SZIXD v Minister for Immigration and Citizenship

[2008] FCA 1047

FEDERAL COURT OF AUSTRALIA

SZIXD v Minister for Immigration and Citizenship
[2008] FCA 1047

SZIXD and SZIXE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 721 OF 2008

RARES J
9 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 721 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXD
First Applicant

SZIXE
Second 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.

2.The applicants pay the costs of the first respondent, fixed in the sum of $840.

3.The applicants 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 22 December 2005 to refuse to grant them protection visas, and the decision of the second respondent signed on 19 April 2006, affirming the decision not to grant the applicants 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 721 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXD
First Applicant

SZIXE
Second 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. This is an application for leave to appeal.  When the matter was called on this morning there was no appearance by either applicant.  The court made telephone contact with the first applicant, who is the husband of the second, by telephoning the mobile telephone number on his application papers.  The husband has appeared via telephone.  He said that he was too sick to attend court because he had a problem with his leg.  He was able to offer no explanation as to why his wife was not at court.

2. The application seeks leave to appeal from a decision of Scarlett FM dismissing the proceedings before the Federal Magistrates Court on the grounds that they had no reasonable prospect of being successfully prosecuted and that they were an abuse of the process of that court:  SZIXD v Minister for Immigration [2008] FMCA 609. The application for leave to appeal attached a draft notice of appeal that asserted that Scarlett FM failed to find the decision of the Refugee Review Tribunal had been made in breach of s 424A of the Migration Act 1958 (Cth) because there was:

   “… certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).”

3. The draft notice of appeal sought leave to include additional grounds for review.  In the affidavit in support of the application, sworn the day after his Honour’s decision, it was asserted that the ground I have just set out was a strong, arguable case and that SZIXD did not get a proper opportunity to argue that case before his Honour.

4. Earlier, the applicants had brought proceedings in the Federal Magistrates Court which had sought judicial review of the tribunal’s decision to affirm the decision of a delegate of the Minister to refuse to grant protection visas to the applicants.  Lloyd‑Jones FM considered that application on its merits and dismissed it:  SZIXD v Minister for Immigration [2007] FMCA 644. Significantly, before his Honour it was alleged that the tribunal had failed to comply with s 424A. Tamberlin J dismissed an appeal from Lloyd-Jones FM’s decision saying that he was not persuaded that either his Honour or the tribunal fell into appealable error and he was not satisfied that s 424A had been breached: SZIXD v Minister for Immigration and Citizenship [2007] FCA 1152 at [8].

5. On 28 March 2008 Gummow and Kiefel JJ dismissed the applicants’ application for special leave to appeal to the High Court of Australia:  SZIXD v Minister for Immigration and Citizenship [2008] HCASL 84. They said that the applicants had failed to identify any error in the reasoning of the tribunal before Lloyd‑Jones FM and had sought to engage the Federal Magistrates Court in merits review. Their Honours said that the draft notice of appeal did not advance any question of law that would justify a grant of special leave to appeal and, importantly:

   “There is no reason to doubt the decisions of the courts below that the Tribunal’s findings were open to it and untainted by jurisdictional error.”

6. On 10 April 2008 the applicants then applied to the Federal Magistrates Court to re‑agitate the matters on which they had already failed.  Scarlett FM’s decision was plainly correct for the reasons that he gave.  Today the SZIXD told me that he claimed not to have received justice from the tribunal:  “So I will apply again and again.”  He also said:  “I know I am wasting the time of the court.”

7. He claimed to have been entitled to do this because he said he was seeking justice.  These proceedings are plainly an abuse of the process of the court, since they have no legitimate forensic purpose.  The draft notice of appeal and affidavit in support disclosed nothing of substance other than to confirm that the applicants refuse to accept the authority of the courts to determine finally their rights to review the decision of the tribunal.  Repeated applications which are known to be a waste of time can constitute a contempt of court and may be dealt with appropriately by the Court under its powers to punish for contempt.

8. I am of the opinion that the application is an abuse of the process of the court and is frivolous and vexatious:  see also SZCNP v Minister for Immigration and Citizenship [2008] HCASL 216; SZBPB v Minister for Immigration and Citizenship [2008] HCASL 164; MZXOW v Minister for Immigration and Citizenship [2008] HCASL 73.

9. I am of opinion that the application should be dismissed and that I should make orders prohibiting the applicants from making further applications for review to the Federal Magistrates Court or this court without the leave of a federal magistrate or a judge in order to guard against further abuses by them of the courts’ processes.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        15 July 2008

The First Applicant:	Appeared via telephone link
Solicitor for the First Respondent:	A Crittenden, Clayton Utz

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