S328 of 2003 v MIMIA & Anor

[2007] HCATrans 171

[2007] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S294 of 2006

B e t w e e n -

S328 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 APRIL 2007, AT 9.26 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of Bangladesh who claims to fear political persecution arising from his membership of the Bangladeshi National Party.  As long ago as 20 December 1998, a delegate of the respondent Minister refused the applicant's application for a protection visa because the delegate was not satisfied that the applicant faced a well‑founded fear of persecution on political grounds.  The present application to this Court is but the latest of a string of applications over the last nine years in which the applicant has sought to challenge that decision.

On 6 July 2000, the Refugee Review Tribunal affirmed the delegate's decision.  Then, on 18 June 2003, the applicant made an application to this Court which was remitted instanter to the Federal Court.  The remitted application for an order nisi was dismissed by Jacobson J on 29 September 2005.  On 18 October 2005, the applicant filed a notice of motion in the Federal Court which was heard by Wilcox J who treated it as an application for leave to appeal from the judgment of Jacobson J.  Wilcox J dismissed the motion on 23 November 2005 as the applicant had failed to identify any jurisdictional error in the Tribunal's decision.  The applicant then filed an application in the Federal Magistrates Court on 13 December 2005 which was discontinued on 15 December 2005.  He also filed a notice of motion in the Federal Court on 14 December 2005 which was dismissed by Wilcox J on 3 February 2006.

The most recent round of litigation was instituted by an application to the Federal Magistrates Court which was dismissed by Emmett FM on 10 May 2006. To the extent that that application related to the delegate's decision it was incompetent by reason of s 476 of the Migration Act 1958 (Cth), and to the extent that it related to the Tribunal's decision it was incompetent by reason of s 477 of the Act as it was made well out of time; an extension of time having been properly refused by the Magistrate. The applicant applied for leave to appeal to the Federal Court, and that application was dismissed by Moore J on 4 August 2006 as there were no prospects of success in any appeal.

In this Court, the applicant has not dealt with the threshold issue that the proceedings he instituted in the Federal Magistrates Court were both incompetent and, in light of the long history of this matter, an abuse of process.  There are no prospects of success on any appeal to this Court.  Special leave 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 Justice Heydon and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED