BZAG of 2004 & Ors v MIMIA

[2005] HCATrans 922

[2005] HCATrans 922

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 2005

B e t w e e n -

BZAG OF 2004

First Applicant

BZAH OF 2004

Second Applicant

BZAI OF 2004

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY 14 NOVEMBER 2005, AT 2.19 PM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The applicants are husband, wife and child and are citizens of Bangladesh.  The first applicant arrived in Australia on 31 October 1995.  The second applicant arrived in Australia in June 1998 and the third applicant was born in Australia in October 2000.  The first applicant claims to be entitled to refugee status by reason of a well‑founded fear of political persecution.  The second applicant claims to be at risk of persecution due in part to her membership of a particular social group of women in Bangladesh and in part because of her husband’s political activities.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicants protection visas.  The Tribunal found that the applicants’ evidence lacked credibility and it was unable to be satisfied on the material before it that the applicants had a well‑founded fear of persecution should they return to Bangladesh.

The applicants sought judicial review of the Tribunal’s decision in the Federal Court.  Gyles J dismissed the application and an appeal to the Full Court of the Federal Court (Sackville, Allsop and Jacobson JJ) was dismissed.  The applicants then lodged new proceedings in the Federal Magistrates Court.  Subsequently, Driver FM granted the applicants leave to discontinue the proceedings and ordered that no further application by the applicants be accepted for filing except by leave of the Federal Magistrates Court.  The applicants then applied to this Court for orders nisi for constitutional writs.  That application was remitted to the Federal Court where it was dismissed by Emmett J.  His Honour also ordered that no further application be accepted for filing without the leave of the Federal Court.  The applicants then sought special leave to appeal to this Court from the earlier decision of the Full Court of the Federal Court.  A certificate of abandonment was subsequently issued respecting that special leave application.

A further application for review was lodged in the Federal Magistrates Court.  That application was summarily dismissed with costs assessed on an indemnity basis

fixed in the sum of $3,000.  A purported appeal to the Federal Court was treated by Spender J as an application for an extension of time in which to apply for leave to appeal and was dismissed, also with costs on an indemnity basis fixed at $3,000.  The applicants now seek special leave to appeal from the decision of Spender J.

In these circumstances there would be no prospects of success in any appeal to this Court from the Federal Court.  The history of the matter amply demonstrates that Spender J was correct in describing the applicants’ proceedings in the Federal Magistrates Court as “a significant and obvious abuse of the process” of that Court.  Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Kirby J and myself.

AT 2.22 PM THE MATTER WAS CONCLUDED