SZJZK v Minister for Immigration & Anor [2009] FMCA 75 (2 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJZK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 75

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicants protection visas. PRACTICE & PROCEDURE – Summary dismissal – abuse of process – where the decision of the Refugee Review Tribunal has been previously the subject of judicial review – where application has no reasonable prospects of success.

Federal Magistrates Court Rules 2001, r.13.10

SZJZK v Minister for Immigration & Anor (2007) FMCA 1698 SZJZK v Minister for Immigration & Citizenship (2008) FCA 177 SZJZK v Minister for Immigration & Citizenship & Anor (2008) HCASL 346

Applicant:

SZJZK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3416 of 2008

Judgment of:

Scarlett FM

Hearing date:

2 February 2009

Date of Last Submission:

2 February 2009

Delivered at:

Sydney

Delivered on:

2 February 2009

REPRESENTATION

The Applicant:

No Appearance

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is summarily dismissed under rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
(2) In the alternative the application is dismissed under rule 13.10(c) of the Federal Magistrates Court Rules 2001 on the basis the proceedings is an abuse of the process of the Court.
(3) The applicant is to pay the First Respondent’s costs fixed in the sum of $1000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3416 of 2008

SZJZK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 19 December 2006. The application, however, was not filed until 23 December 2008, along with an affidavit in support. The Minister filed a notice of appearance and a response on 7 January 2009; an amended response, to which I shall return shortly, on 8 January; and an affidavit of Audrey Lissane Echevarria, on
   9 January 2009.
2. The amended response seeks summary dismissal of the application with costs and, indeed, an order that no further application for review of the Tribunal decision or the delegate's decision be accepted for filing without leave of the Court. The Minister seeks the application be dismissed under rule 13.10(a) of the Federal Magistrates Court rules on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding and in the alternative under rule 13.10(c) on the basis that the proceeding is an abuse of process of the Court.
3. It should be stated at this stage that the applicant has not attended Court today. The matter was called at 11.55 am and again at 12.30 pm. It was listed for 11.30 am. An interpreter in the Bengali language was made available and has always been available and is presently in Court now. There is no appearance by or on behalf of the applicant and no message has been received indicating that the applicant has been hindered, delayed, or prevented from attending Court due to illness, injury or any other emergency. The applicant has just not appeared.
4. The circumstances are, however, at the Minister for Immigration & Citizenship asks the Court to proceed with the hearing generally as the Court has the power to do under rule 13.03C(1)(e). The reason for doing so is that the Minister has brought to the Court's attention that this is a repeat application in respect of a Tribunal decision that has already been the subject of judicial review application.
5. The affidavit of Audrey Lissane Echevarria sets out in commendable detail the facts upon which the Minister relies. A summary of those facts is that the Tribunal signed its decision on 30 November 2006, and handed that decision on 19 December 2006. The applicant commenced proceedings in this Court for judicial review of the Tribunal decision. That application was heard on 27 September 2007 and dismissed by his Honour Nicholls FM on 11 October 2007.[1]
6. The applicant appealed against that decision of the Federal Magistrates Court and on 27 February 2008 his Honour Jacobson J dismissed the appeal with costs.[2]
7. However, on 25 March 2008, the applicant filed an application to the special leave to appeal the decision of Jacobson J. On 12 June 2008, their Honours Hayne, Crinnan JJ in the High Court dismissed that application for special leave to appeal.[3]
8. What has then happened is that the applicant has commenced these proceedings again in this Court. Clearly, there is no basis for such an application to be entertained. The decision of the Refugee Review Tribunal has already been reviewed on its merits by the Federal Magistrates Court and the decision has been upheld on appeal by the Federal Court and an application for special leave to appeal to the High Court has been dismissed.
9. The applicant has been aware of the fact that such an application for summary dismissal would be made today. Ms Crittenden, who appears for the Minister today, has tendered a copy of a letter, dated 12 January 2009 from the Minister's lawyers to the applicant enclosing by way of service a copy of the affidavit of Audrey Lissane Echevarria, to which I have previously referred.
10. The Minister's lawyers go on to say:
    • We note that this matter is listed for a first Court date on Monday, 2 February 2009 at 11.30 am before Scarlett FM in the Federal Magistrates Court, Court 7B, Level 7, John Maddison Tower, 88 Goulburn Street, Sydney. We will seek summary dismissal of your application of first Court date and intend to read and rely on the enclosed affidavit. If you do not attend the hearing either in person or by legal representative, we are instructed to seek to have your matter dismissed with costs.
11. Well, the applicant has not attended the hearing, either in person or by legal representative. It is appropriate that this matter should be dealt with insofar as it is a summary dismissal application, and it is quite clear that the application should be summarily dismissed on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The case has already been heard. There are no grounds for hearing it again. It would also appear to me to be an abuse of the process of the Court.
12. I am not prepared at this stage to go so far as to make any order forbidding any further application for review to be filed without leave of the Court, but if the applicant does any such proceeding in the future I would have no doubt that this Court would take a very serious view of what would appear to me to be an abuse of process.
13. There is an application for costs on behalf of the first respondent Minister in the sum of $1000. That is an appropriate figure. The applicant is to pay the first respondent's costs fixed in the sum of $1000. I require a transcript of my reasons for this decision. The applicant is removed from the list of cases awaiting finalisation.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 10 February 2009

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[1] SZJZK v Minister for Immigration & Anor (2007) FMCA 1698.
[2] SZJZK v Minister for Immigration & Anor (2007) FMCA 1698.
[3] SZJZK v Minister for Immigration & Citizenship & Anor (2008) HCASL 346.