BRG AA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 421

FEDERAL COURT OF AUSTRALIA

BRG AA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 421

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

BRG AA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No QUD 92 OF 2005

SPENDER J
BRISBANE
12 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 92 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BRG AA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	12 APRIL 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve an application for leave to appeal is refused.

2.The application for leave to appeal is refused.

3.The applicant pay the costs of the respondent on an indemnity basis fixed in the sum of $2500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 92 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BRG AA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	12 APRIL 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant applied for a Protection (Class XA) visa on 17 April 2002.  On 6 August 2002, a delegate of the Minister refused to grant the protection visa.  The applicant applied to the Refugee Review Tribunal for a review of the Tribunal's decision.  The Tribunal dismissed that application on 1 September 2003.  The applicant appealed to the Federal Court, Sydney Registry on 17 October 2003.  The appeal was dismissed by Hely J on 9 February 2004, who ordered that the application be dismissed with costs.

2. On 5 January 2005, the applicant filed, in the Brisbane Registry of the Federal Magistrates Court, an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) seeking review of a decision of the Refugee Review Tribunal, dated 1 September 2003 and handed down on 25 September 2003. On 15 March 2005, Federal Magistrate Baumann summarily dismissed the application. The orders made by Federal Magistrate Baumann were these:

   (1)The Application is dismissed.

   (2)The Applicant shall pay the Respondent's costs of and incidental to the Application fixed in the sum of $4,600 within 60 days.

3. On 4 April 2004, the applicant filed a document headed Application for Leave to Appeal in which he sought an extension of time within which to appeal the judgment of Federal Magistrate Baumann given on 15 March 2005.  On the following day, the applicant faxed to the Brisbane Registry a document headed again, Application for Leave to Appeal in which he simply sought leave to appeal from that judgment.

4. When the matter was called on this morning, eventually the applicant was able to appear by telephone.  He agreed that this was the second time that he had sought to challenge the decision of the Refugee Review Tribunal dated 1 September 2003.  The applicant said that he was now in a position, which he wasn't at the time of his appeal to Hely J, to seek to argue that there was some jurisdictional error in the decision of the Tribunal.

5. The question of an application for an extension of time and, if such extension is granted, leave of the Court to file an appeal, in my judgment, has to be refused for the following short reasons. 

6. The question of an extension of time, or the grant of leave to appeal, cannot be considered in the absence of an assessment of the appellant's prospects of successfully prosecuting his appeal.  It is plain, beyond argument, that his application to appeal the judgment of Federal Magistrate Baumann has no prospects of success, because he is seeking to challenge again the decision of the Tribunal, made 1 September 2003 and that is a matter which is res judicata, having already been decided to finality by Hely J.  For these reasons, the applicant's proposed appeal has no prospects of success. 

7. My orders will therefore be:

   1.The application for an extension of time to file and serve an application for leave to appeal is refused.

   2.The application for leave to appeal is refused.

   3.That applicant pay the costs of the respondent on an indemnity basis fixed in the sum of $2500.

   I certify that the preceding five (5) numbered paragraphs
   are a true copy of the Reasons for Judgment herein of
   the Honourable Justice Spender.

   Associate:

   Dated:  12 April 2005

   The Applicant appeared on his own behalf

   Solicitor for the Respondent:                Clayton Utz

   Date of Hearing:  12 April 2005

   Date of Judgment:  12 April 2005