FEDERAL COURT OF AUSTRALIA

BZAM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 393

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules, O 62 r 4(2)(c)

Federal Magistrates Court Rules 2001, Rule 10.01(2)(b), 16.05(2)(a)

WAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 399 cited

BZAM OF 2004, BZAN OF 2004, BZAO OF 2004 AND BZAP OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No QUD 54 of 2005

SPENDER J

5 APRIL 2005

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 applicants 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.

REASONS FOR JUDGMENT

1                     This is an “application for leave to appeal” and “for an extension of time to file and serve notice of appeal”, which document was filed on 1 March 2005.  By that document, the applicant applies for leave to appeal from the judgment of Federal Magistrate Jarrett given on 31 January 2005.  The document recognises that leave to appeal is required and also says that the applicants apply for an order of extension of time to file and serve notice of appeal.

2                     In relation to the affidavit in support of the application, the male husband applicant, BZAM, says:

‘…5.    I filed judicial review application before the Federal Magistrates.  Honourable FM did not consider my application & I did not get an opportunity to file my written submission.  The honourable Magistrate pronounce his dismissal order at the direction date.  I am unrepresented.  No barrister or solicitor assists me. 

6.    Actually at the direction hearing date I was seriously sick & admitted to the hospital. 

7.    Considering the circumstance stated above, I am expecting that Federal Court will make favorable decision in relation to my appeal.’

3                     These proceedings are in respect of four applicants: BZAM, BZAN, BZAO and BZAP, each of 2004.  The chronology of the matter is as set out below.

4                     The applicants arrived in Australia on 6 February 2000, and on 25 February 2000 applied for protection visas.  On 20 March 2000, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused to grant protection visas to the applicants.  The applicants applied on 12 April 2000 to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.  On 13 August 2002 the Tribunal affirmed the delegate’s decision not to grant protection visas to the applicants.

5                     On 26 September 2002 the applicants applied to the Federal Court seeking review of the Tribunal’s decision, which application was transferred from the Federal Court to the Federal Magistrates Court.  On 19 February 2003 Federal Magistrate Raphael dismissed the application.  The applicants then appealed, on 10 March 2003, to the Federal Court.  On 5 June 2003 Emmett J dismissed the appeal.

6                     The applicants applied on 9 July 2003 for special leave to appeal to the High Court of Australia.  On 9 January 2004 a Certificate of Deemed Abandonment issued in respect of the special leave application.  The applicants filed a second application for special leave to appeal to the High Court of Australia on 12 February 2004, but on 26 November 2004 discontinued their second special leave application.

7                     On 10 December 2004 the applicants filed an application in the Federal Magistrates Court in Brisbane seeking a further review of the Tribunal’s decision, and on 31 January 2005 Federal Magistrate Jarrett dismissed the application.  On 1 March 2005 the applicants filed an application for leave to appeal and for an extension of time to file and serve the notice of appeal.

8                     In this particular case, as the reasons for judgment delivered ex tempore by Federal Magistrate Jarrett indicate, his Honour gave judgment relying on Rule 10.01(2)(b) of the Federal Magistrates Court Rules 2001 which permits the Federal Magistrates Court to dismiss proceedings for non-appearance.  The circumstance leading to those orders appears from material which the male applicant faxed to the District Registrar.  That material, which is quite extensive, indicates that on the morning of 31 January 2005 the male applicant husband presented to the emergency department of Canterbury Hospital at 5.43 am.

9                     Subsequent to that date, he has been admitted for further hospital stays including an operation.  The medical reports forwarded to the Registrar indicate that there has been serious abdominal pain involving the gall bladder and some bowel loops.  A report from Canterbury Hospital indicates an admission date of 2 February 2005 and discharge date of 9 February 2005, with a notation of a “follow-up with Dr Loi in three weeks” and admission for a “lap-chole” in six weeks.

10                  The male applicant husband indicated that he has difficulty accessing Medicare in respect of his medical condition, and his painful medical condition is persisting.  It is plain that if the reason for non-appearance by the male applicant husband at the hearing on 31 January 2005 had been brought to the attention of the Federal Magistrates Court, either before the judgment was pronounced or subsequent to the judgment being pronounced, there would have been power in the Federal Magistrates Court not to make the orders that it did, or to set aside the orders that it did in fact make.

11                  Rule 16.05(2)(a) of the Federal Magistrates Court Rules provides that orders made in the absence of a party can be set aside by the Court on an application made by any party.  No such application has been made.  I am quite sure, however, that had such an application been made, the orders would have been set aside and the magistrate would then have inquired into the merits of the application for leave to appeal and an extension of time to serve a notice of appeal.

12                  In those circumstances, it is necessary to consider whether there is any utility in granting an extension of time within which to seek leave to appeal from the orders made by Federal Magistrate Jarrett.  There is nothing to indicate any error in the orders that were actually made, namely the dismissal of the proceedings.  In my judgment, had the history of the matter been brought to the attention of Federal Magistrate Jarrett there would have been no option but to dismiss the application for leave to appeal.

13                  The fact of the matter is that there was a dismissal of the application to review the decision of the Tribunal.  There was an unsuccessful appeal to Emmett J from the decision of the Tribunal.  An application for special leave was deemed to be abandoned.  There was a second application for special leave which was discontinued, so that in the circumstances, the application that was made on 10 December 2004 seeking a further review of the Tribunal’s decision in respect of each of the applicants, was doomed to be dismissed.

14                  As the Full Court (Lee, RD Nicholson and Finklestein JJ) in WAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 399 noted:

‘An extension of time within which to file an appeal will not be granted without a consideration of the … appellant’s prospects of successfully prosecuting his appeal…’

15                  In my opinion, nothing in the application for leave to appeal, the supporting affidavit, or the material concerning the male applicant husband’s medical condition raises any grounds for forming a basis for relief.  In all the circumstances 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 the interlocutory judgment of Federal Magistrate Jarrett.  That application was, in the circumstances, properly dismissed.  The actual order is not attended with any doubt, and the proposed appeal by each applicant has no prospects of success. 

16                  In those circumstances, the Court declines to grant the applicants an extension of time to file and serve an application for leave to appeal and refuses to grant to each of them leave to appeal.

17                  The applicants should be ordered to pay the respondent’s costs of the proceeding, in this case on an indemnity basis and in an amount fixed pursuant to O 62 r 4(2)(c) of the Federal Court Rules.  The Court has power pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs on an indemnity basis in appropriate circumstances.

18                  Here the Minister has been put to the expense of unnecessary litigation and, hence, should be recompensed in full.  It is appropriate in the circumstances of this case for the Court to exercise its discretion to fix a gross sum of costs to avoid the expense and delay involved in the taxation.  I have had regard to the evidence concerning costs in an affidavit filed by leave today by Mr Johnson Lo. 

19                  In the circumstances, I will order that the applicants pay the respondent’s costs of and incidental to this application on an indemnity basis, which I fix in the sum of $3000. 

Associate:

Dated:              5 April 2005