence, or seek any adjournment. The applicant was informed of the time and date of the hearing when he made the application on 5 December 2006. Whilst there was on the Court’s file nothing to indicate that the applicant was specifically notified of the particular Courtroom, enquiries were made of the Court’s registry and they had no knowledge of the applicant’s attendance at the registry.

2. The applicant is seeking to again revive an application made to this Court which has already been determined as not disclose any reasonable basis for its grounds of complaint and which has been found to be an abuse of process. Nothing further has been put by the applicant before the Court. To allow the matter to continue beyond today, in all the circumstances, would be another exercise in futility. On that basis I agree with the Minister’s submission and the application made on 5 December 2006 is dismissed with costs. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  9 May 2007