BZAR of 2004 v MIMIA

[2005] HCATrans 621

[2005] HCATrans 621

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B36 of 2005

B e t w e e n -

BZAR 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 9.32 AM

Copyright in the High Court of Australia

McHUGH J:   On 26 November 2002, the Refugee Review Tribunal rejected the claim of the applicant, a Bangladeshi, for a protection visa because the Tribunal did not accept that the applicant was targeted by members of the Awami League in June 1996 by reason of his membership of the BNP, that the applicant had had false charges laid against him, or that the applicant was a leading or prominent activist in the BNP party.  In February 2003, the Federal Court transferred an appeal of the Tribunal’s decision to the Federal Magistrates Court.  The Federal Magistrates Court dismissed the application in June 2003.  The applicant appealed the decision of the Federal Magistrates Court to the Federal Court, which dismissed the appeal in September 2003.  The applicant discontinued an application for special leave to appeal to the High Court in September 2004.

On 6 October 2004, the applicant filed an application in the Sydney Registry of the Federal Magistrates Court for an order of review of the Tribunal’s decision.  The applicant later discontinued this proceeding, but filed another application in the Brisbane Registry of the Federal Magistrates Court on 10 December 2004.  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 and by the application to the Sydney Registry of the Federal Magistrates Court is the same, in substance, as the cause of action agitated in the application.

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