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MIGRATION - Application by respondent Minister for summary dismissal - whether application is an abuse of process - where applicant brought and later discontinued proceedings in the High Court - where applicant then filed an application for judicial review in the Federal Court - where this application was later dismissed for failure to comply with orders of the Court - where applicant then filed an application with the Federal Magistrates Court - where applicant did not attend hearing of Notice of Motion - whether costs should be awarded on an indemnity basis.

SZDYS v Minister for Immigration [2004] FMCA 823 (10 November 2004)

SZDYS v Minister for Immigration [2004] FMCA 823 (10 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYS v MINISTER FOR IMMIGRATION
[2004] FMCA 823




MIGRATION - Application by respondent Minister for summary dismissal - whether application is an abuse of process - where applicant brought and later discontinued proceedings in the High Court - where applicant then filed an application for judicial review in the Federal Court - where this application was later dismissed for failure to comply with orders of the Court - where applicant then filed an application with the Federal Magistrates Court - where applicant did not attend hearing of Notice of Motion - whether costs should be awarded on an indemnity basis.




Federal Magistrates Court Rules

Judiciary Act 1903 (Cth), s.39B

SZBIC v Minister for Immigration [2004] FCA 255

Applicant:
SZDYS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2002 of 2004




Delivered on:


10 November 2004




Delivered at:


Sydney




Hearing date:


10 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


No appearance




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The first applicant is appointed litigation guardian of the second applicant pursuant to Part 11, Rule 11.11 of the Federal Magistrate's Court Rules noting the first applicant's consent to being so appointed filed in this court on 1 October 2004.

(2) Application dismissed pursuant to Part 13, Rule 13.01 pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.

(3) The first applicant pay the respondent's costs assessed in the sum of $3,000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2002 of 2004

SZDYS



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. I have before me today an application now limited to dismissal of these proceedings on the grounds that they constitute an abuse of process. The relevant background and litigation history of the matter appears in an affidavit sworn by Andrea Jane Nesbitt of 24 September 2004. This indicates that the applicant was declined a protection visa on

20 February 2001, sought review of that decision on 30 March 2001, did not attend the hearing before the Refugee Review Tribunal which made its decision on 30 April 2002 and handed it down on the 28 May 2002.

2. The applicant then commenced proceedings in the High Court of Australia under writ number S439 of 2002 on 29 November 2002 but discontinued those proceedings on 10 April 2003. A few months later on 18 June 2003 the applicant filed proceedings in the Federal Court under matter S555 of 2003. In those proceedings Mansfield J gave directions on 29 September 2003 and pursuant thereto an amended application was filed on 20 November 2003. However, this amended application was considered the next day by Selway J who dismissed the application and ordered that the applicant pay $500 by way of costs for failure to comply with Mansfield J's orders.

3. The applicant took no steps either to set aside the orders of Selway J or appeal them. Instead on 29 June 2004 the applicant filed the current proceedings in this court. The proceedings filed utilised a standard form of application familiar to those of us who regularly deal with matters of this nature.

4. The first thing that can be said is that had the Department acted promptly this particular applicant could have left the country at some time after the beginning of July 2002 when no steps had been taken to exercise her rights to seek a review of the RRT decision. Had the Department acted promptly it could have arranged for the applicant to depart the country some time after 10 April 2003 when the High Court proceedings were discontinued. And had the Department acted promptly it could have arranged for the removal of the applicant some time after 21 December 2003 when it would appear that the applicant was not going to apply to set aside the orders of Selway J.

5. I make these points because all the courts in the Federal jurisdiction have been the subject of criticism for their delays in relation to refugee matters and yet the chronology which is in front of me indicates quite clearly that on each occasion that this applicant has lodged proceedings, now in all three of the Federal Courts, her applications have been dealt with within six months.

6. The applicant is not present today; she was not present before the Tribunal. She was represented in the Federal Court proceedings and she did attend the directions hearing when it was indicated to her that this application might be made. I am satisfied that this third application now in the lowest court in the Federal ranks is an abuse of process. The applicant has had sufficient opportunity to ventilate her cause but has failed properly to do so. In SZBIC v Minister for Immigration [2004] FCA 255, a matter on appeal from a Federal Magistrate where there was a similar history of proceedings, Moore J said at [21]:

"However, on a fair reading of the Federal Magistrate's reasons for judgment, his Honour almost certainly viewed the application before him as an abuse of process because it suffered from the same vice as the application which had been dismissed in this Court by Selway J. That is, it was an application for constitutional writs devoid of particulars disclosing any substantial basis for the prosecution of the application. It was open to the Federal Magistrate to form this view and dismiss the application on the ground that it was an abuse of process. While his Honour may have taken a different view given that the appellant was then unrepresented, he was not precluded from adopting the approach he did."

7. Although this is an application under s.39B of the Judiciary Act 1903 (Cth) it is an application for constitutional writs and the application itself is devoid of particulars disclosing any substantial basis for the prosecution of the application.

8. In these circumstances I am inclined to grant the order sought by the respondent who also asks for costs to be awarded against the applicant on an indemnity basis. It is not an unreasonable argument that if proceedings are an abuse then the person who abuses the process of the court should be made to pay the full costs of her actions. If the applicant had been here she may have been able to say something which might have persuaded me against this view but she has not attended even though I have seen as exhibits A and B copies of two letters serving her with affidavits and with the notice of motion itself. I am therefore prepared to accede to the representations of Ms Gibson and make the following orders.

(i) The first applicant is appointed litigation guardian of the second applicant pursuant to Part 11, Rule 11.11 of the Federal Magistrate's Court rules noting the first applicant's consent to being so appointed filed in this court on 1 October 2004.

(ii) Application dismissed pursuant to Part 13, Rule 13.01 pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.

(iii) The first applicant pay the respondent's costs assessed in the sum of $3,000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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