BZAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 448

FEDERAL COURT OF AUSTRALIA

BZAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 448 Federal Court of Australia Act 1976 (Cth) s 43

Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 cited BZAL OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No QUD 95 of 2005 SPENDER J 14 APRIL 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 95 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAL OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 14 APRIL 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: (1) The application for an extension of time within 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, of and incidental to this application, on an indemnity basis fixed in the sum of $2000. 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 95 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAL OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 14 APRIL 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In this case, there has been a long history of attempts by the applicant to obtain a protection visa. As the chronology which I will shortly relate indicates, the applicant has sought and been universally unsuccessful in achieving an order by any tribunal or court that he is entitled to the protection, as a refugee, of the United Nations Convention relating to the Status of Refugees. 2 The applicant arrived in Australia on 20 February 1996 and on 18 March 1996 applied for a protection visa. On 1 September 1998 a delegate of the respondent refused to grant a protection visa. The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review, and the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant. The applicant applied, on 10 December 1998, to the Federal Court seeking review of the Tribunal's decision. The Federal Court set aside the decision and remitted the matter to the Tribunal for determination according to law. 3 On 3 January 2003 the Tribunal, in reconsidering the matter pursuant to the order of the Federal Court, affirmed the delegate's decision not to grant a protection visa to the applicant. The applicant applied to the Sydney Federal Magistrates Court on 6 February 2003, seeking review of the Tribunal's decision. On 11 June 2003 Federal Magistrate Driver dismissed the application, and on 1 July 2003 the applicant appealed to the Federal Court. The full Federal Court constituted by a single judge (Stone J) dismissed the appeal on 3 November 2003. The applicant then applied on 24 November 2003 for special leave to appeal to the High Court of Australia, and on 19 November 2004 Chief Justice Gleeson and Justice Callinan refused to grant special leave. On 10 December 2004 the applicant filed an application in the Federal Magistrates Court in Brisbane seeking a further review of the Tribunal's decision. Federal Magistrate Rimmer summarily dismissed the application on 8 March 2005, and on 8 April 2005 the applicant filed an application for leave to appeal to the Federal Court. It is that application with which I am presently concerned. 4 In the course of his oral submissions to this Court, it is plain that the applicant wishes again to challenge the correctness of the decision of the Tribunal. That is a matter which is res judicata. It has been decided, adversely to the applicant, and his avenues of challenge to that decision have been exhausted. It is in the public interest that there must be an end to litigation, and that point has already well and truly been reached. 5 This is a case where it is beyond argument that the applicant has already exhausted his avenues of challenge to the decision that he is not entitled to refugee status. It is an abuse of process to attempt to re-litigate the matter by his application to the Federal Magistrates Court in Brisbane. 6 In my judgment, Federal Magistrate Rimmer properly dismissed the application. There is no doubt about the correctness of that judgment, and any proposed appeal by the applicant has no prospects of success. In those circumstances the Court refuses to grant to the applicant an extension of time to file and serve an application for leave to appeal, and refuses to grant to the applicant any leave to appeal. 7 There is power, pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs on an indemnity basis in appropriate circumstances. In Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260, a Full Court constituted by 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.' 8 In this particular case, it is appropriate that the Court, in its discretion, fix a gross sum of costs on an indemnity basis to avoid the expense and delay involved in a taxation. I have had regard to the affidavit of Mr Lo filed by leave today in respect of the quantum of any such order. 9 For all of the reasons to which I have referred, the Court makes the following orders: (1) the application for an extension of time within which to file and serve an application for leave to appeal is refused; (2) the applicant's application for leave to appeal is refused; and (3) the applicant pay the costs of the respondent, of and incidental to this application, to be paid on an indemnity basis fixed in the sum of $2000. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender