SZINY v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 552

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of application at the first court date – no arguable basis for the order sought – applicant attempting to secure RRT review of a delegate’s decision more than once.

Federal Magistrates Court Rules 2001 (Cth)

SZIIV v Minister for Immigration & Anor [2006] FMCA 322

Applicant:

SZINY

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG857 of 2006

Judgment of:

Driver FM

Hearing date:

19 April 2006

Delivered at:

Sydney

Delivered on:

19 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms H Dejean
Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed, pursuant to rule 44.12(1)(a) 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 in accordance with rule 44.15(1) and Item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG857 of 2006

SZINY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application seeking an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The decision of the RRT was made on 13 March 2006. The application to the Court was filed on 22 March 2006. On that basis and notwithstanding the Minister's response filed on 3 April 2006 I find that the application was made within time.
The problem with the application is that it is directed to a second decision by the RRT. The RRT had at an earlier stage already dealt with the applicant's protection visa claims. The second decision of the RRT was limited to the question of its jurisdiction. It appeared to me that the application before the Court did not direct itself to the real issue. With that in mind, I ordered an immediate hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The Minister relies on an affidavit by Andras Markus made on 11 April 2006. That affidavit details the litigation history relating to the first RRT decision. That first decision was made on 17 October 2002. Mr Markus's affidavit which I accept details the various attempts that the applicant has made to have that decision overturned. All of those attempts were either unsuccessful or abandoned. It seems beyond question that the first RRT decision was free from any jurisdictional error. Any further attempt by the applicant to seek judicial review of the first RRT decision in this Court would now be out of time. Perhaps with that in mind the applicant made a second application to the RRT. The RRT correctly found that it had no jurisdiction to deal with that second application.
The circumstances are indistinguishable from those that I dealt with in SZIIV v Minister for Immigration & Anor [2006] FMCA 322. The second application to the RRT was an abuse of the RRT’s process. The application to this Court is an abuse of this Court's process.
I will dismiss the application for the same reasons as I advanced in SZIIV. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in accordance with the Court scale. The applicant doubts his capacity to pay but that is not a reason for the Court to refrain from making a costs order. Scale costs in the present circumstances are $1,000.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 April 2006

The case of SZINY v Minister for Immigration was heard by the Federal Magistrates Court of Australia, where the applicant, SZINY, sought to challenge a decision of the Refugee Review Tribunal (RRT). The RRT had already ruled on the applicant's protection visa claims once, and subsequently issued a decision concerning its jurisdiction regarding a second application from the applicant. The Federal Magistrates Court was called upon to review this decision and consider whether it was appropriate to grant the relief sought by the applicant.

The central legal issue in this case was whether the Federal Magistrates Court should entertain an application that sought to review a decision of the RRT, where the applicant had already unsuccessfully attempted to challenge the RRT's first decision on multiple occasions, and was now attempting to do so for the second time. The court had to determine if the applicant's second application to the RRT, and subsequently the Federal Magistrates Court, was an abuse of process.

In its judgment, the court found that the applicant's second application to the RRT was an abuse of the tribunal's process, as the applicant had already unsuccessfully attempted to challenge the RRT's first decision. The court considered the circumstances to be indistinguishable from those in a previous case, SZIIV v Minister for Immigration & Anor [2006] FMCA 322, where the court found that the applicant's second application to the RRT was an abuse of the tribunal's process. Consequently, the Federal Magistrates Court held that the applicant's application to the court was also an abuse of its process. The court dismissed the application, finding that there was no arguable basis for the order sought. The court further ordered that the applicant pay the first respondent's costs and disbursements in accordance with the Federal Magistrates Court Rules.

In summary, the Federal Magistrates Court dismissed the applicant's application to review the RRT's decision, finding that it was an abuse of process for the applicant to seek review of the RRT's decision for the second time. The court ordered that the applicant pay the first respondent's costs and disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established