BZAG v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, BZAG, arrived in Australia on 31 October 1995 and he applied on 23 December 1997 for a protection visa. On 28 March 1998 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a protection visa to him. On 27 April 1998 he sought review of the delegate's decision by the Refugee Review Tribunal ("the Tribunal"). 2 Applicant BZAH arrived in Australia on 2 June 1998 and she applied on 2 September 1998 for a protection visa, which was refused by a delegate of the Minister on 23 February 1999. She applied on 15 January 2000 to the Tribunal for a review of the decision of the delegate. 3 On 17 October 2000 the applicant, BZAI, the daughter of the male and female applicants just referred to, was born, and on 22 January 2001 the male applicant applied for a protection visa on behalf of his daughter which was refused by a delegate of the Minister on 28 February 2001. An application to review that decision was made to the Tribunal on behalf of the daughter on 19 March 2001. 4 On 14 January 2002 the Tribunal affirmed the delegates' decisions not to grant protection visas to the three applicants. On 4 March 2002 the applicants applied to the Federal Court seeking review of the Tribunal's decision, and on 24 June 2002 Gyles J dismissed the application. The applicants appealed to the Federal Court by notice of appeal on 12 July 2002, and the Full Federal Court, Sackville, Allsop and Jacobson JJ, dismissed the appeal on 11 October 2002. 5 On 1 May 2003 the applicants applied to the Federal Magistrates Court in Sydney seeking a second review of the Tribunal's decision. On 19 August 2003 Federal Magistrate Driver granted leave to the applicants to discontinue the application and ordered that no further application by the applicants be accepted for filing for review of the Tribunal's decision except by leave of the Federal Magistrates Court. 6 On 17 September 2003 the applicants applied to the High Court of Australia seeking constitutional writs in respect of the decision of the Tribunal. That application was remitted by the High Court, Gummow J, to the Federal Court on 25 November 2003. On 9 February 2004 Emmett J dismissed the application which had been remitted by the High Court, and ordered that no further application by the applicants be accepted for filing for review of the Tribunal's decision except by leave of the Federal Court. 7 On 26 March 2004 the applicants applied for special leave to appeal to the High Court of Australia from the decision of the Full Federal Court of 11 October 2002. On 22 November 2004, a certificate of abandonment was issued in respect of the special leave application. 8 On 3 December 2004, the applicants filed an application in the Federal Magistrates Court in Brisbane seeking a third review of the decision of the Tribunal. On 1 March 2005, Federal Magistrate Baumann summarily dismissed that application and ordered that the applicants pay the respondent's costs on an indemnity basis fixed in the sum of $3000 within 30 days. The applicants filed a document styled "Notice of Appeal" on 15 February 2005. 9 The decision of Federal Magistrate Baumann summarily dismissing the application was an interlocutory judgment and therefore requires leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act"). O 52 r 10 of the Federal Court Rules relevantly provides that an application for leave in the circumstances referred to in O 52 r 10(2)(b) must be made within seven days or within such further time as the Court or a judge may allow. 10 On an application for an extension of time, the prospects of success of the proposed appeal is an important, if not the most important, consideration relevant to the Court's exercise of its discretion. The prospects of the proposed appeal are also relevant when determining whether to grant an applicant leave to appeal. On such an application, the applicant applying for leave to appeal has to demonstrate that the decision to be appealed from is attended with sufficient doubt, and that if the decision is wrong, it will work substantial injustice against the applicant. In this particular case, the applicants have not offered an explanation as to why the application for leave to appeal was filed out of time. 11 More importantly a Judge of the Federal Court, and a Federal Magistrate, had previously ordered that no further application by the applicants be accepted for filing for review of the decision of the Tribunal dated 14 January 2002 and handed down on 7 February 2002, except by leave of the Court. The decision of Federal Magistrate Baumann to summarily dismiss the application was because the proceeding was filed in breach of those orders. The male applicant husband was present at the hearing before Federal Magistrate Baumann and had the opportunity to make submissions as to why he should be allowed to proceed with the application. 12 The notice of appeal does not contain any particulars of how Federal Magistrate Baumann is said to have erred in dismissing the application. 13 The proceedings that Federal Magistrate Baumann dismissed were instituted in defiance of the orders that had been made by Emmett J and by Federal Magistrate Driver; and in my judgment constitute a significant and obvious abuse of the process of the court. The respondent Minister has suffered prejudice by having to expend resources and legal costs to defend the numerous proceedings which I have outlined above initiated by the applicants since March 2002. 14 In my judgment there is 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, or to grant leave to appeal from that judgment. Further, Federal Magistrate Baumann properly dismissed the application that was instituted in breach of the orders made by Emmett J and Federal Magistrate Driver. In my opinion, the orders of Federal Magistrate Baumann are not attended with any doubt. 15 The applicants' proposed appeal has no prospects of success. The Court therefore refuses to grant to the applicants an extension of time to file and serve an application for leave to appeal, and refuses to grant them leave to appeal. In the circumstances, the applicant should be ordered to pay the respondent's costs of and incidental to the proceeding. 16 The Court has power pursuant to s 43 of the Act to award costs on an indemnity basis in appropriate circumstances. This is clearly such a case. A Full Court constituted by Lee, Carr and Sackville JJ in Gersten v Minister for Immigration & 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'. There is power for the Court to order that costs be ordered as a gross sum pursuant to O 62 r 4(2)(c) of the Rules. In the circumstances, 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. 17 The Court has on other occasions, ordered an applicant to pay indemnity costs in a fixed sum in migration matters including SZAKU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 892 where the Court fixed indemnity costs at $3000, and SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 where the Court fixed indemnity costs at $2000. 18 Having regard to the affidavit of Mr Johnson Lo filed as to costs that have been billed, or are to be billed in respect of this matter, I order that the applicants pay the costs of the respondent on an indemnity basis which I fix in the sum of $3000. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .