FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIZJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 721 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – abuse of process – Tribunal decision previously judicially reviewed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Applicant: | SZIZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1006 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 2 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr S Dworcan Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,400.
No further application by this applicant to review any migration decision relating to his protection visa application lodged on 2 December 2005, including the decision of the delegate made on 1 March 2006 and the decision of the Refugee Review Tribunal handed down on 16 January 2007 or any notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1006 of 2008
| SZIZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 22 April 2008. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The application asserts notification of the Tribunal decision on 16 January 2007. If that assertion is correct in that the applicant was actually physically served with a copy of the Tribunal decision on that day, the application would be incompetent pursuant to s.477 of the Migration Act 1958 (Cth). For reasons, which follow it is unnecessary to answer that question.
The applicant relies upon an affidavit filed with the application, which contains legal submissions. The application notes that the Tribunal decision has been judicially reviewed previously by this Court and that this Court's decision was dealt with on appeal by the Federal Court and the High Court. The application also asserts that it is not vexatious or an abuse of process.
The applicant relies upon my earlier decision in SZCTH v Minister for Immigration (No 1) [2004] FMCA 211. I dealt with that proposition in identical circumstances in SZHEP & Ors v Minister for Immigration & Anor [2008] FMCA 643. The applicant's affidavit also asserts that this is the first occasion that he has had the opportunity to raise an argument based upon the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. I also dealt with that false argument in SZHEP. This case is materially indistinguishable from SZHEP.
In his response filed on 30 April 2008 the Minister asserts that the application does not raise an arguable case for the relief claimed. The response notes that the Tribunal decision has been dealt with previously by this Court, the Federal Court and the High Court[1]. The Minister relies upon the principles of res judicata and issue estoppel as well as rule 13.10 and rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
I received the affidavit of Sean Louis Dworcan made on 29 April 2008 in support of the response. I ordered an immediate show cause hearing in this matter. Having regard to Mr Dworcan's affidavit, there is a real question whether the application is incompetent on the basis that the Tribunal decision in issue has already been found to be a privative clause decision. Scarlett FM made that finding in SZIZJ v Minister for Immigration [2007] FMCA 876 at [25]. Madgwick J dismissed an appeal from that decision in SZIZJ v Minister for Immigration and Citizenship [2007] FCA 1334. At [6] his Honour found that the decision of Scarlett FM was right for the reasons he gave. In refusing special leave to appeal to the High Court, Hayne and Crennan JJ said at [2]of the judgment transcript that they saw no reason to doubt the correctness of a decision of Madgwick J.
Even if the application were not incompetent it is clear, in my view, that the present application is a patent abuse of the Court's process. I incorporate in this judgment the chronology forming attachment A to the affidavit of Mr Dworcan:
BACKGROUND
Applicant born in India 18 May 1978
Applicant arrived in Australia 14 November 2005
DIMA
Application for protection visa lodged 2 December 2005
Delegate’s decision 1 March 2006
TRIBUNAL
Application for review lodged 8 March 2006
Tribunal decision handed down 6 June 2006
FEDERAL MAGISTRATES COURT – SYG1829 OF 2007
Application for judicial review lodged 29 June 2006
Orders by consent remitting matter to Tribunal 26 September 2006
TRIBUNAL
Tribunal decision handed down 16 January 2007
FEDERAL MAGISTRATES COURT – SYG282 OF 2007
Application for judicial review lodged 31 January 2007
Judgment and orders of Scarlett FM dismissing
application 17 May 2007
FEDERAL COURT – NSD1014 OF 2007
Notice of appeal lodged 5 June 2007
Judgment and orders of Madgwick J dismissing
appeal 13 August 2007
HIGH COURT – S456 OF 2007
Application for special leave to appeal lodged 5 September 2007
Orders of Hayne and Crennan JJ dismissing
application 27 March 2008
FEDERAL MAGISTRATES COURT – SYG1006 OF 2008
Application for judicial review lodged 22 April 2008
The present application adds nothing to the previous proceedings in which the applicant was unsuccessful. The applicant has falsely claimed in his affidavit that the present proceeding was the first occasion on which he could raise an argument based upon the High Court's decision in SAAP.
I will deal with this case on the same basis as I dealt with the application in SZHEP.
I will order that the application be dismissed pursuant to rule 13.10(c) of the Federal Magistrates Court Rules.
In the light of the finding of an abuse of process, the Minister seeks an indemnity costs order in the sum of $1,400. The applicant indicated that he would pay the costs by instalments. I will not require payment of costs by any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application on an indemnity basis, fixed in the sum of $1,400.
I will further order that no further application by this applicant to review any migration decision relating to his protection visa application lodged on 2 December 2005, including the decision of the delegate made on 1 March 2006 and the decision of the Refugee Review Tribunal handed down on 16 January 2007 or any notification of those decisions, be accepted for filing in this Court, except by leave of a Federal Magistrate.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 June 2008
- AGLC
- SZIZJ v Minister for Immigration [2008] FMCA 721
- Case
- [2008] FMCA 721
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily concerned with whether the application constituted an abuse of process and, if so, what remedy was appropriate. The court had to consider whether the applicant's claims were frivolous or vexatious and if they warranted the imposition of costs and a prohibition on future applications. The court also needed to determine the appropriate amount of indemnity costs to award given the nature of the abuse.
In deciding the matter, the court found that the applicant's claims were indeed an abuse of process. The court highlighted the repetitive nature of the proceedings, with the applicant having already unsuccessfully pursued judicial review through multiple courts. The court also noted the applicant's false claims regarding the opportunity to raise certain arguments. The court concluded that the application was without merit and an abuse of the court's process. As a remedy, the court awarded indemnity costs of $1,400 and imposed a prohibition on the applicant from making further applications without leave of a Federal Magistrate.
The court's final orders were that the application be dismissed, the applicant be required to pay the Minister's costs of $1,400 on an indemnity basis, and that no further applications by the applicant regarding his protection visa would be accepted without leave of a Federal Magistrate.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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