NAQB v MIMIA [2005] HCATrans 516 (5 August 2005)

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NAQB v MIMIA [2005] HCATrans 516 (5 August 2005)

Last Updated: 25 August 2005

[2005] HCATrans 516

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S174 of 2004

B e t w e e n -

NAQB

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 SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.52 AM

Copyright in the High Court of Australia

McHUGH J: On 3 March 2000 a delegate of the respondent refused the applicant’s application for a protection visa. On 12 June 2002 the Refugee Review Tribunal affirmed that decision. The applicant claimed to fear persecution on the ground that he had been active in the Bangladesh Nationalist Party, that the Awami League had attacked him and laid false charges against him, and that he would be killed if he returned to Bangladesh. These contentions were not supported by oral evidence from the applicant. The Tribunal found in them inconsistencies, obscurities, fabrications and a lack of credibility. It also noted that the BNP was now the party of government.

The applicant then made an application for judicial review to the Federal Court of Australia which was transferred to the Federal Magistrates Court. The matter was fixed for hearing on 3 December 2002, but the applicant did not appear. A Federal Magistrate re-listed the matter for hearing on 28 January 2003 and ordered the applicant within 28 days to pay the costs thrown away on 3 December 2002 and to provide certain particulars. On 16 January 2003 the Federal Magistrate dismissed the applicant’s application on grounds of default in complying with those orders.

The applicant then purported to appeal to Gyles J, sitting in the Federal Court of Australia. He pointed out that the appeal was incompetent; that leave was needed; that no application for leave was before him; and that the applicant’s failure to attend before both the Tribunal and the Federal Magistrates Court would make a grant of leave unlikely. He also said that the applicant ought to have applied to the Federal Magistrates Court to set aside the default order.

The applicant’s application for special leave to appeal does not demonstrate any error in the reasoning of Gyles J (nor any jurisdictional error by the Tribunal). An appeal would have no prospects of success. The application must be dismissed.

Under the power conferred by r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs. I publish our joint reasons.

AT 8.53 AM THE MATTER WAS CONCLUDED