SZBQW v MIMIA

[2005] HCATrans 511

[2005] HCATrans 511

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S279 of 2004

B e t w e e n -

SZBQW

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 SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.49 AM

Copyright in the High Court of Australia

McHUGH J:   The applicant is a citizen of Bangladesh.  He arrived in Australia on 25 April 1998 and applied for a protection visa on 9 March 2000.  On 17 March 2000 a delegate for the Minister dismissed his application.  On 9 August 2002, the Refugee Review Tribunal affirmed that decision.  It rejected the applicant’s claims that he was a Bihari.  In relation to the applicant’s claim that he had been falsely accused of murder and was being pursued by the Bangladeshi police, the Tribunal found that his evidence was confused and implausible.  The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The applicant filed an application in the Federal Court for judicial review of that decision on 18 September 2002.  On 13 December 2002, two business days before the matter was set down for hearing, the applicant filed a Notice of Discontinuance.  On 16 October 2003, the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  On 22 March 2004 the Federal Magistrates Court dismissed the applicant’s application for judicial review of the Tribunal’s decision on the basis that it was an abuse of process.  On 2 April 2004 the applicant purported to lodge a Notice of Appeal against that decision in the Federal Court of Australia.  On 18 May 2004 Branson J dismissed the appeal as incompetent.  Her Honour noted that the decision of the Federal Magistrates Court was clearly interlocutory and that the applicant had not sought leave to appeal.  The applicant had been granted leave to seek leave to appeal, but had failed to do so.  In the absence of any substantive decision from the Federal Magistrates Court or the Federal Court, this application is incompetent.  Furthermore, the application is out of time.  Accordingly, the application for special leave to appeal to this Court must be dismissed with costs.

Under the power conferred by r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs.  I publish our joint reasons.

AT 8.50 AM THE MATTER WAS CONCLUDED