BZAS of 2004 v MIMIA

[2005] HCATrans 619

[2005] HCATrans 619

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2005

B e t w e e n -

BZAS 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:   In October 2002, the Refugee Review Tribunal rejected the claim of the applicant, a Bangladeshi, for a protection visa because the Tribunal found the applicant’s account of his political and religious history in Bangladesh to be disingenuous and the Tribunal was not satisfied that there is a real chance of the applicant being persecuted in Bangladesh because of his association in Australia with the Baptist church.  In February 2003, the Federal Court dismissed an application by the applicant for review of the Tribunal’s decision and in August 2003, the Full Court of the Federal Court dismissed an appeal from the Federal Court.  Justices Kirby and Heydon 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 filed an application in the High Court for the constitutional writs of certiorari and mandamus.  Justice Callinan dismissed the application on 29 November 2004.

In December 2004, the applicant commenced proceedings in the Federal Magistrates Court for further review of the Tribunal’s decision.  In March 2005, the Federal Magistrates Court dismissed the application on the grounds that the principles of estoppel that were articulated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied because the applicant had sufficient opportunity to raise before the Federal Court and this Court all of the grounds of review that the applicant raised in his application. The Federal Magistrate Court also held that the application was 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 proposed 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 9.32 AM THE MATTER WAS CONCLUDED