SZBMF v Minister for Immigration

[2006] FMCA 730

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMF v MINISTER FOR IMMIGRATION [2006] FMCA 730

MIGRATION − Application to review decision of delegate where Tribunal decision already reviewed − where no decision by Tribunal as application out of time – where no appearance by applicant before the Court.

Federal Magistrates Court Rules 2001

Applicant: SZBMF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number: SYG579 of 2006

Judgment of: Raphael FM

Hearing date: 8 May 2006

Date of last submission: 8 May 2006

Delivered at: Sydney

Delivered on: 8 May 2006

REPRESENTATION

For the Applicant: No appearance

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. Applicant pay the respondent's costs assessed in the sum of $1,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG579 of 2006

SZBMF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the respondent Minister has sought an order dismissing the substantive application summarily on a number of grounds including the ground that the application is an abuse of the processes of this court.  The substantive application is of a type that has become distressingly familiar to the court, namely an application made to review a decision of a delegate after proceedings have gone all the way to the High Court in relation to a decision of the Tribunal. 

2. The only difference between this case and most of those that have come before me previously is that the applicant's substantive case was not ever heard by the Tribunal because he filed his application out of time.  To that extent the merits of his claim to be a person to whom Australia owed protection obligations has not been tested by the Refugee Review Tribunal.

3. However, Federal Magistrate Driver, in a lengthy and well reasoned judgment in SZBMF v Minister for Immigration [2005] FMCA 925, determined that the court was unable to provide a review of the decision of the Tribunal and his Honour's views were upheld by Graham J in the Federal Court. The High Court declined to grant special leave.

4. In my view there would have been no grounds upon which I could have dealt with this application and I would have found that the application was itself an abuse of process.  However, I am not required to do this because the applicant has not appeared some 25 minutes after the case was due to be heard and after his name was called. 

5. I therefore dismiss the application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001. I order that the applicant pay the respondent's costs which I assess in the sum of $1,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: