BZAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 449

FEDERAL COURT OF AUSTRALIA

BZAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 449 Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules O 62 r 4(2)(c), O 52 r 10 Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 cited BZAS OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No QUD 94 of 2005 SPENDER J 14 APRIL 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 94 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAS 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, fixed in the sum of $2500. 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 94 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAS 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 matter I have listened carefully to the submissions that have been made by the applicant, who is in the documents referred to as BZAS of 2004. It is apparent from those discussions that the applicant seeks again to challenge the decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refusing to grant to him a Protection Visa. 2 In the essence, this present application is a further attempt to reopen matters which have been litigated to finality through the Minister, the Tribunal, the Federal Court, the Full Court of the Federal Court and the High Court. 3 This is the history of the matter. The applicant in these proceedings arrived in Australia on 28 May 1999. He applied for a Protection (Class XA) visa on 8 July 1999. On 16 September 1999, a delegate of the Minister refused the grant of a protection visa to him. He then applied for review to the Tribunal, which dismissed his application on 9 October 2002. 4 He then appealed to the Federal Court in the Sydney Registry of the Court on 27 November 2002. The appeal was dismissed by Branson J on 25 February 2003. The applicant appealed to a Full Court of the Federal Court constituted by Black CJ, Heerey and Finn JJ, who dismissed the appeal on 12 August 2003. He then applied for special leave to appeal to the High Court of Australia on 5 September 2003. Kirby and Hayden JJ, on 10 September 2004, dismissed that application for special leave. 5 On 16 September 2004, he filed an application for an order nisi, which draft order was discharged by Callinan J on 29 November 2004. The applicant then filed an application in the Federal Magistrates Court in Brisbane on 10 December 2004 seeking a further review of the decision of the Tribunal in his case. 6 That application came on for hearing before Federal Magistrate Jarrett on 22 March 2005. His Honour dismissed the application and ordered the applicant to pay the respondent's costs, for reasons which his Honour gave on that day. The applicant then filed an application in the Federal Court on 7 April 2005, in which he applies for leave to appeal from the decision of Federal Magistrate Jarrett, and leave to file a notice of appeal. 7 In this case, the application for leave to appeal from an interlocutory judgment has not been filed and served in accordance with O 52 r 10 of the Federal Court Rules. Before any appeal may proceed, he has to apply for an extension of time within which to file and serve an application for leave to appeal from the interlocutory judgment of Federal Magistrate Jarrett, and if such extension is granted, seek the leave of the Court to file an appeal. 8 In this particular case, the central consideration is the prospects of any proposed appeal. Federal Magistrate Jarrett summarily dismissed the application of the applicant, applying the doctrine of res judicata. In my judgment, Federal Magistrate Jarrett properly dismissed the application. There was no other option open to him. His judgment is not attended with any doubt. There are no special reasons or any other discretionary matters warranting the favourable exercise of the Court's discretion to grant an extension of time to file the application for leave to appeal from his Honour's interlocutory judgment. 9 The applicant's proposed appeal has no prospects of success. I therefore refuse to grant the applicant an extension of time to file and serve an application for leave to appeal the interlocutory judgment of Federal Magistrate Jarrett, and I refuse to grant the applicant leave to appeal from that judgment. 10 The respondent Minister submitted that the Court should order that the applicant pay the respondent's costs on an indemnity basis in a sum fixed pursuant to O 62 r 4(2)(c) of the Federal Court Rules. The Court does have power, pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), to award costs on an indemnity basis in appropriate circumstances. This is a case where it is appropriate to make such an order. 11 As the Full Court constituted by Lee, Carr and Sackville JJ said in Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260, an order for indemnity costs in favour of the Minister might be made where he has been put to '... the expense of unnecessary litigation' and hence 'should be recompensed in full.' 12 It is clear that this is a case where it is appropriate to order recompense in full for the cost of defending a groundless application. It is better, in my judgment, that a gross sum pursuant to O 62 r 4(2)(c) of the Rules be fixed, because that would avoid the expense and delay involved in a taxation. 13 Having regard to the material in an affidavit of Mr Makridakis filed by leave today, I order that the applicant pay the costs of the respondent of and incidental to this application, fixed in the sum of $2500. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender