GROUNDS OF APPEAL
8 The grounds identified in the notice of appeal filed on 30 July 2002 are that the Federal Magistrate erred in failing to find that the decision of the Tribunal involved an error of law which involved an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the Tribunal. Section 476(1)(c) of the Act is cited as the basis of this ground of review. No particulars of the alleged error have been provided.
9 Because the Tribunal's decision was made on 25 October 2001, after the amendments to the Act referred to earlier (see [7] above), the purported ground of review is no longer available to the appellant, as the section relied upon has been repealed. As a consequence of those amendments the Tribunal's decision is a privative clause decision to which s 474 of the Act applies and therefore the jurisdiction of the Federal Magistrates Court and of this Court is strictly limited. It is extraordinary that so long after the commencement of these amendments (2 October 2001), a member of the legal profession should be responsible for preparing and filing such a notice of appeal on behalf of his client. It is especially reprehensible when the deficiencies of the notice of appeal were pointed out to the appellant's solicitor at a directions hearing on 16 August 2002 at which time the appellant was given leave to file and serve an amended notice of appeal. Moreover, despite Raphael FM explicitly stating that the Tribunal's decision.
"is one to which the provisions of the new s 474 of the Migration Act apply by virtue of the transitional provisions of the Migration Act contained in Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001",
the submissions filed by the appellant's solicitor claim that the learned magistrate was in error in not finding that the Tribunal erred under the repealed provisions of the Act.
10 Since the amendments of October 2001, there have been numerous decisions of this Court, both at first instance and on appeal, in which the amendments have been considered. A most cursory survey of recent decisions concerning the Act would reveal this to be the case. A superficial review of even some of those decisions would alert any reasonably competent practitioner to the unavailability of the ground stated in this notice of appeal.
11 Apart from the misconceived ground of appeal set out in the notice, the appellant's submissions allege that the Tribunal made a jurisdictional error "when he disregarded a matter of importance, which it was required to take into account in deciding the case." They also allege a denial of procedural fairness and seek to cavil with findings of fact made by the Tribunal. None of these claims amount to a claim of reviewable error within the present jurisdiction of this Court or the Federal Magistrates Court; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 and NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294.
12 Clearly the appeal should be dismissed and the Respondent should have his costs. However, I see no reason why the appellant should be personally liable to pay costs occasioned by an appeal that was doomed to failure. The appellant has been poorly served by his legal adviser. I have given the appellant's legal adviser an opportunity today to make submissions on this point, he did not however address the issue, other than to aver that the appellant had grounds for appeal. The justice of the case requires that the solicitor be personally liable for the Respondent's costs.
13 For these reasons the appeal must be dismissed and the appellant's solicitor pay the respondent's costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.