BZAE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 390

FEDERAL COURT OF AUSTRALIA

BZAE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 390 Federal Court of Australia Act 1976 (Cth), s 43 Federal Court Rules, O 52 r 10, O 62 r 4 Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 cited BZAE OF 2004 AND BZAF OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No QUD 52 of 2005 SPENDER J 5 APRIL 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 52 OF 2005

BETWEEN: BZAE OF 2004 AND BZAF OF 2004

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 5 APRIL 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for an extension of time in which to file and serve an application for leave to appeal is refused. 2. The application for leave to appeal is refused. 3. The applicants pay the costs of the respondent 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 52 OF 2005

BETWEEN: BZAE OF 2004 AND BZAF OF 2004

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 5 APRIL 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 28 February 2005 applicant BZAE, and his wife BZAF, filed an application for leave to appeal from the judgment of Federal Magistrate Jarrett given on 14 February 2005. That document indicates that leave to appeal is required, and the application applies for an order that compliance with O 52 r 5(2) be dispensed with. The affidavit in support says: '… 3. Prior to my departure from Bangladesh. I was living in Bangladesh. I have problem in Bangladesh. 4. I require Leave to Appeal & serve Notice of Appeal against the Federal Magistrates. 5. I filed judicial review application before the Federal Magistrates. Honorable FM did not consider my application & I did not get an opportunity file my written submission. The honourable Magistrates pronounce his dismissal order at the direction date. I am unrepresented. No barrister or solicitor assists me. 6. Considering the circumstance stated above, I am expecting that Federal Court will make favorable decision in relation to my appeal.' 2 The history of the matter is as follows. 3 The applicants arrived in Australia on 17 September 1999, and on 29 October 1999 applied for protection (class XA) visas. On 3 December 1999 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant protection visas to the applicants. The applicants then applied, on 31 December 1999, to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. On 12 August 2002 the Tribunal affirmed the delegate's decision not to grant protection visas to the applicants. 4 On 26 September 2002 the applicants applied to the Federal Court seeking review of the Tribunal's decision, and on 5 February 2003 Hill J dismissed the application. On 24 February 2003 the applicants appealed to the Full Federal Court, and on 13 August 2003 the Full Federal Court (Black CJ, Heerey and Finn JJ) dismissed the appeal. 5 The applicants applied, on 17 December 2003, for special leave to appeal to the High Court of Australia. On 10 September 2004, Gleeson CJ and Heydon J refused to grant special leave to appeal. 6 On 30 September 2004 the applicants filed an application in the Federal Magistrates Court in Sydney seeking review of the Tribunal's decision, and on 8 November 2004 Federal Magistrate Smith dismissed the application. On 2 December 2004 the applicants filed an application in the Federal Magistrates Court in Brisbane seeking review of the Tribunal's decision, and on 14 February 2005 Federal Magistrate Jarrett summarily dismissed the application. On 28 February 2005 the applicants filed an application for leave to appeal in respect of the judgment handed down on 14 February 2005. 7 The judgment dismissing the application is interlocutory, and therefore, leave is required. Pursuant to O 52 r 10(2)(b) the notice seeking leave is to be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought, or within such further time as the Court or the judge may allow. 8 The application for leave was not filed within the seven days from the pronouncement of the interlocutory judgment as required by that sub-rule. It is, therefore, necessary for any appeal to proceed that the applicants apply to the Court for an extension of time to file and serve an application for leave to appeal from the interlocutory judgment, and, if such extension be granted, seek the Court's leave to appeal. 9 In this particular case there has been no explanation as to why the application for leave to appeal was filed out of time but, more importantly, Federal Magistrate Jarrett summarily dismissed the application that was before his Honour because the proceedings were res judicata. The application before his Honour Jarrett, was, in effect, the third attempt by the applicants to seek a review of the same Tribunal decision. 10 His Honour was satisfied that the application raised the same cause of action as the previous proceedings issued by the applicants. Federal Magistrate Jarrett also ordered that no further application by the applicants for review of the decision of the Tribunal dated 12 August 2002 and handed down on 3 September 2002 be accepted, except by the leave of the Court. 11 The notice of appeal does not contain any particulars of how Federal Magistrate Jarrett was in error in dismissing the application on the grounds of res judicata. It is plain from that chronology that the same matter has previously been the subject of a final determination. There is, in the circumstances, no basis which would warrant the favourable exercise of the Court's discretion to grant an extension of time to the applicants to apply for leave to appeal from an interlocutory judgment. 12 Federal Magistrate Jarrett, in my judgment, properly dismissed the application. His judgment is not attended with any doubt and the applicants have no prospects of success in the proposed appeal. The Court therefore refuses to grant the applicants an extension of time to file and serve an application for leave to appeal and refuses to grant to each of them leave to appeal. 13 The applicants should be ordered to pay the respondent's costs of the proceeding on an indemnity basis, in a sum fixed pursuant to O 62 r 4(2)(c) of the Federal Court Rules. The Federal Court has power, pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), to award costs on an indemnity basis in appropriate circumstances and this is clearly one where it is appropriate to make such an order. 14 The 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.' In this particular case, it is appropriate for the Court to exercise its discretion to fix a gross sum of costs to avoid the expense and delay involved in a taxation. 15 The Court has, in previous cases, fixed indemnity costs ordered to be paid by the applicant in migration matters. In this particular case, I order that the applicants pay the costs of the respondent of and incidental to this application on an indemnity basis in the sum which I fix at $3000. In fixing that sum I have had regard to the evidence contained in the affidavit filed today by leave by Mr Johnson Lo and, in particular, to the quantum of professional fees billed, and unbilled work in progress. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .