SZJPG v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The matter presently before the Court is an application for leave to appeal filed 3 July 2008. The application identifies two applicants, the first applicant being SZJPG and the second as being SZJPH. Whilst the form of the application as filed identifies one of the applicants by that applicant's full name, it does not identify the names of both of the applicants. Indeed, in respect of the applicant who is identified, the person is misdescribed as an 'Appellant'. By the application, leave to appeal is sought from a judgment of Scarlett FM given on 16 June 2008 in respect of an application for constitutional writ relief filed in the Federal Magistrates Court of Australia on 8 May 2008. 2 The application for leave to appeal is confused, in that it suggests that leave to appeal is required, and also seeks an extension of time within which to file that application under Order 52, rule 5 of the Federal Court Rules. The application for leave to appeal also seeks relief in respect of a judgment of Smith FM given on 27 May 2008. This part of the application is somewhat surprising, as there is nothing before the Court which in any way connects the present applicants with a decision of Smith FM given on that day. 3 It is also suggested that an extension of time is required for filing a Notice of Appeal, in accordance with Order 52, rule 15 of the Federal Court Rules. As it transpires, the application for leave to appeal was filed within the requisite period of 21 days after the decision of Scarlett FM. Accordingly, no dispensation from compliance with Order 52, rule 5(2) of the Rules is necessary. 4 The present application is quite outrageous. It is brought in circumstances where applications for Protection (Class XA) visas were lodged on behalf of the applicants on 10 May 2006. The second applicant is a person whose claim for a protection visa was founded upon her status as the spouse of the first applicant who claimed to be entitled to protection obligations under the Refugees Convention, being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Refugees Protocol, being the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 5 The applicants sought review of the Minister's delegate's decision of 10 June 2006 to refuse them protection visas by lodging an Application for Review in the Refugee Review Tribunal on 23 June 2006. On 5 October 2006, the Tribunal affirmed the decision of the Minister's delegate not to grant protection visas to the applicants. 6 On 30 October 2006, the applicants apparently filed an application for constitutional writ relief in the Federal Magistrates Court of Australia which was heard and disposed of by Emmett FM, whose decision was handed down on 22 June 2007. In the proceedings before Emmett FM the first applicant apparently appeared in person. Emmett FM ordered that the application before her be dismissed with costs. 7 An appeal from that decision was brought to this Court which was heard and disposed of by North J on 9 November 2007. He ordered that the appeal be dismissed. 8 Thereafter, an application for special leave to appeal was apparently lodged in the High Court on 5 December 2007. Special leave to appeal was refused by the High Court, constituted by Gummow and Kiefel JJ, on 24 April 2008. 9 Unwilling to accept the judgment of the High Court on the special leave application, the applicants proceeded to file a fresh application seeking constitutional relief in the Federal Magistrates Court of Australia on 8 May 2008. The application set out three grounds without particulars (see SZJPG v Minister for Immigration & Citizenship [2008] FMCA 802 at [7]). The grounds advanced as follows: '1. The RRT denied proper application of law to the applicant. 2. The RRT denied natural justice to the applicant. 3. The RRT did not follow due procedure.' 10 In his reasons for judgment, Scarlett FM said at [8]: '8. This is a repeat application. Unfortunately, such applications are prevalent in this jurisdiction. These applicants have not attended Court. Their application was listed for a show cause hearing at 10.30 am. When the matter was called at 11.15 am there was no appearance by either applicant. There has been no reason given by means of a telephone call or a fax or any appearance by anyone to explain their absence. They have just not turned up. It is appropriate, however, for me to proceed to deal with the matter unde (sic) r.13.03A(e) of the Federal Magistrates Courts Rules and I propose to dismiss the application. Certainly I have been given in the Minister's response some four different reasons for dismissal. In my view, I should make it quite clear that the substantive application is an abuse of the process of the Court because it is clearly an abuse of process and I should dismiss it for that reason.' 11 The orders as made by Scarlett FM were as follows: '(1) The application for review of the decision of the Refugee Review Tribunal filed on 8 May 2008 is dismissed as an abuse of the process of the Court. (2) In the alternative the application is dismissed on the basis that the applicants have no reasonable prospect of successfully prosecuting the proceeding or claim. (3) The applicants are to pay the 1st respondent's costs fixed in the sum of $1200. (4) That the Registry of the Court [referring to the Federal Magistrates Court of Australia] be directed that no further application for review of the decision of the RRT signed on 18 September 2006 and handed down on 5 October 2006 … or for review of the decision of the delegate of the 1st respondent dated 10 June 2006 or for review of any other administration decision or action by any person or tribunal relating to the application for a protection visa lodged on 10 May 2006 should be accepted for filing without prior leave of the Federal Magistrate (sic).' 12 Rule 13.03A of the Federal Magistrates Court Rules 2001 relevantly provided: '13.03A If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following: … (e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.' 13 Rule 13.10 of the Federal Magistrates Court Rules 2001 provided: '13.10 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (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.' 14 The orders made by the learned Federal Magistrate would appear to have been made in exercise of the power conferred upon him by rule 13.10(c) and, in the alternative, rule 13.10(a). 15 When the application for leave to appeal was called this morning the applicants failed to appear after their names were duly called three times outside the Court. The application for leave to appeal was supported by an affidavit of, presumably, the first applicant sworn 3 July 2008, which was apparently accompanied by a draft Notice of Appeal. The grounds nominated in the draft Notice of Appeal were: '1. The Honourable Federal Magistrates Court erred in law in determining whether this matter was reviewable in the Federal Magistrates Court. 2. The Honourable Court also erred in law determining that the Federal Magistrates Court did not have the Jurisdiction to review this matter. 3. The Honourable Court failed to determine whether there was any jurisdictional error in the purported decision of the delegate. 4. The Federal Magistrate erred in law in determining that the application was an abuse of process.' 16 It is not entirely clear whether leave to appeal is necessary in relation to orders made under rule 13.10 of the Federal Magistrates Court Rules 2001 (see, for example, SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402). However, it is readily apparent from what has been set out above that this is a case in which an application for leave to appeal would be futile and, indeed, an appeal from the decision of the learned Federal Magistrate would inevitably fail if reliance were placed upon the grounds specified. 17 I have been asked to deal with the matter in accordance with Order 35A rule 2(1)(f) and rule 3(1)(a) of the Federal Court Rules. 18 Plainly, the applicants are in default by failing to prosecute their application. In the circumstances, it is appropriate that the application be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.