BZAR v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 447

FEDERAL COURT OF AUSTRALIA

BZAR v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 447

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 43

Federal Court Rules, O 52 r 10, O 62 r 4(2)(c)

Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 cited

BZAR OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No QUD 76 of 2005

SPENDER J
14 APRIL 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 76 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BZAR OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	14 APRIL 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

(1)The application for an extension of time within which to file and serve an application for leave to appeal be refused.

(2)The application for leave to appeal is refused.

(3)The applicant pay the costs of the respondent, of and incidental to the application to the Federal Court, on an indemnity basis fixed in the sum of $3000.

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 76 OF 2005

BETWEEN:	BZAR OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	14 APRIL 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In relation to this matter, there have been communications between the Registrar and the applicant.  BZAR wrote a letter dated 12 April 2005 to the Registrar saying:

   ‘I am the applicant.  I am unable to attend the hearing date 14/04/05 at Brisbane Registry.  I am sick.  I attached medical certificate.  Please consider my situation and adjourn the hearing. 

   I am not represented by solicitor.

   If you have any query, please contact my mailing address below.’

   That mailing address is a post office box.

2. The medical certificate is the usual uninformative medical certificate, which is relied on to justify, for medical reasons, non-appearance at a court hearing.  The medical certificate simply says:

   ‘This is to certify that ...’

   and then the applicant is named -

   ‘... a patient under my care, will be unable to attend normal duties [all in typing]  from 13.4.05 until 15.4.05 inclusive.’

   and then in handwriting the words:

   ‘Upper respiratory infection.’

   and it is signed Dr M. Kumaradiva. 

3. This letter, plus attachment, was brought to my attention and I directed the Registrar to inform BZAR that the medical evidence for an adjournment was insufficient, and that if the matter were to be adjourned on medical grounds it would require further material.  When the Deputy District Registrar phoned BZAR to impart this information to him, very shortly after the contact was made he hung up peremptorily.  Nothing in that material, and in particular in the medical certificate attached to it, provides a basis on which this matter ought to be adjourned. 

4. The circumstances of this application appear in the material, and also in the affidavit of Mr Johnson Lo which was filed on 30 March 2005. 

5. I propose to deal with the merits of the application for leave to appeal, rather than dismiss the matter on the basis of non-appearance by BZAR.  This matter was adjourned to today, and the contents of a further affidavit of Mr Johnson Lo are relevant to that circumstance.  I give leave to the respondent to file this affidavit and dispense with the requirements of service. 

6. I am presently concerned with what is hoped to be an appeal from a decision of Federal Magistrate Rimmer given on 8 March 2005, whereby an application filed in the Federal Magistrates Court on 10 December 2004 was dismissed.  The Federal Magistrate dismissed the application on the grounds that the proceedings in the Federal Magistrates Court were res judicata.  The arguments which were advanced to challenge the decision of the Refugee Review Tribunal had previously been raised and determined to the full extent of the rights of appeal open to the applicant.  Moreover, the Federal Magistrate ordered that no further applications in relation to the decision of the Refugee Review Tribunal dated 26 November 2002, handed down on 19 December 2002, be accepted for filing except by leave of the Court. 

7. The present application is in defiance of that order and is a clear abuse of process of the Court.

8. The history of the matter is as follows.  The applicant arrived in Australia on 29 September 2000 and applied for a Protection (Class XA) visa on 20 October 2000.  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused to grant the visa on 23 November 2000.  The applicant appealed and the Refugee Review Tribunal, on 26 November 2002, affirmed the decision not to grant a protection visa.

9. The applicant appealed to the Federal Court in the Sydney Registry, and on 21 February 2003 Gyles J transferred the matter to the Federal Magistrates Court.  Federal Magistrate Barnes dismissed the application on 20 June 2003.  The applicant appealed to the Federal Court and on 10 September 2003, in the exercise of the appellate jurisdiction of the Federal Court, Conti J dismissed the appeal.

10. On 2 October 2003 the applicant made application for special leave to appeal to the High Court.  On 27 September 2004, the applicant discontinued the application.  On 6 October 2004, he filed a further application for review in the Federal Magistrates Court, Sydney Registry.  At some time subsequent to that he discontinued those proceedings, and he then filed an application in the Federal Magistrates Court, Brisbane Registry, on 10 December 2004.  It is the dismissal of those proceedings with which this Court is now concerned.

11. The decision of the Federal Magistrates Court was interlocutory and, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Act”), leave to appeal is required to appeal from that interlocutory judgment. On such an application for leave, O 52 r 10 of the Federal Court Rules applies. What the applicant wishes to achieve in this present application is again to challenge the decision of the Refugee Review Tribunal which has decided, adversely to the applicant, the merits of his application and opportunity of review.

12. The Federal Magistrate was quite right in dismissing the application.  It follows, therefore, that there are no prospects of a successful appeal.  In those circumstances, an application for an extension of time within which to apply for leave to appeal, and any subsequent application for leave, is doomed to failure.  In those circumstances, there is no basis on which it would be proper for the Court to exercise its discretion to grant an extension of time within which to seek leave to appeal, and if granted, to seek leave to appeal. 

13. The proceedings in the Federal Magistrates Court are barred by operation of the doctrine of res judicata.  The draft notice of appeal does not contain any particulars of how it is said Federal Magistrate Rimmer erred when she dismissed the application.  The respondent Minister has suffered severe prejudice by having to expend resources and legal costs to defend a large number of proceedings initiated by the applicant since the matters were adversely determined in his case.

14. In these circumstances, the judgment of the Federal Magistrate is not attended with any doubt, and the applicant’s prospects of a successful appeal are nil.  I therefore refuse to grant to the applicant an extension of time to file and serve an application for leave to appeal, and I refuse to grant him leave to appeal.

15. As to costs, the Court has power pursuant to s 43 of the Act to award costs on an indemnity basis in appropriate circumstances. A Full Court constituted by Lee, Carr and Sackville JJ in Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 made an order for indemnity costs in favour of the Minister who had been ‘... put to the expense of unnecessary litigation’ and hence ‘should be recompensed in full.’  That observation applies in this particular case, and the Minister should be recompensed in full for the cost of defending the groundless application brought by the applicant for leave to appeal from a summary judgment dismissal.

16. Order 62 r 4(2)(c) of the Federal Court Rules provides for the awarding of a gross sum.  In this particular case, it is highly desirable that the costs of the Minister should be set in a fixed sum to avoid the expense and delay involved in a taxation.   I have had regard to the affidavit of Mr Lo filed today by leave which touches on the costs expended.  Having regard to that and the other matters to which I have referred, the orders that the Court makes are: 

    (1)The application for an extension of time within which to appeal, and the application for leave to appeal from the judgment of Federal Magistrate Rimmer, be refused; and

    (2)The applicant pay the costs of the respondent of and incidental to the application to the Federal Court, to be taxed on an indemnity basis,

    and I fix the sum of the costs in the sum of $3000.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:            19 April 2005

There was no appearance on behalf of the applicant
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 April 2005
Date of Judgment:	14 April 2005