SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 On 26 May 2005 I dismissed this appeal giving short ex tempore reasons for my decision. These are more detailed reasons for the judgment pronounced by me on that day. 2 By a notice of appeal filed on 18 March 2005 the appellants initiated an appeal from a judgment of the Federal Magistrates Court delivered on 23 February 2005. On that day Scarlett FM dismissed an application made by the appellants for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the respondent to refuse to grant them protection visas.

judgment of the federal magistrates court - final or interlocutory? 3 The reasons for judgment of the learned Federal Magistrate, and the orders made by his Honour, suggest that his Honour may have regarded the application made to that court as 'incompetent'. Nonetheless, the respondent has not contended that the judgment of the Federal Magistrate is an interlocutory judgment from which an appeal may only be brought with leave (see s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). I accept that the respondent was right not to contend that his Honour's judgment is interlocutory. 4 An order that dismisses a proceeding because it does not disclose a reasonable cause of action or because it is frivolous, vexatious or otherwise an abuse of the process of the court is an interlocutory order (Re Luck (2003) 203 ALR 1). If the appellants had, by their application to the Federal Magistrates Court, acknowledged that the decision of the Tribunal was not affected by any error of jurisdiction and was thus a 'privative clause decision' within the meaning of the Migration Act 1958 (Cth) ('the Act'), their application would have been open to be dismissed as incompetent. The Federal Magistrates Court does not have jurisdiction to review a 'privative clause decision' within the meaning of the Act. An application so framed would not have disclosed a reasonable cause of action. 5 However, the appellants did not accept that the decision of the Tribunal was a 'privative clause decision' within the meaning of the Act. They asserted by their application that the decision of the Tribunal was affected by jurisdictional errors, including denials of procedural fairness and an absence of good faith. The Federal Magistrates Court thus has jurisdiction to hear and determine their application. It was obliged to determine, as indeed it did, whether the decision of the Tribunal was affected by jurisdictional errors as asserted by the appellants. I note incidentally that in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the High Court has held that when this Court is exercising the jurisdiction vested in it by s 39B of the Judiciary Act 1903 (Cth) with respect to matters in which a writ of mandamus or prohibition is sought against the Tribunal, the Tribunal is a necessary party to the proceeding. It must also be the case that the Tribunal is a necessary party when the Federal Magistrates Court is exercising the same jurisdiction under s 483A of the Act. 6 Having heard the appellants' application the Federal Magistrate rejected their contention that the decision of the Tribunal was affected by jurisdictional errors. His Honour for this reason rejected their application for relief in respect of the Tribunal's decision. On the finding made by him, the decision of the Tribunal was a 'privative clause decision'. However, his Honour's rejection of the appellants' contentions did not render their application to the Federal Magistrates Court incompetent; it simply meant that the application failed because the appellants did not establish an essential element of the cause of action upon which they relied. For the same reason, the time within which the appellants were required to make their application for judicial review of the decision of the Tribunal was not limited by s 477(1A) of the Act. That subsection has application only in respect of a 'privative clause decision'; an essential element of the applicant's (unsuccessful) cause of action was that the decision of the Tribunal was not a 'privative clause decision'.