BZAL of 2004 v MIMIA

[2005] HCATrans 622

[2005] HCATrans 622

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2005

B e t w e e n -

BZAL 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 9.33 AM

Copyright in the High Court of Australia

McHUGH J:   In January 2003, the Refugee Review Tribunal rejected the claim of the applicant, a Bangladeshi, for a protection visa on the ground that the applicant’s credibility was so damaged that his claims to have suffered past harm were considered fabricated.  In February 2003, the applicant applied for a review of the Tribunal’s decision to the Sydney Registry of the Federal Magistrates Court.  In June 2003, the Federal Magistrates Court dismissed the application.  On 3 November 2003, the Full Court of the Federal Court dismissed an appeal from the Federal Magistrates Court’s decision and on 24 November 2003, Gleeson CJ and Callinan J refused to grant the applicant special leave to appeal to this Court.

On 10 December 2004, the applicant filed an application in the Federal Magistrates Court for an order of review of the Tribunal’s decision.  In March 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 causes of action agitated in the application and because the order that the Federal Magistrates Court made to dismiss the applicant’s application for review of the Tribunal’s decision stands as a final order.  The Court also noted that to permit the applicant to re-litigate these causes of action would contravene the principles of estoppel that were articulated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and constitute an abuse of process.

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’s appeal had no prospects of success.  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 9.33 AM THE MATTER WAS CONCLUDED