Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis

REASONS FOR JUDGMENT 1 For the reasons that follow, on 29 October 2010, I granted the applicant leave to amend its notice of appeal dated 18 November 2010, gave directions, adjourned the hearing and ordered the applicant to pay the respondent's costs of the adjournment. 2 At the hearing, the applicant's counsel made clear that its principal contention on appeal was that the Federal Magistrate erred in purporting to exercise a discretion to rely on an event which began or occurred prior to the portability period for which the extension under s 1218C(1) of the Social Security Act 1991 (Cth) ("the Act") was sought. 3 The applicant submitted that in no circumstances, where the portability period for which the extension was sought began on 28 December 2008 and terminated on about 29 March 2009, was it open to the Federal Magistrate to consider a serious illness which began or occurred prior to the commencement of the portability period, even if it constituted an "event" within terms of s 1218C(1) of the Act. 4 The grounds of appeal were: 1. That the Tribunal misinterpreted s.1218C of the Act by holding that there was a discretion to rely on an event, as defined in subsection (1), which occurred before the portability period referred to in subsection (2), in order to extend the portability period. 2. That the Tribunal erred in accepting that the deterioration of the Respondent's mother's condition constituted an "event" under section 1218C of the Act that could be used to extend the Respondent's portability period beginning 28 December 2008. 5 Ground 1 gave no specific guidance as to the arguments the respondent would be required to meet. 6 Ground 2, although precise, on a fair reading raised a different point from reliance on an event which preceded the portability period sought to be extended. 7 The applicant's written submissions appeared to address ground 2. Allusions in the written submissions to the primary argument the applicant sought to pursue under the umbrella of ground 1 were oblique and could be discerned only with the benefit of hindsight. Taken in the context of the lengthy submissions as a whole, the relevant paragraphs could not be said fairly to alert either the Court or the respondent to the nature of the error the applicant alleged. 8 The relative generality of ground 1 of the notice of appeal, particularly in the context of the written submissions, thus indicated that the alleged misinterpretation of s 1218C of the Act was construing a serious illness in s 1218C to include an existing illness which only became serious during the period of absence from Australia referred to in s 1218(2). 9 In SZMIP v Minister for Immigration [2009] FCA 217, Flick J at [10] -[12] discussed the necessity to stipulate grounds of appeal as follows (at [10]-[12]): Even if that difficulty be left to one side, the problem confronting the Appellants is only compounded by the fact that (as framed) the first two purported Grounds of Appeal do not comply with O 52 r 13(2)(b) of the Federal Court Rules, namely the requirement to state "briefly, but specifically, the grounds relied upon in support of the appeal". A statement that a Tribunal has "declined to exercise its jurisdiction" or has committed "jurisdictional error" does not satisfy that requirement. In attempting to provide a "useful practical guide", it has been said that a "notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions" will "almost certainly" fail to comply with the requirements of O 52 r 13(2)(b): Commonwealth v Evans [2004] FCA 654 at [35] ; 81 ALD 402 at 411 per Branson J. The statements set forth by the present First Appellant do not "provide a sensible framework" within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the "jurisdictional error" said to have been committed. The content of the present Notice of Appeal is no better than a statement that "the Honorable [sic] Judge failed to follow necessary laws applicable to me", a statement which likewise was held not to comply with O 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants - and many other appellants before this court - is no better than the "standard form notice of appeal" employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5]; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5]; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6]. Neither of these two difficulties - namely the failure to identify any error committed by the Federal Magistrate nor the failure to identify with acceptable precision the "ground of appeal" - is considered to be a mere matter of form: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15]. Both are considered essential to this Court only exercising such jurisdiction as has been committed to it by the federal legislature. 10 I took the view that the notice of appeal did not comply with O 52 r 13(b)(2) and the deficiencies were not addressed by any less formal mechanism, such as the outline of submissions. 11 Accordingly, on the applicant's application, I gave the applicant leave to file and serve an amended notice of appeal to the effect of the foreshadowed amendment handed up by counsel, adjourned the further hearing of the appeal and ordered that the applicant pay the respondent's costs of the adjournment. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.