NAIB v MIMA & Anor [2007] HCATrans 354 (1 August 2007)

Last Updated: 21 August 2007

[2007] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S418 of 2006

B e t w e e n -

NAIB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 9.26 AM

Copyright in the High Court of Australia

KIRBY J: The applicant is a national of Bangladesh. He arrived in Australia in August 2000 and promptly made an application for a protection visa. He asserts that he is a "refugee" within the meaning of the Refugees Convention and Protocol and thus entitled to protection under Australian Law.

The applicant's claim for protection was based on alleged persecution by reason of his membership of the BNP political party. He claimed that he had been attacked by members of the Awami League and, on their instigation, had been arrested on false charges.

The applicant's claim was rejected on the facts by a delegate of the Minister. The applicant applied to the Refugee Review Tribunal ("the Tribunal") for review. The Tribunal found that the applicant's evidence was vague, implausible in part, and lacked credibility. It concluded that, whilst he may have been a member of BNP, he was not a prominent activist likely to be a target of the Awami League or its members. On this basis, the delegate's decision was confirmed.

The applicant sought judicial review by the Federal Magistrates Court. The application came before Barnes FM in August 2006. The Minister moved for summary dismissal on the basis that the application was frivolous, vexatious or otherwise an abuse of process. Alternatively, the Minister relied on the doctrine of res judicata or Anshun estoppel.

Barnes FM recorded the earlier history of the applicant's proceedings. This showed that, in January 2003, the applicant had earlier applied to the Federal Court for review of the Tribunal's decision. That application had been transferred to the Federal Magistrates Court where it was dismissed in July 2003 by Raphael FM. The applicant had then filed a notice of appeal to the Federal Court resulting in a decision by Hill J in December 2003, exercising the appellate jurisdiction of that court, adverse to the applicant. In April 2005, this Court (Hayne and Callinan JJ) dismissed the applicant's application for special leave to appeal, holding that there was no reason to doubt the correctness of the reasons and orders of the Federal Court (see NAIB v Minister [2005] HCA Trans 184). Following that decision, the applicant commenced fresh proceedings in the Federal Magistrates Court.

Barnes FM concluded that the applicant's application should be dismissed both on the basis of estoppel and that it constituted an abuse of process. This decision was affirmed by the Federal Court (Black CJ).

On his second application to this Court, the applicant claims that he was denied natural justice in the earlier proceedings. He relies on s 424A(1) of the Migration Act 1958 (Cth) but does not elaborate meaningfully on how this could help his case.

Substantially, as Barnes FM and Black CJ correctly found, this is an impermissible attempt by the applicant to relitigate matters that have already been fully canvassed and determined according with law. No basis has been shown to doubt the correctness of the conclusions to this effect by Barnes FM and Black CJ in the courts below. The application has no prospects of success in this Court. This second application for special leave must therefore be dismissed.

Because the applicant is unrepresented, his application has been dealt with in accordance with Rule 41.10 of the High Court Rules. Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application and I publish the disposition signed by Justice Callinan and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED