SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs

decision of the federal magistrate 7 The respondent objects to the competency of the appeal on the basis that the orders and judgment of 15 March 2004 are interlocutory and the appellant has not been granted leave to appeal against the orders and judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Section 24(1A) provides that 'an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal'. Section 24(1)(d) of the Federal Court Act gives the Court jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court. Section 24 has the effect that, if the judgment sought to be appealed from is interlocutory, an appeal shall not be brought unless a Judge gives leave to appeal. Pursuant to s 25(1A) of the Federal Court Act, the Chief Justice has directed that the appeal from the decision of Driver FM be heard before a single Judge. Section 25(2) provides that applications for leave to appeal and applications for extension of time in which to institute an appeal may be heard by a single Judge. Accordingly, it is clear that I have power to deal with the appeal, an application for leave to appeal and the respondent's motion. 8 Order 52 Rule 5 of the Federal Court Rules provides that an application for leave to appeal should have been filed within 21 days after the decision of the Federal Magistrate. Although the applicant has not filed an application for leave to appeal, the respondent consents to the Court treating this hearing as such an application. The difficulties faced by courts in determining the distinction between final and interlocutory judgments were discussed by French J in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [42]. His Honour referred to the policy behind s 24(1A): 'The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties.' 9 The general principle was also stated clearly by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177: 'appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure'. 10 Whether a judgment is final or interlocutory depends on whether the judgment finally determines the rights of the parties to the proceedings so that the court must have regard to the legal rather than the practical effect of the judgment; see Brouwer v Titan Corporation Ltd (1977) 73 FCR 241 at 242; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; Minogue v Williams [2000] FCA 125 at [18] and In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [9] per McHugh ACJ, Gummow and Heydon JJ: 'An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.' 11 It was held, however, in Ex parte Bucknell (1936) 56 CLR 221 that where the practical operation of the judgment is the final determination of the rights of the parties, although interlocutory in legal effect, a prima facie case can be found to exist for granting leave to appeal. In Little v State of Victoria [1998] 4 VR 596 at 601, Callaway JA discussed the reasons for granting leave as follows: 'if a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed, it is highly desirable that there be no appeal except by leave. Leave will usually be granted in such cases if there is any doubt about the correctness of the decision below, but truly hopeless appeals should be prevented, to the advantage of the parties and other litigants waiting to be heard.' 12 The Full Court of the Federal Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 adopted, as a general test for application for leave to appeal an interlocutory decision, the principles in Niemann v Electronic Industries Ltd [1978] VR 431: (1) 'whether in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court'; and

the decision of the federal magistrate 13 Driver FM gave the applicant the opportunity to explain what was wrong with the decision of the Tribunal. The applicant claimed that his migration agent had acted without consultation or instructions when the invitation to attend the hearing was declined. No evidence was provided to support that claim. Driver FM held that: 'Any fault on the part of the migration agent in dealing with the hearing invitation could not support an assertion of jurisdictional error.' His Honour relied on a decision of the Chief Federal Magistrate in Applicant M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23 ('M172'). 14 In M172, the applicants alleged that they had been denied the opportunity to appear before the Tribunal by their migration agent. There the assertion was that the applicants were misled by the migration agent. It was not an admitted fact and there was no evidence to support the allegation. As Bryant CFM pointed out, a mere allegation falls far short of establishing procedural unfairness however described. The basis of her Honour's decision seems to have been that it would at least be a requirement to show some demonstrated failure on the part of the Tribunal. Her Honour also relied upon the decision in the House or Lords in Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 and, in particular, what was said by Lord Bridge at 898: 'These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of procedural impropriety or that natural justice has been denied to him'. As her Honour pointed out, 'all the Australian authorities require some defect in the decision making process'. 15 Driver FM found that the application for review did not 'disclose any course [sic] of action'. His Honour held that there was no real question to be tried and that the application should be dismissed for failing to disclose a reasonable cause of action and considered that an amendment to the application would not help. His Honour held that the assertion that the migration agent had erred in dealing with the hearing invitation was not jurisdictional error. In dealing with the submission that was made as to the existence of supplementary information that the applicant wished to put before the Tribunal, his Honour held that such information, that was revealed subsequent to the Tribunal decision, could not support a claim of jurisdictional error (see NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] and [50]). 16 The Federal Magistrate expressed agreement with the Delegate concerning the lack of detail given to support the applicant's case and also agreed with the Tribunal that the material placed before the Tribunal was insufficient. The applicant did not add any further information to the original protection visa application when the application came before the Tribunal for consideration. The application for review to the Tribunal stated only a bare outline of the applicant's claim to be involved in the Falun Gong and to have been mistreated. The Tribunal found 'no indication that he has pursued the practice of Falun Gong in the time he has been in Australia' and no explanation for this was given. The Tribunal found that it was not possible for it to 'assess the nature and extent of any mistreatment he suffered in the past or the chance of any mistreatment in the future'. The Tribunal applied Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 to the effect that it was not obliged to make the applicant's case for him. It held that 'the claims amount to a number of very brief, unsubstantiated assertions with insufficient information so that the Tribunal was unable to 'be satisfied as to the facts or assess the chance of persecution in the future'. Therefore, the Tribunal held that the applicant was not a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.' 25 The Tribunal's notice to the applicant was sent in accordance with statutory requirements. Although the applicant asserts that he did not receive the notice, the Tribunal complied with its obligations to give the applicant notice of the hearing. I am satisfied that, within the framework of the Act, there was no failure to give the applicant the opportunity to appear before the Tribunal and the Tribunal was entitled to make a decision on the application for review in the absence of the applicant (see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184).

conclusion 29 In my view the application for an extension of time should be refused as an appeal from the decision of the Federal Magistrate would, in the words of the Full Court in Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 at [7] 'be futile'. 30 Accordingly, the orders of the Court are that the appeal is dismissed as incompetent and the application for an extension of time is refused. The applicant is to pay the respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

[2003] HCA 70

(1981) 148 CLR 170

(1977) 73 FCR 241

(1981) 147 CLR 246

(1991) 33 FCR 397

(1936) 56 CLR 221

(2000) 104 FCR 564

(1985) 6 FCR 155

[2004] FCAFC 24