SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 | Case summary

REASONS FOR JUDGMENT French J: Introduction 1 In these two proceedings which were heard together, different parties brought an application for leave to appeal and an appeal respectively from judgments of the Federal Magistrates Court dismissing their applications for judicial review of decisions of the Refugee Review Tribunal (the Tribunal). Each application for judicial review was dismissed as outside the non-extendable time limit imposed by s 477 of the Migration Act 1958 (Cth) (the Act). Such a decision is interlocutory in character and an appeal against it cannot be brought without the leave of the Court. The appeal which was brought by SZAGB and SZABI must therefore be dismissed as incompetent. However, even had leave to appeal been sought in that case, it would be refused. In my opinion leave to appeal should also be refused in SZAJB. 2 In each case an argument was mounted that s 477 of the Act was invalid and, alternatively, ought to be read down so as not to impose an unextendable time limit upon the commencement of proceedings in the Federal Magistrates Court. The argument, although carefully presented, had little prospect of success. But even if successful it would have been of no benefit in these proceedings. For in each case the proceeding in the Federal Magistrates Court was a second round judicial review application seeking, in effect, to challenge afresh the original decision which had already been the subject of an unsuccessful judicial review proceeding and unsuccessful appellate proceedings. The Court will not entertain such misuse of its procedures. In the case of the application for leave to appeal, the application will be dismissed with costs. In the case of the appeal, the appeal will be dismissed as incompetent with costs. SZAJB - procedural background 3 SZAJB is a citizen of Pakistan. He came to Australia on a visitors visa in February 2001. On 20 March 2001 he applied for a protection visa. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs declined his application and he was notified of that decision on 26 April 2001. On or about 29 May 2001 he made an application, through a migration agent, to the Tribunal for a review of that decision. On 28 February 2003 the Tribunal affirmed the decision not to grant him a protection visa. SZAJB then applied for judicial review of the Tribunal's decision. His application was heard by Raphael FM on 20 February 2004 and on the same day was dismissed with costs. 4 SZAJB appealed to the Federal Court against the decision of the Federal Magistrates Court. The appeal was heard by Branson J on 8 June 2004 and was dismissed on that day with costs. Subsequently, SZAJB applied in the original jurisdiction of the High Court for orders nisi for writs of mandamus, certiorari and prohibition against the Minister and the Tribunal. The application was dismissed on 23 August 2004 by Heydon J. An application for special leave to appeal to the High Court from the judgment of Branson J was dismissed on 10 March 2006 by Hayne and Heydon JJ. 5 SZAJB filed a second application in the Federal Magistrates Court on 30 March 2006 again seeking judicial review of the decision of the Tribunal made on 28 February 2003. Raphael FM summarily dismissed the application on the Minister's motion on the basis that it was out of time having regard to the provisions of s 477 of the Act. His Honour also noted that the claim appeared to be barred as res judicata because all of the issues to be tried between the parties had already been tried. SZAJB had told the Court that the reason he had filed the fresh proceedings was because of the manner in which he had been let down by his migration agent. He applied for leave to appeal from the second judgment of Raphael FM. That application was dismissed by Jessup J on 14 September 2006. An application for special leave to appeal against the decision of Jessup J was dismissed by Hayne and Crennan JJ on 24 May 2007. 6 On 19 June 2007 SZAJB filed a further application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. He applied for an order that the time for making the application be extended under s 477 of the Act. In short reasons for judgment dismissing the application on 9 July 2007 Scarlett FM said (at [2]): It can clearly be seen that the application is out of time in that it was not filed within 28 days of actual notification of the Tribunal decision. Sub-s 477(1) of the Migration Act requires that an application for review be filed within 28 days of the actual notification. Transitional provisions in fact deem matters prior to 1st December 2005 to have been notified on 1st December 2005. Even so, the application is out of time. Item 42 of the Migration Litigation Reform Act makes that very clear. Thus, the Court's power to extend the time for filing by 56 days under the provisions of sub-s 477(2)(a) of the Migration Act does not apply. The application for an extension of time would need to be made within 84 days of actual notification of the Tribunal decision. 7 His Honour pointed out that the last day on which the application could have been made was 23 February 2006. He accepted the submission by the solicitors for the Minister that by virtue of s 477 the Court had no jurisdiction to hear the application. He went on to refer to claims by SZAJB that he had been misled by his migration agent who was no longer a migration agent. However the fact was that he had sought review of the same Tribunal decision on two previous occasions. In setting out the history of the matter his Honour said (at [9]): This is a matter where the Applicant is endeavouring to go around the circuit for the third time. Apart from the fact that the application is out of time and the Court has no jurisdiction, the application is a most blatant abuse of process. It will be dismissed…. 8 The disposition was curious in that his Honour made two orders for dismissal on different bases. His orders were: (1) The Application is dismissed as incompetent. (2) The Application is dismissed as an abuse of process. (3) The Applicant is to pay the First Respondent's costs on an indemnity basis fixed in the sum of $1,300.00. (4) No further application for review of the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on 21 March 2003 is to be accepted for filing without leave of the Court. 9 On 30 July 2007 SZAJB filed an application for an extension of time to file and serve a notice of appeal from the judgment of Scarlett FM. A draft notice of appeal was filed with the application. In it SZAJB alleged that the Federal Magistrates Court had erred in law in determining that it did not have jurisdiction to review the matter and that it had failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. The Minister filed a notice of objection to competency of the appeal on the basis that it was a purported appeal from an interlocutory judgment and that such an appeal could not be entertained without leave. 10 SZAJB obtained legal representation. On 18 October 2007, having regard to argument set out in an affidavit sworn by the appellant on 30 July 2007, the Minister issued a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) and O 51, r 1 of the Federal Court of Australia Rules. The s 78B notice was forwarded by facsimile to the Attorney General for the Commonwealth of Australia and to the Attorneys-General for the States and Territories on 18 October 2007. By 26 October 2007 written responses had been received from the Attorney General for the Commonwealth and the Attorneys-General for the States of South Australia, Western Australia, Tasmania and the Northern Territory advising that they did not intend to intervene in the proceedings. As at 25 October 2007 no response had been received from the Attorneys-General for the States of New South Wales, Victoria and Queensland or for the Attorney-General of the Australian Capital Territory. In the letter to each of the Attorneys-General they were advised that the matter was listed for hearing on 29 October 2007. 11 The constitutional contention raised by SZAJB as appeared from his affidavit of 30 July 2007 was that s 477(1) of the Act is invalid. He relied upon the decision by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651. That decision held invalid s 486A, a time limit provision applicable to the High Court. Grounds of proposed appeal 12 SZAJB was represented at the hearing of the application for leave to appeal by Dr Mantziaris acting pro bono for him pursuant to O 80 of the Federal Court Rules. At the hearing counsel provided the Court with a proposed substituted notice of appeal. Comprehensive written submissions on the validity and construction of s 477 of the Act were provided and counsel spoke to them. 13 The grounds of the proposed appeal by SZAJB were as follows: 1. His Honour erred in law by relying on Migration Act 1958 (Cth), s 477 to dismiss the appellant's application for an extension of time, in that the time limits stated in section 477 are ineffective as a result of the decision of the High Court of Australia in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 14; 234 ALR 114. 2. His Honour erred in law by relying on section 477 of the Migration Act 1958 (Cth) to dismiss the appellant's application for an extension of time, in that section 477 is invalid under Chapter III of the Constitution, by reason that it is an impermissible intrusion into the judicial power of the Commonwealth, as it directs the Federal Magistrates Court as to the manner and outcome of the exercise of its power to extend time limits and its discretion to award remedies otherwise available within the jurisdiction conferred under section 476 of the Migration Act. 3. His Honour erred in law by relying on section 477 of the Migration Act 1958 (Cth) to dismiss the appellant's application for an extension of time, in that section 477 is invalid by reason that it offends the guarantee of due process under Chapter III of the Constitution by directing the federal judiciary to a differential treatment of applications for a review of migration decisions depending on whether the application for review was lodged in the original jurisdiction of the High Court conferred under section 75(v) of the Constitution, or within that 'same original jurisdiction in relation to migration decisions' conferred by section 476 of the Migration Act upon the Federal Magistrates Court. 4. His Honour erred in law by dismissing the appellant's application for an extension of time as an abuse of process, as previous proceedings brought by the appellant had been dismissed on the basis of section 477 of the Migration Act, this section being ineffective or invalid, for the reasons listed in grounds 1-3 above. Only one operative order of dismissal 14 The application was purportedly dismissed by two orders relying on different bases. The first order was based upon the finding that the application was incompetent. That is to say it was outside the jurisdiction of the Federal Magistrates Court because it was out of time. The second was that it was an abuse of process. The two orders could not operate together. Once the application had been dismissed for want of jurisdiction, no further order dismissing it for another reason could properly be made. The second "order" reflected no more than his Honour's finding that, even if he had jurisdiction to entertain the application, it would have been dismissed as an abuse of process. It did not take effect as an order. The only operative dismissal was by the first order. Whether leave to appeal is required from dismissal for want of jurisdiction 15 The applicant sought leave to appeal against the dismissal of the application. There is a question, agitated by the appellant in SZABG, whether dismissal for want of jurisdiction is an order against which an appeal lies as of right. The appellate jurisdiction of the Federal Court is relevantly defined in s 24 of the Federal Court of Australia Act 1976 (Cth) and includes, under s 24(1)(d) "appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than … [immaterial exceptions]". Section 24(1A) then provides: An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. The term "interlocutory" is not defined but is opposed to the term "final" as appears from the definition of "judgment" in s 4 of the Act as: … a judgment, decree or order, whether final or interlocutory, or a sentence. Thus judgments and orders are either final or interlocutory: see Hall v Nominal Defendant (1966) 117 CLR 423 at 443 (Windeyer J) citing Bramwell LJ in Standard Discount Co v La Grange (1877) 3 CPD 67 at 69-70. 16 The distinction can be "productive of much difficulty": Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ). The discrimen, broadly stated, is that a judgment is final if it finally disposes of the rights of the parties. Otherwise it is interlocutory: Hall 117 CLR at 439-440 (Taylor J, Owen J agreeing) and 443 (Windeyer J); Licul v Corney (1976) 180 CLR 213 at 225. 17 As was observed in the Full Court in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 there has been much debate about the taxonomy of particular kinds of judgments or orders as interlocutory or final. The leave requirement which depends upon the distinction is intended to restrict the extent to which decisions relating to matters of practice and procedure will be reviewed: Re Will of Gilbert (1946) 46 SR(NSW) 318 at 323 (Jordan CJ); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. 18 Where an order, even though interlocutory, has the practical effect of finally disposing of a party's rights then leave will usually be given to appeal against it. However the classification of a decision as final rather than interlocutory depends upon its legal character rather than its practical effect. In Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 the question was whether an order made for the production of documents by a non-party to proceedings was final or interlocutory. The Full Court, in characterising the challenged order as interlocutory stated that in applying the test of whether a judgment finally disposed of rights "the court must have regard to the legal rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings". It relied upon Carr 147 CLR at 248; Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512. See also Meredith v Commissioner of Taxation (2002) 125 FCR 308 at [24]-[25]. 19 A few months after the Full Court's judgment in Brouwer 73 FCR 241, another Full Court in Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" (1997) 79 FCR 71, held that a decision setting aside the issue, in admiralty jurisdiction, of a writ in rem and dismissing the proceedings for want of jurisdiction was final and that leave was not required to appeal against it. In so doing the Court applied a criterion of "effective finality". It did not refer to the earlier judgment of the Full Court in Brouwer 73 FCR 241 although there was a common member of both Courts. Its criterion was derived from Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 at 38. In that case the Supreme Court of Victoria had dismissed an appeal from a decision of McGarvie J ordering that an action before him be forever stayed on the ground that the matters in question could have been litigated in earlier proceedings. Gibbs CJ noted that McGarvie J had stayed the proceedings on the basis of an estoppel. Because of that element he distinguished the case from the decision of the Privy Council in Tampion v Anderson (1973) 3 ALR 414 in which it was held that an order staying an action as an abuse of process was an interlocutory judgment. Gibbs CJ said (at [4]): It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled. Mason and Murphy JJ agreed. The term "as a matter of reality" found its way into the judgment of the Full Court in Zoya Kosmodemyanskaya 79 FCR 71. The Court formulated the criterion for characterisation of the order under appeal as (at 79): Can it be said, "as a matter of reality", that the orders made here "finally dispose of the rights of the parties"? The Court answered that question (at 80): The reality, in our view, is that, when considered in context, the orders made finally disposed of the whole of the proceedings for want of jurisdiction. The Court observed that in making his orders the primary judge spoke in his reasons for doing so of "completely adjudicating on the issues between the parties…". 20 Although it used language which might have suggested a "practical effects" test the substantive reasoning in the Zoya Kosmodemyanskaya 79 FCR 71 judgment appears to have been consistent with a legal finality test. The dismissal depended upon adverse findings of fact (albeit jurisdictional facts) central to the claim. Importantly, the decision did not and cannot be taken to have enunciated as a general proposition that where the reason for the dismissal of an action is want of jurisdiction, the judgment of dismissal is for that reason a final judgment. 21 Minogue v Williams (2000) 60 ALD 366 was a case in which proceedings were commenced in the High Court invoking the jurisdiction conferred on it by s 75(i) of the Constitution in matters arising under treaties. The proceeding was remitted to the Federal Court and there dismissed by Weinberg J on the basis that it did not involve a matter arising under a treaty. The dismissal was thus based on want of jurisdiction. The Full Court on appeal said (at [18]): It is necessary for the applicant to apply for leave to appeal as the judgment of Weinberg J was interlocutory rather than final, notwithstanding the consequence of the decision for the applicant. Whether a judgment is final, as distinct from interlocutory, depends upon whether the judgment finally determines the rights of the parties to the proceedings: … The Court cited authority, including Brouwer 73 FCR 241. It continued (at [18]): Although Weinberg J dismissed the applicant's action or proceeding because of lack of jurisdiction, the judgment has not, in a legal sense, determined the rights of the parties that were in issue in that proceeding. Thus, the substantive claims of the applicant particularly in respect of s 47 of the Corrections Act, remain undertermined. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: … 22 In Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695, Merkel J observed that there was arguably some tension between the two Full Court decisions in Zoya Kosmodemyanskaya 79 FCR 71 and Minogue 60 ALD 366. Fifita involved an appeal from a judgment of a single judge of the Court dismissing a purported application for an order of review on the basis that the Court had no jurisdiction to entertain it. The appeal was dismissed in the Full Court. There was no effective contradictor on the question of whether the first instance decision was interlocutory. Spender J said however (at [2]): It is appropriate to note that the authorities suggest that the decision in this case is interlocutory and therefore leave is necessary. He referred, inter alia, to Minogue 60 ALD 366 and added (at [8]): In this case the dismissal of the proceedings on the ground that the Court had no jurisdiction to entertain the application of Ms Fifita means in a legal sense that her rights remain undetermined. It seems therefore that in these proceedings the decision sought to be appealed from is interlocutory and that leave would be required, and that in the absence of leave the appeal is incompetent. Because, however, the matter has not been the subject of a contradictor, it is preferable that the appeal not be dismissed on the technical ground that it is incompetent in the absence of leave, but that the substantial merits of the matter be looked at. The appeal was dismissed on the basis that the decision at first instance was "incontrovertibly correct". 23 Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained. Whether leave to appeal should be granted 24 Generally speaking an applicant whose application is dismissed for want of jurisdiction and who presents a serious issue for argument that the dismissal was erroneous could ordinarily expect to be given leave to appeal against the judgment. 25 The argument presented in this case was that s 477 of the Act was invalid. The argument relied upon Bodruddaza 228 CLR 651. In that case an application was made to the High Court in its original jurisdiction under s 75(v) of the Constitution for the issue of constitutional writs in relation to a decision of a delegate of the Minister refusing the grant of a residency visa. The Minister contended that the application to the High Court was out of time as beyond the maximum period of 84 days allowed by s 486A of the Act. The Court held that s 486A was invalid as it curtailed or limited the right and ability of the applicant to seek relief under s 75(v). 26 As it stood following amendment in 2005, in the light of Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, s 486A provided: (1) An application to the High Court for a remedy to be granted in exercise of the court's original jurisdiction in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (1A) The High Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the High Court is satisfied that it is in the interests of the administration of justice to do so. (2) Except as provided by subsection (1A), the High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section. 27 The term "migration decision" is defined in s 5(1) thus: migration decision means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision. Section 5E defines "purported privative clause decision" thus: (1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an exercise of jurisdiction; in the making of the decision. (2) In this section decision includes anything listed in subsection 474(3). The latter definition of decision includes the refusal of a visa. 28 In the joint judgment of the majority the High Court rejected a contention that s 486A was directed to conferring validity upon the ministerial decision. Their Honours said at [30]: The text of s 486A indicates, as the above example illustrates, that it is directed not to the conferral of validity but to deny the competency of applications to this Court not commenced within the stipulated period. It is in this setting that the alleged invalidity of s 486A falls for decision on the special case. Their Honours found it unnecessary to decide the case on the plaintiff's proposition which was that constitutionally permissible legislative regulation of s 75(v) jurisdiction could never support a fixed time limit upon the making of an application to the Court. Their Honours said (at [53]): It is sufficient to accept a less absolute proposition as follows. This is that a law with respect to the commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002. 29 The High Court held that s 486A fixed upon the time of actual notification of the decision in question and had the consequence that it did not allow for the range of vitiating circumstances which could affect administrative decision making. It was from that deficiency that the invalidity of the section flowed (at [57]): The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. In that case the plaintiff was one day late apparently by reason of a failure on the part of his migration advisor. 30 Section 477 of the Act which was in issue in the present case, imposes time limits on applications to the Federal Magistrates Court in terms similar to those of s 486A in relation to the High Court. Section 477A, similarly worded, applies to proceedings in this Court. 31 Section 477 provides: (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section. 32 A point of immediate difference between the position with respect to s 477 and that with respect to s 486A is that s 477 operates upon a jurisdiction defined by statute pursuant to Chapter III of the Constitution. Section 486A operated directly upon the jurisdiction conferred upon the High Court by operation of s 75(v) of the Constitution. The considerations which underpinned the High Court's finding that s 486A was invalid do not apply to s 477. Nevertheless submissions were made seeking to link the fate of s 477 to that of s 486A. The thrust of the argument was that s 486A was part of a legislative scheme imposing uniform time limits on all courts in which applications for judicial review of ministerial decisions could be commenced. After the decision in Bodruddaza 228 CLR 651 an application commenced in the High Court could be remitted to the Federal Magistrates Court even though it had been commenced outside the time limited for commencing that proceeding in the latter court. The same would be true of cases remitted from the High Court to the Federal Court. The dichotomy created by the invalidation of s 486A should spell invalidity for s 477 or at least that it should be read down. The reading down contemplated presumably would remove those elements of s 477 which would prevent the Federal Magistrates Court from extending time. 33 Counsel for SZAJB acknowledged that the finding by this Court that s 477 is invalid or should be read down would involve departing from previous decisions of the Federal Court: 1. SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260 (decided before Bodruddaza 228 CLR 651). 2. Fisher v Minister for Immigration and Citizenship (2007) 95 ALD 66 at [39]-[43]. 3. SZJYV v Minister for Immigration and Citizenship [2007] FCA 731. It was noted that in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 the validity of the section was assumed and was apparently not put in issue by the parties. 34 In SZICV 158 FCR 260, Buchanan J, with whom Besanko J agreed, observed that s 486A of the Act purported to limit the exercise of the original jurisdiction of the High Court in the same way as s 477 limited the jurisdiction of the Federal Magistrates Court and s 477A limited that of the Federal Court. He acknowledged that there was a challenge to the validity of s 486A then before the High Court in the Bodruddaza case and that if the issue for decision in SZICV 158 FCR 260 had been the same as that pending before the High Court, it might have been appropriate to await the High Court's decision. He said (at [46]-[48]): However, in my view, the argument fails at the threshold. It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision. In my view the imposition of such a limitation is the intention and effect of s 477. The relevant provisions must be read conformably and in a way which gives them appropriate work to do as an harmonious legislative scheme. The opening grant of jurisdiction in s 476(1) - viz "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution" is a statutory, not a constitutional, grant of power. It does not prevail over limitations expressed in the same statute unless that results from a proper construction of the provisions as a whole. Clearly it does not prevail over the exclusions in s 476(2) to which the grant of jurisdiction is expressed to be subject. Neither, in my view does it prevail, as a matter of statutory construction, over the limitations expressed in s 477. Whatever might be said about the potential clash between s 486A and the reservation of authority to the High Court under s 75(v) of the Constitution, I do not accept that Parliament intended that the operation of s 477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Constitution, that will not signify that the intention remains unrealised in relation to s 477. In my opinion his Honour's analysis was correct and the decision in Bodruddaza 228 CLR 651 was entirely consistent with that approach. 35 Prior to the introduction of the privative clause provision, s 474, there was a distinction between the jurisdiction of the High Court under s 75(v) and the jurisdiction of the Federal Court under Part 8 of the Act which was limited by the defined grounds upon which judicial review could be sought. That was a dichotomy intended by Parliament which had the no doubt unintended effect that a large number of applications were brought in the High Court on grounds including ostensible bias which were not available in the Federal Court. The mere fact of an inconvenient distinction between the jurisdictions of one court and that of another and resultant forum shopping does not spell invalidity for the legislation which produces that effect. 36 A separate limb of attack on s 477 involved the contention that it was an impermissible intrusion on the judicial power of the Commonwealth. If that proposition were correct then no federal jurisdiction could ever be subject to a non-extendable time limit. That is to say, the Parliament could not define federal jurisdiction by reference to actions commenced within a specified time limit. The argument is unlikely to succeed although it might require more extended consideration than is necessary in this case. That extended consideration is unnecessary because the grant of leave to appeal would, in my opinion, be futile. The learned magistrate was correct in holding that the proceedings were an abuse of the court's process. 37 The history of the matter and of the proceedings associated with it has been set out earlier in these reasons. The Federal Magistrates Court, like the Federal Court, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 589. The power of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing. As Lord Halsbury said in 1889: My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. … I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed. Reichel v Magrath [1889] 14 App Cas 665 at 668 The decision did not turn upon any finding of res judicata or issue estoppel. Although those doctrines could have been available, as Handley JA said in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (at 202): … the availability of a narrow ground for decision does not displace the actual ratio if the court decides the case on a wider basis … See also Walton v Gardiner (1993) 177 CLR 378 in which Mason CJ, Deane and Dawson JJ observed (at 393): … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. 38 The preceding cases and other authorities on the point were discussed in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699. As I said in that case (at [66]): The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. 39 It is sufficient to say that the proceedings brought in the Federal Magistrates Court and the subject of the present application for leave to appeal did constitute an abuse of process. No encouragement should be given to their continuance even if there were an arguable case about the validity or operation of s 477 of the Act. The success of that argument would not affect the character of the proceedings as an abuse of process. In my opinion therefore leave should be refused. Conclusion 40 For the preceding reasons, the application for leave to appeal should be dismissed. SZABG and SZABI - procedural background 41 The appellants who are husband wife, are citizens of Sri Lanka. They arrived in Australia on 16 August 1999. On 17 September 1999 they lodged an application for a protection visa with what was then the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused their application on 20 March 2000. On 3 April 2000 they applied to the Tribunal for review of that decision. On 22 September 2002 the Tribunal affirmed the decision not to grant them protection visas. The appellants then applied for judicial review of the Tribunal's decision. On 16 June 2003 the application was dismissed with costs by Driver FM. They then appealed from his decision to the Federal Court by a notice dated 4 July 2003. However on 9 September 2003 they filed a notice of discontinuance. On 16 September 2003 they filed an application in the High Court of Australia for orders nisi for the issue of writs of prohibition and certiorari to quash the decision of the Tribunal. On 16 February 2004 Heydon J remitted their application to the Federal Court. On 21 October 2004 Jacobson J dismissed the application. 42 On 9 November 2004 the appellants lodged an appeal in the Federal Court against the judgment of Jacobson J. That appeal was dismissed on 13 May 2005 by a Full Court comprising Wilcox, Gyles and Downes JJ. The appellants were ordered to pay the Minister's costs of the appeal. The appellants then applied to the High Court for special leave to appeal from the judgment of the Full Court. That application was dismissed by Gummow and Heydon JJ on 7 March 2006. 43 On 1 February 2007 a fresh application seeking judicial review under s 476 of the Act in respect of the decision of the Tribunal given in September 2002 was lodged. The application and affidavit in support of it acknowledged that actual notification of the Tribunal's decision had occurred prior to December 2005. It was not in contest that if s 477 of the Act were legally effective and constitutionally valid, the application was incompetent. 44 On the Minister's application the application was dismissed as incompetent on 26 June 2007 by Smith FM with an order that the appellants pay the Minister's costs in the sum of $5,000. 45 On 17 July 2007 the appellants filed a notice of appeal in this Court against the decision of Smith FM. The Minister filed a notice of objection to competency on 23 July 2007. The objection was taken on the basis that the purported appeal was from an interlocutory judgment of the Federal Magistrates Court and that, pursuant to s 24(1A) of the Federal Court Act, the appellants required leave to appeal against the decision. The appellants argued that leave to appeal was not required as the decision appealed from was final. Grounds of appeal 2. His Honour erred in dismissing the appellants' application for a remedy under section 476 of the Migration Act 1958 (the "Act") as incompetent on grounds of strict time limits found in section 477 of the Act in circumstances where section 477 is constitutionally invalid because it "stultifies the exercise of the judicial power of the Commonwealth" (Abebe v Minister (1999) 197 CLR 510 at [134] per Gummow and Hayne JJ) by curtailing the constitutionally entrenched right to seek a review of an administrative decision. Particulars a. His Honour was bound to follow the recent Full Court decision in SZICV v Minister [2007] FCAFC 39. b. However, SZICV did not consider the High Court decisions in Abebe and Bodrudazza v Minister [2007] FCA 14. c. While Parliament may be acting within the power conferred by the Constitution whenever it authorises a federal court such as the Federal Magistrates Court ("FMC") to determine rights, duties liabilities of litigants which arise out of controversies that fall within paragraphs (i) - (v) of the section 75 of the Constitution, it nevertheless acts outside the Constitution by completely curtailing the right to any such remedy if not brought within the limitation period created by Parliament. [sic] d. It is constitutionally impermissible for Parliament to so restrict entitlement to constitutionally guaranteed rights of review. 3. His Honour also referred in dismissing the appellants' alternative statutory construction argument - viz, the structure of Div 2 of Part 8 of the Act reveals an inconsistency considering that one of the central provisions enacted to ensure uniform time limits was recently held by the High Court in Bodruddaza to be constitutionally invalid. 4. His Honour also erred in applying the test deeming the review application an abuse of process for reason of either res judicata or Anshun estoppel. Particulars a. His Honour stated that "none of the arguments provide the requisite 'special circumstances' or explain why it was now 'reasonable' to permit new grounds to be raised in fresh proceedings. b. His Honour referred to medical evidence showing psychological disabilities suffered by one or both appellants. c. In the preceding circumstances it was not unreasonable that the fresh grounds now sought to be raised were not raised in the original applications and amount to a special circumstance especially considering that the appellants' [sic] were not legally represented before the most recent application. d. The appellants reiterate and rely on the grounds of review adumbrated in the application filed on 1 February 2007 in the Federal Magistrates Court in Matter No SYG 315/2007. The Minister's cross appeal 46 The Minister filed a cross appeal on the single ground that: His Honour erred by failing to order that the Application be dismissed as an abuse of process under rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), on the ground that the Applicants were precluded from raising the issues canvassed in the Application by principles of res judicata and/or Anshun estoppel. SZABG and SZABI - factual claims and Tribunal disposition 47 The appellants are husband and wife. The husband is a Tamil from the province of Jaffna in the northern region of Sri Lanka. Prior to 1980 he was employed in the Sri Lankan Department of Irrigation as an irrigator. In 1980 he became a soil tester. This job involved him travelling around various areas in the north of Sri Lanka including Jaffna. He had a vehicle which was allocated to him. In the course of his work he claimed to have encountered many difficulties and to have been subject to considerable mistreatment by both the Liberation Tigers of Tamil Eelam (LTTE) and the security forces as the LTTE borrowed his vehicle which was a jeep in the late 1980s. In the early 1990s the police also demanded the use of his jeep. He claimed that in April/May 1993 he was detained at Thalady Camp by the army and accused of being an LTTE supporter. He said he was released after paying a bribe. 48 The appellant husband claimed that he was afraid to stay in Colombo whenever he visited there. He felt unsafe in his work given the threats from the army and the pressure from the LTTE. He had a friend in Brunei who arranged for him to get a work visa there. 49 In 1993 the appellant husband left Sri Lanka and stayed in Brunei working until August 1999. He said he returned to Sri Lanka in September 1995 to collect his wife and take her back with him to Brunei. He was unable to find her and left Sri Lanka returning to Brunei paying bribes at various points on his way out of the country. He was unemployed between October 1996 and February 1997 in Brunei but obtained further employment there in February of 1997. He had to return to Colombo to get a work visa and renew his passport. He stayed in Sri Lanka for a couple of weeks and then returned to Brunei in March 1997. He said he arranged for a visa for his wife to join him in Brunei. 50 When he finished his employment in Brunei in July 1999 the appellant husband returned to Sri Lanka and stayed at a lodge in Colombo. He believed he could not get back to his village because of demands for bribes and threats from the security forces. He decided to go to Australia to avoid the continued threats and demands for money from the police. He said in his application that he was afraid to return to Sri Lanka because he feared persecution from security forces who thought he was a supporter of the LTTE when he worked in the Irrigation Department. He said he came from the Jaffna area and did not think it was safe for him to live anywhere in Sri Lanka because he was a Tamil and had had some involvement in the LTTE. 51 The Tribunal found in its reasons for decision that the appellant husband and his wife had returned several times to Sri Lanka since the last time he claimed to have experienced mistreatment or harm in 1993. They had been able to enter the country and leave it without much difficulty. The Tribunal acknowledged that the appellant husband had had to pay bribes at various points but found that this was a common practice in Sri Lanka. 52 The Tribunal found that the Sri Lankan police and security authorities were not interested in the appellant husband immediately prior to his departure from Sri Lanka in 1993 and that he had no reason to believe that they would have any continuing interest in him. Nor was it satisfied on his evidence that there was any likelihood that the LTTE would seek him out or cause him harm as he had done nothing to antagonise or threaten them. On the contrary, he had assisted them when required to do so. 53 The Tribunal did not accept that the fact that the appellants were Tamils would cause them any special difficulty in their particular circumstances as they had not experienced such difficulties in past travel in and out of the country. Such difficulties as they did encounter were resolvable with the payment of a bribe. The objection to competency 54 For the reasons stated in the cognate application of SZAJB the learned federal magistrate's order dismissing the application as outside the time limits imposed by s 477 was interlocutory in character and leave was necessary in order to bring the appeal. The objection to competency therefore succeeds. Abuse of process 55 The question whether leave could or should be granted to appeal against the decision of the Federal Magistrates Court in this case in the end turns, as in the cognate case, upon considerations of its utility. The constitutional and constructional arguments related to s 477 have already been mentioned. However even were leave to be granted to agitate those unpromising points, the application in the Federal Magistrates Court would properly be characterised as an abuse of process. 56 It was submitted on behalf of the appellants that the history of the litigation reveals that they have not had the benefit of legal representation at any stage of the litigation in their application for review of the Tribunal decision and that from at least 2 August 2002 the male appellant, who was the active participant in the litigation, had been diagnosed as "mentally traumatised" and as suffering from "depression and anxiety due to the unfortunate treatment that he had in the hands of political factions in Sri Lanka". 57 The appellants contended that the previous Full Court's finding that there could not be a clearer case for the application of those principles of res judicata, issue estoppel and abuse of process was not fatal to the prospects of the present application. The appellants contended that the issues sought to be argued in the proceedings before the Federal Magistrates Court were distinct from those argued in the previous litigation sufficient to found a separate cause of action for the purposes of res judicata or issue estoppel. They also contended that it was not unreasonable not to have raised the present grounds of review, in particular with regard to the relocation principle, notwithstanding that these were relevant to the previous proceedings. 58 In my opinion these matters do not defeat the characterisation of the proceedings in the Federal Magistrates Court as an abuse of process. While there may have been circumstances personal to the appellants which had the result that they did not present their cases as fully as they ought to have been presented, this is not a basis upon which the litigation can be reopened. Had leave been sought, leave to appeal would have been refused in this case. Conclusion 59 For the preceding reasons the appeal in SZABGand SZABIshould be dismissed. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

SZAJB v Minister for Immigration and Citizenship

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (6)

Cases Cited (48)

Cited By (14)