SZEKC v Minister for Immigration and Citizenship

Federal Court of Australia|2007-11-16|Before: Moore J, Collier J

REASONS FOR JUDGMENT 1 I have before me an application for leave to appeal from the decision of Smith FM made 2 October 2007. In that decision Smith FM dismissed an application by the applicant to set aside orders which his Honour had previously made on 14 August 2007 in the applicant's absence. 2 I understand that the orders of Smith FM of 2 October 2007 were also made in the absence of the applicant. His Honour made the orders of that date pursuant to r 13.03A(c) Federal Magistrates Court Rules 2001, which allows summary dismissal of an application for non-appearance of a party to proceedings. 3 His Honour's decision of 2 October 2007 was clearly an interlocutory decision and it is not in contention that leave to appeal is required. 4 The matter was listed for hearing before me, for not before 11 am this morning. There was no appearance before the Court by the applicant. The Court officer called the name of the applicant outside the Court at 11.15 am this morning and there was no response. I stood the matter down to allow my associate to call the applicant on the mobile phone number which was notified in the court file as his contact phone number. There was no answer to the phone call however my associate was able to leave a message on voicemail which appeared to be the applicant's voicemail. 5 When Court resumed I asked the Court officer once again to call the name of the applicant outside the Court but there was no response. 6 Mr Kennett for the first respondent tendered copies of three letters addressed to the applicant informing him of the date, time and place of this morning's hearing. The first letter dated 23 October 2007 was from the Registry to the applicant, and the other letters dated 6 November 2007 and 13 November 2007 were both from the solicitors for the respondents. 7 No reason has been given by the applicant for his failure to appear in Court this morning. This is particularly surprising given that today's hearing is in Griffith where it appears the applicant resides, and that it could be assumed that attendance at Court would be convenient. 8 Notwithstanding the failure of the applicant to appear in Court this morning I consider it both possible and appropriate to give judgment on his application based upon the material before me.

Background 9 The background to the application before me can be seen from the reasons for decision of Smith FM given 14 August 2007. As these reasons are brief, it is feasible to set them out in their entirety: "1. This is an application which reveals the abusive characteristics identified by Justice Moore in SZASP v Minister for Immigration & Citizenship [2007] FCA 771. The applicant has brought a second application to the Refugee Review Tribunal, after his first application to the Tribunal for review of a decision of a delegate was affirmed by a previous Tribunal decision. The validity of the earlier decision was upheld in the course of extensive judicial review litigation. 2. The applicant unsuccessfully sought judicial review in this Court, the Federal Court and the High Court (seeSZEKC v Minister for Immigration[2005] FMCA 758;SZEKC v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1370;SZEKC v Minister for Immigration & Multicultural & Indigenous Affairs[2006] HCA Trans 95). He then commenced a second round of proceedings, which met a similar fate in this Court, the Federal Court and the High Court (seeSZEKC v Minister for Immigration[2006] FMCA 456;SZEKC v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 1065;SZEKC v Minister for Immigration & Multicultural & Indigenous Affairs[2007] HCA Trans 225). 3. The new Tribunal decision which is the subject of the present application was made on the ground that the Tribunal did not have jurisdiction to entertain a second application to review the delegate's decision. The reasons given by the Tribunal are obviously correct. No arguable case for relief is shown in the material filed by the applicant, and in all the circumstances it appears appropriate to dismiss the application under r 44.12(1)(a). 4. The applicant has not attended this morning, but I have decided to proceed in his absence under r 13.03A(e). The applicant has been warned that the Minister would be seeking the dismissal of his matter this morning. 5. In view of the history of the applicant in bringing abusive proceedings, I consider it appropriate to give a direction requiring the Registry to refer to me any future applications sought to be filed in this Court in relation to his protection visa application. He will need to show some legal merits before I give him leave to commence any new litigation of this character. 6. The applicant will be able to apply to me also to have the present order set aside, but he will need to show some merit in the present application as well as an explanation for his absence." 10 I note that his Honour, in making the orders of 14 August 2007, proceeded under r 13.03A(e) Federal Magistrates Court Rules 2001 which permits the Court, in the absence of a party to the proceedings, to proceed with the hearing generally or in relation to any claim for relief in the proceeding.

The present application 11 The application of the applicant in this matter was supported by an affidavit sworn by the applicant on 9 October 2007, in which the applicant set out draft grounds of appeal as follows: "1. The Federal Magistrates Court had erred in finding that 'relocation' formed a separate and independent basis for the decision of the 'Tribunal' as 'relocation' was only considered by the RRT, against the applicant's claim of religious persecution. 2. The Federal Magistrates Court had erred in not finding that the RRT erred in failing to comply with s 424A in respect of the matters relied upon as supporting its finding that the Applicant could reasonably be expected to relocate within the country. 3. The Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant. Constructive failure of jurisdiction: the Tribunal did not decide the real question in the case, as it had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future." 12 In considering these draft grounds of appeal I note that they are not referable to the decision of his Honour of 2 October 2007. Rather, they are clearly grounds referable to substantive claims of the applicant.

Findings 13 This matter reveals what appears to be an extraordinary abuse by the applicant of court process referable to his claims of entitlement to protection obligations under the Migration Act. Indeed, it appears from the summary of these proceedings in the reasons for decision of Smith FM, which summary is not in dispute, that this represents the third time (including twice - so far - to the High Court) that the applicant has sought to employ the Court and appeal process to revisit the original decision of the Tribunal in August 2004 affirming the decision of the Minister's delegate that he was not entitled to such protection obligations. I agree with Smith FM that comments of Moore J in SZASP as to abuse of process are relevant to this application. 14 As previously held by the Full Court in Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, it is appropriate that leave be granted from an interlocutory judgment where the judgment was attended by sufficient doubt to warrant it being reconsidered and that substantial injustice would result if leave were to be refused. However in this case the applicant is not entitled to such leave. No circumstances have been demonstrated to me that the decision of his Honour of 2 October 2007 - or, indeed the decision of his Honour of 14 August 2007 to which the later orders relate - ought be reconsidered. Further, given: · the history of this matter, · what appears to be an abuse of process by the applicant, and · the fact that, even if an appeal against the orders of 2 October 2007 were successful, an appeal against the orders of Smith FM of 14 August 2007 based on the grounds in the applicant's draft notice of appeal would have no prospects of success, no substantial injustice would be caused if leave were to be refused. 15 Accordingly, the appropriate order is that the application be dismissed.

The application be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Applicant: The applicant did not appear

Solicitor for the Respondent: Australian Government Solicitor

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