SZMCS v Minister for Immigration & Anor (No.2)

[2009] FMCA 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 253

MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – repeat application.

PRACTICE & PROCEDURE – Summary dismissal – where no reasonable cause of action disclosed – abuse of process – whether frivolous or vexatious.

Migration Act 1958 (Cth) s.474

NAFG v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2003] FMCA 558
SZMCS v Minister for Immigration & Anor [2008] FMCA 931
SZMCS v Minister for Immigration & Anor [2009] FMCA 49

Applicant: SZMCS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3248 of 2008

Judgment of: Scarlett FM

Hearing date: 19 March 2009

Date of Last Submission: 19 March 2009

Delivered at: Sydney

Delivered on: 19 March 2009

REPRESENTATION

Applicant: Appeared via telephone link

Solicitor for the Respondent: Ms Weston

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3248 of 2008

SZMCS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application to set aside an order that was made on 19^th January 2009. On that day the Court dismissed the Applicant’s application for review of a decision of the Refugee Review Tribunal.  The Court did so under the provisions of r. 13.03C of the Federal Magistrates Court Rules because the Applicant had failed to attend the Court hearing. (See SZMCS v Minister for Immigration & Anor[1]).

   [1] [2009] FMCA 49

2. The Applicant has said in his affidavit that he could not attend the hearing on that day because he had financial hardship and the time for the hearing was very short. He had faxed a letter to the Court on 15^th January 2009 in which he said he was not attending due to his financial hardship.  He asked the Court to adjourn the hearing that was to take place on 19^th January 2009.  I declined to adjourn the hearing and proceeded to dismiss the application. Essentially the Applicant has given the same reason to the Court today as he gave prior to the hearing.

3. The solicitor appearing for the Minister, Ms Weston, advised the Court that the Minister opposed the application to set aside the decision.  She referred the Court to the decision of NAFG v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[2].  That was a decision by Barnes FM relating to an application to set aside an earlier decision.  At paragraph 5 of her decision, her Honour relied on the decision of Phipps FM in M60 v Minister for Immigration (No 2)[3] where his Honour had set out that there were two matters that needed to be established. Barnes FM quoted Phipps FM as saying:

   First there needs to be an explanation for the failure to appear, and secondly, it needs to be shown that there is an arguable case.  The power is generally not to be exercised unless the applicant is able to show that by accident, and without fault on his part, the order was made without his being heard.

   [2] [2003] FMCA 558

   [3] [2003] FMCA 429

4. Her Honour in NAFG considered the Applicant’s explanation for his absence which included the production of a medical certificate. She then went on to consider whether or not the applicant had shown that there was an arguable case.  In that matter, Her Honour said:

   I have considered whether anything raised by the applicant in his application, written argument, or in what was said in Court today, establishes that he has an arguable case.  However, I am not satisfied that he has established an arguable case.[4]

   [4] See NAFG at [11].

5. It is appropriate for this Court to take the same approach and I note that the Applicant’s explanation for his decision not to attend was brought about by his claimed financial hardship.  That was same explanation as he gave on the previous occasion.  I consider it appropriate to consider whether he has shown that he has an arguable case even though I am not persuaded that his explanation holds a great deal of merit. 

Application for Summary Dismissal

1. The fact is that the hearing on 19^th January 2009 was brought about by the Minister’s application filed on 17^th December 2008 for summary dismissal of the Applicant’s application.

2. The Minister sought that the application be summarily dismissed under the provisions of r. 13.10 for three reasons:

   a)No reasonable cause of action is disclosed in relation to these proceedings.

   b)The proceeding or claim for relief is frivolous or vexatious; or

   c)The proceeding or claim for relief is an abuse of the process of the Court.

3. That application was supported by an affidavit of Gregory Joseph Johnson, solicitor, sworn on 16^th December 2008. Ms Weston, who appears for the Minister today, relies on that same affidavit. The affidavit sets out a comprehensive history of the Applicant’s litigation. 

Applicant’s Litigation History

1. The facts are that the applicant applied for a Protection (Class XA) visa on or about 27^th August 2007. On 23^rd November 2007 a delegate of the Minister refused the application for a Protection (Class XA) visa.  The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 21^st December 2007.  In a decision that was signed on 20^th February 2008 and handed down on 11^th March 2008 in that year, the Tribunal dismissed the application for review. 

2. The Applicant then commenced proceedings in this Court on 4^th April 2008. His application sought judicial review of the Tribunal decision.  That application was heard in this Court on 7^th July 2008. On that occasion, Driver FM dismissed the application under the provisions of r. 44.12(1)(a).  The decision of the Court was that the Applicant’s Show cause application failed to disclose an arguable case of jurisdictional error.  (See SZMCS v Minister for Immigration & Anor[5]).

   [5] [2008] FMCA 931

3. The Applicant then commenced proceedings in the Federal Court by a Notice of Appeal on 23^rd July 2008. That matter, which was technically an application for leave to appeal, was heard and dismissed by Jagot J on 14^th November 2008.

4. The Applicant then commenced further proceedings in this Court on 9^th December 2008 seeking judicial review of the same decision of the Refugee Review Tribunal. It was that application that led to the application in the case filed by the Minister on 17^th December 2008 seeking summary dismissal.

5. On 19^th January 2009, I dealt with the matter in the absence of the Applicant. (See SZMCS v Minister for Immigration & Anor[6]).

   [6] [2009] FMCA 49

6. The Applicant now seeks to have that decision set aside and proceed with his original application for review of the Tribunal decision.  I have already indicated my lack of satisfaction with the explanation for non‑attendance on 19^th January 2009. However, even if there were a satisfactory explanation, it is clear that it would be futile to set aside the decision to dismiss the application. The reason is that the application for review of the decision of the Refugee Review Tribunal has already been heard and dismissed by this Court. 

Conclusion

1. The Applicant sought leave to appeal against that decision but this was refused. What the Applicant has done is just turn around and start again. This Court has no power to rehear matters that have already been finalised. It would lead to chaos if the Court attempted to exercise such a power. Even if the Applicant were let in to argue his substantive application, it is clear that the application is doomed to fail. 

2. Accordingly, I dismiss the application to reinstate the Applicant’s application.

3. There is an application for costs on behalf of the First Respondent Minister in the sum of $1,400.00.  The Applicant has been unsuccessful in his claim and it is appropriate for the Court to make an order for costs in favour of the Respondent.  The amount sought is $1,400.00 and it covers amongst other things the appearances on 20^th February 2009 and again today.  It is an appropriate figure. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  30 March 2009