SZDDH v MIMIA

[2005] HCATrans 631

[2005] HCATrans 631

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S484 of 2004

B e t w e e n -

SZDDH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2005, AT 9.35 AM

Copyright in the High Court of Australia

McHUGH J:   The applicant is a citizen of Bangladesh.  He claims to fear persecution as a result of his membership of the BNP party.  He arrived in Australia on 18 November 1998 and lodged an application for a protection visa on 3 December 1998.  On 17 August 2000 he joined the Muin and Lie class action:  Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601. Accordingly, his bridging visa was extended until 29 May 2003, when he filed a draft order nisi in this Court.  That matter was remitted to the Federal Court, which dismissed the application for the order nisi on 3 February 2004.  On 26 March 2004, the applicant filed an application for review of that decision in the Federal Magistrates Court.  On 10 September 2004, Raphael FM dismissed that application.  The applicant then purported to bring an appeal against the learned Magistrate’s decision in the Federal Court.  On 22 November 2004, Tamberlin J rejected that appeal as incompetent.  The applicant now seeks special leave to appeal against the decision of Tamberlin J.

The decision of Tamberlin J was clearly correct.  The question before his Honour was not whether the Tribunal’s decision was correct, but rather a procedural question.  The applicant’s present application is misconceived because it would not entail any assessment of the substantive issues in his application for a protection visa.  Moreover, this is another case where the applicant’s written submissions are in a generic form which is becoming familiar to this and other Courts.  Those submissions provide little or no assistance in determining whether the substantive claims have any merit.  The reasons of the Tribunal do not disclose any error of law which would give rise to a grant of special leave to appeal. 

We have already made clear our view that, where it can be ascertained that persons have received payment for the preparation of these pro forma documents, we see no reason why the Federal Court should not give consideration to calling upon those persons to show cause why they should not be liable to pay the costs of the proceedings in the Federal Court:  NALJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 261 (27 April 2005).

We further note that a distinctive pattern has emerged whereby applicants inform the Tribunal, through their migration agent, that they will not appear at the Tribunal hearing.  This usually occurs the day before the scheduled hearing.  They then seek to have the Tribunal’s determination declared void by applying for an order nisi.  The costs incurred as a result of these futile proceedings are substantial.  It should be made clear to future applicants that they will not succeed in their applications by taking this route, and that the Courts will not refrain from awarding costs against them where appropriate. 

The application for special leave to appeal is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 9.35 AM THE MATTER WAS CONCLUDED