FEDERAL COURT OF AUSTRALIA BZAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 391 Federal Court of Australia Act 1976 (Cth) s 24(1A), s 43 Federal Court Rules O 52 r 10, O 62 r 4 Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 cited BZAD OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No QUD 51 of 2005 SPENDER J 5 APRIL 2005 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 51 OF 2005 BETWEEN: BZAD OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION, 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 applicant 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 51 OF 2005 BETWEEN: BZAD OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SPENDER J DATE: 5 APRIL 2005 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 28 February 2005, the applicant, BZAD, filed a document headed "Notice of Appeal" seeking to appeal the judgment of Federal Magistrate Jarrett given on 14 February 2005. The document styled "Notice of Appeal" says that that judgment was given at Sydney, but in fact the judgment was delivered at Brisbane. 2 The applicant arrived in Australia on 12 July 2000 and on 11 August 200 applied for a protection (Class XA) visa. On 29 September 2000 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a protection visa to the applicant. The applicant then lodged an application on 26 October 2000 to the Refugee Review Tribunal ("the Tribunal") seeking a review of the delegate's decision. On 14 November 2002 the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant. 3 On 6 January 2003 the applicant applied to the Federal Court seeking review of the Tribunal's decision, and on 26 May 2003, Jacobson J dismissed that application. On 13 June 2003 the applicant appealed to the Full Federal Court, and on 4 November 2003 a Full Federal Court (Spender, Hely and Bennett JJ) dismissed the appeal. 4 The applicant applied, on 19 November 2003, for special leave to appeal to the High Court of Australia. On 10 September 2004 Justices Kirby and Heydon refused to grant special leave. 5 On 27 September 2004 the applicant filed an application for review in the Federal Magistrates Court in Sydney. On 8 November 2004 the applicant discontinued that application, and on 2 December 2004 filed an application in the Federal Magistrates Court in Brisbane seeking a further review of the Tribunal's decision. Federal Magistrate Jarrett, on 14 February 2005, summarily dismissed the further application. 6 Judgment was pronounced on 14 February 2005 and the document styled "Notice of Appeal" was not filed until 28 February 2005. 7 The judgment dismissing the application is an interlocutory judgment, and leave is therefore required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act"). Further, O 52 r 10(2)(b) provides that a notice seeking that leave shall be filed and served within 7 days from pronouncement of the interlocutory judgment from which leave to appeal is sought, or in such further time as a Court or a judge may allow. 8 In this particular case, then, before any appeal may proceed, the applicant must apply to the Court for an extension of time to file and serve an application for leave to appeal from an interlocutory judgment, and, if such extension is granted, seek the Court's leave to appeal. It is necessary to have regard to the prospects of success of the proposed appeal which is an important consideration, if not the most important consideration, relevant to the Court's exercise of its discretion. 9 In this case, there has been no explanation offered as to why the application for leave to appeal was filed out of time. The judgment of Federal Magistrate Jarrett, in summarily dismissing the application, was on the basis that in his Honour's judgment the proceeding was res judicata. His Honour noted that the application that was before him was, in effect, the third attempt by the applicant to seek a review of the same Tribunal decision, and his Honour was satisfied that the application raised the same cause of action as the previous proceedings issued by the applicant. 10 His Honour, in addition to dismissing the application, ordered that no further application by the applicant be accepted for filing for review of the decision of the Refugee Review Tribunal dated 14 November 2002 and handed down on 10 December 2002, except by leave of the Court. The notice of appeal does not contain any particulars of how Federal Magistrate Jarrett erred in dismissing the application. 11 The applicant was present at the hearing before Federal Magistrate Jarrett and had the opportunity to make submissions as to why he should be allowed to proceed with the application. The respondent Minister has suffered prejudice by having to expend resources and legal costs to defend the numerous proceedings initiated by the applicant since January 2003 which I have detailed above. 12 In the circumstances of this case there is no basis which would warrant the favourable exercise of the Court's discretion to grant an extension of time to the applicant to apply for leave to appeal from the interlocutory judgment of Federal Magistrate Jarrett. In my judgment, his Honour's judgment is not attended with any doubt and the applicant's prospects of a successful appeal are nil. 13 The orders that the Court makes are that the Court refuses to grant the applicant an extension of time to file and serve an application for leave to appeal and refuses to grant to the applicant leave to appeal. In this case the applicant 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. 14 The Court has the power, pursuant to s 43 of the Act, to award costs on an indemnity basis in appropriate circumstances. In my opinion, this is such a case. 15 In Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260, the Full Court (Lee, Carr and Sackville JJ) 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.' 16 In the circumstances of this 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. The Court has, on other occasions, ordered an applicant to pay indemnity costs on a fixed basis in migration matters. 17 In this particular case I order that the applicant pay the costs of and incidental to this application of the respondent on an indemnity basis, which I fix in the sum of $3000. 18 In assessing that sum I have had regard to the contents of the affidavit of Mr Johnson Lo, filed by leave today, in particular to the amounts in respect of billed and unbilled work associated with this application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 5 April 2005 Solicitor for the Applicant: The applicant appeared on his own behalf Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 April 2005 Date of Judgment: 5 April 2005