BZAD of 2004 v MIMIA

[2005] HCATrans 617

[2005] HCATrans 617

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2005

B e t w e e n -

BZAD OF 2004

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2005, AT 9.31 AM

Copyright in the High Court of Australia

McHUGH J:   In December 2002, the Refugee Review Tribunal rejected the claim of the applicant, a Bangladeshi, for a protection visa on the grounds that the applicant was not a credible or reliable witness, and that his claims to be associated with an author, Taslima Nasreen, were fabricated.  In May 2003, the Federal Court dismissed an application by the applicant for review of the Tribunal’s findings of fact and in November 2003, the Full Court of the Federal Court dismissed an appeal from the Federal Court. Justices Kirby and Heydon JJ of this Court dismissed an application on 10 September 2004 for special leave to appeal from the decision of the Full Court of the Federal Court.  In September 2004, the applicant commenced proceedings in the Federal Magistrates Court seeking orders of certiorari, prohibition and mandamus against the Tribunal, on the grounds that the Tribunal fell into jurisdictional error and breached the rules of natural justice and procedural fairness.  In November 2004, the applicant discontinued this application by filing a notice of discontinuance.

On 10 December 2002, the applicant filed an application in the Federal Magistrates Court for an order of review of the Tribunal’s decision.  In February 2005, the Federal Magistrates Court dismissed the application on the ground that the principles of res judicata applied because the cause of action that the applicant pursued before the Federal Court is the same, in substance, as the cause of action agitated in the application.  The Magistrates Court also ordered the applicant not to file any further applications to review the Tribunal’s decision without leave of the court.

The Federal Court refused an application for an extension of time in which to file and serve an application for leave to appeal the interlocutory judgment of the Federal Magistrates Court because the applicant did not offer an explanation as to why the application was filed out of time and because the applicant’s notice of appeal did not particularise the errors of the Federal Magistrate’s decision.  The Federal Court also refused an application for leave to appeal the decision of the Magistrates Court and ordered the applicant to pay the respondent’s costs on an indemnity basis.

The applicant’s special leave application complained of errors of law and procedural errors.  The applicant also relied on Muin v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601, but did not demonstrate the necessary factual basis. However nothing in the special leave application gives any ground for thinking that an appeal has any prospects of success.

The application is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 9.31 AM THE MATTER WAS CONCLUDED