SZKEP v Minister for Immigration & Anor
[2008] FMCA 697
•19 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKEP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 697 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant. PRACTICE & PROCEDURE – Abuse of process – applicant did not attend Court. |
| Federal Magistrates Court Rules 2001 r.13.03A(e) |
| SAAP v Minister for Immigration Multicultural & Indigenous Affairs [2005] HCA 24 Minister for Immigration & Citizenship v SZKKZ [2007] FCAFC 105 SZKEP v Minister for Immigration & Citizenship & Anor [2008] HCASL 137 |
| Applicant: | SZKEP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 963 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 May 2008 |
| Date of Last Submission: | 19 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2008 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms Tondl |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application as dismissed as an abuse of process.
In the alternative, the Application is dismissed as the Applicant has no reasonable prospect of successfully prosecuting the claim.
The Applicant is to pay the First Respondent's costs fixed in the sum of $2,400.00.
No further application for review of the decision of the Refugee Review Tribunal signed on 3 January 2007 and handed down on 25 January is to be accepted for filing without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 963 of 2008
| SZKEP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The substantive application before the Court is an application for judicial review of a decision of the Refugee Review Tribunal that was signed on 3rd January and handed down on 25th January 2007. The Tribunal affirmed the decision of a Delegate of the Minister for what was then Immigration and Multicultural Affairs to refuse to grant a Protection (Class XA) visa to the Applicant.
The application currently before the Court was filed at this Court along with an affidavit in support on 18th April 2008. The Applicant claims in his affidavit in support that the decision made by the Tribunal falls within the application of High Court decision in the matter of SAAP v Minister for Immigration Multicultural & Indigenous Affairs[1] where the Court made a new ruling about the definition of s.424A of the Migration Act. He goes on to say:
“I would like to seek leave from the Court to make this new line of argument on the basis that at the time of my matter before the Court the decision of SAAP was not in force and therefore there was miscarriage of justice.”[2]
[1] [2005] HCA 24
[2] Applicant’s Affidavit filed on 18 April 2008.
As will be seen that statement is factually incorrect. The Applicant in his application provides two grounds, one that the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims. He also claims:
“The application is not vexatious not the abuse of process. A Tribunal decision can be reviewed by the Court a second time under certain circumstances. SZCTH v Minister for Immigration (No.1) (2004) FACA 211.”[3]
[3] Applicant’s Application filed on 18 April 2008.
Notice of Motion
The First Respondent, the Minister for Immigration & Citizenship has filed a Response on the 7th of this month opposing the application on the following basis:
a)That the Court lacks jurisdiction to hear the application.
b)That the application is frivolous or vexatious and amounts to an abuse of the Court's process.
c)The application has not raised an arguable case for the relief claimed.
As to the claim of lack of jurisdiction the Minister submits that the application is out of time because the Tribunal decision was handed down on 25th January 2007 and that the Applicant had received actual notification of the decision at least by 12th February 2007 when he filed an application seeking jurisdictional review of a decision of this Court. The submission goes that:
“Contrary to the requirements of s.477(1)of the Act, the present application was not made within 28 days of the actual notification of the decision.
The Court has no power to extend the time for the commencement of the proceedings until 18 April 2008, when the present application was filed.”
However, the Minister concedes that the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKKZ[4] is binding upon this Court. In that decision the Full Court found that for purposes of s.477 of the Migration Act, actual notification to an applicant for decision of the Tribunal must be accomplished by physical delivery of a written statement prepared by the Tribunal to an applicant personally.
[4] [2007] FCAFC 105
Whilst the Minister formally submits that the decision in SZKKZ was wrongly decided the Minister accepts that it is binding upon the Federal Magistrates Court and indeed that is the position.
The two other grounds, namely the application being frivolous or vexatious and an abuse of the Court's process and that the application has not raised an arguable case for the relief claimed both relate to the fact that the Applicant has previously sought judicial review of the Refugee Review Tribunal decision and exercised his right of appeal.
The Applicant’s Litigation History
The Applicant's prior litigation history is set out in a helpful affidavit by Catherine Ruth Kelso, solicitor, affirmed on 13th May 2008. In that affidavit Ms Kelso points out that the Applicant applied for a Protection (Class XA) visa on 17th July 2006 and the application was refused by a Delegate of the Minister on 5th October in that year.
The Applicant then on 18th October 2006 applied to the Refugee Review Tribunal for a review of the Delegate's decision. However, as previously set out, the Tribunal did on 25th January 2007 hand down its decision affirming the decision of the Delegate not to grant the Applicant a Protection (Class XA) visa.
The Applicant then on 12th February 2007 commenced proceedings in this Court seeking review of the decision of the Refugee Review Tribunal. The application came before Cameron FM on 16th May 2007. His Honour delivered a decision that day dismissing the application with cost.
The Applicant then on 31st May 2007 appealed against that decision. On 13th August 2007 Madgwick J in the Federal Court exercising the jurisdiction of the Full Court of the Federal Court dismissed the appeal with costs.
On 6th September 2007, the Applicant then brought an application to the High Court of Australia for special leave to appeal from the decision of Madgwick J. On 27th March 2008 in the High Court Hayne, Crennan JJ dismissed that application for special leave to appeal. (See SZKEP v Minister for Immigration & Citizenship & Anor[5]).
[5] [2008] HCASL 137
Present Interlocutory Application
The Applicant then commenced proceedings again in this Court on 18th April 2008. The application came before this Court on a First Court Date on 12th May 2008 and it was listed for a Show-cause hearing today.
The Applicant has not appeared. The matter was stood down in the list in case the Applicant was late and had sent some sort of a message saying he had been hindered or delayed or prevented from attending but the Applicant has not appeared. No message has been received. I had originally planned to hear the matter last Friday 16th May 2008, but the Applicant told the Court that that day was inconvenient to him as he had to travel from Griffith.
So at the Applicant's request I did not list the matter for hearing on 16th May 2008 but adjourned it for hearing until today. The Applicant consented, however he has not appeared. He was called at 2:15pm and at 2:38pm. At 2:41pm the Applicant had still not appeared and I took the decision to deal with this matter in his absence under the provisions of r.13.03A(e) of the Federal Magistrates Court Rules. The time is now 2:55pm and the Applicant has still not appeared.
Quite clearly the Applicant is not going to appear and I am of the view that this matter should be finalised. I am satisfied that bringing a multiple application to the Court for review of the decision that has already been reviewed constitutes an abuse of process. I am quite satisfied that such a repeat application has little, if any, prospects of success. The argument given by the Applicant that he wishes to rely on the decision of the High Court of Australia in SAAP does not assist him.
He claims that on the last occasion that decision had not been handed down, but that is plainly wrong. The High Court handed down the decision in SAAP on 18th May 2005 well before the proceedings were heard before Cameron FM. The Applicant could have argued that case then had he chosen to do so.
Conclusion
The application would be dismissed as an abuse of process and it will be dismissed on the basis that the Applicant has not raised an arguable case for the relief claims.
I propose to make an order for costs in favour of the Minister for Immigration and Citizenship and I propose to order that no further application for review of the Tribunal's decision be accepted for filing without leave of the Court.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 29 May 2008
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