Kumar v Secretary, Department of Social Services

1. Leave to appeal be refused.
2. The applicant pay the respondent's costs of and incidental to the application for leave to appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Upon the making of the order dismissing as incompetent his purported appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the order made by the Administrative Appeals Tribunal (Tribunal) on 30 November 2018, Kumar v Secretary, Department of Social Services [2019] FCA 202, the applicant, Mr Nitesh Kumar made oral application for leave to appeal against that order of dismissal. The Secretary of the Department of Social Services (Secretary) did not object to his taking this course but was content to deal with the application so made on its merits. 2 In seeking leave to appeal, as opposed to asserting an ability to appeal as a right, Mr Kumar, in my respectful view, adopted a correct understanding of the nature of the order of dismissal and of the consequential requirement found in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for leave to appeal. In Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1587 at [5], Jagot J held that leave to appeal an order of the character of an order which had upheld an objection to competency and consequently dismissed an appeal was necessary. Her Honour recognised, as I do, that such a view was consistent with an analysis of authorities by Lindgren J in SZGAP v Minister for Immigration and Multicultural Indigenous Affairs (2005) 227 ALR 683, a case to which I was helpfully referred by Mr Black. The effect of that case is that an order which dismisses, summarily, an appeal without any final adjudication on the merits is interlocutory rather than final in character, hence, a need for a grant of leave. 3 The question, therefore, is whether to grant such leave? Mr Kumar is not obliged to prove to demonstration that any proposed ground of appeal must succeed. It is enough that he demonstrates that at least one ground is arguable. Mr Kumar does wish to agitate substantive points concerning the true construction and, indeed, validity of particular provisions in social security legislation. These are identified in the proposed notice of constitutional matter which became an exhibit in the objection to competency hearing. It is not necessary, though, to detail those. That is because, in order to grant leave, my view is that Mr Kumar would have to demonstrate that it is at least arguable that the Full Court's judgment in Director-General of Social Services v Chaney (1980) 47 FLR 80 with respect to that class of decision which may be the subject of appeal under s 44 of the AAT Act was wrong. That judgment has stood for well-nigh 40 years and been later applied both in the appellate and original jurisdictions of this Court on many occasions. It recognises that the means of challenge prescribed in s 44 of the AAT Act is to the ultimate decision on review of the Tribunal. Earlier administrative decisions along the way to such a decision are not, for reasons which I gave in dismissing as incompetent the proceeding, immune from challenge, but that means of challenge is by way of judicial review. 4 In my view, that there exist certain asserted constitutional issues which do not go to the validity of s 44 of the AAT Act or, at least, to its confinement to final decisions is not a distinguishing feature which in any way confers any prospect of success on the proposed appeal. The proposed appeal, in my view, is utterly devoid of any prospect of success. It is just one of those cases where the selected means of challenge is incontestably inapt, having regard to the interlocutory character of the order made by the Tribunal on 30 November 2018 staying until hearing or further order the implementation of the decision under review. 5 For these reasons, leave to appeal is refused. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.