SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs

Judgment (6 paragraphs)

[1]

The applicant had been represented before Mansfield J. 26 In contrast to this generalised statement of grounds which had been before Mansfield J, counsel who appeared for the applicant before Driver FM filed on the hearing a detailed and particularised amended application. The amended application referred to three alleged jurisdictional errors. The first, which was particularised, was that the RRT had not addressed the substantive claim of the applicant as to a well-founded fear of persecution, because it failed to take into account at all, or adequately, particular claims made by the applicant. The second was that the RRT had made its finding adverse to the applicant's credit on a false basis. The third was that the RRT had taken into account general country information rather than particular information in relation to the local situation. 27 The learned Federal Magistrate correctly observed that the grounds relied on in the amended application would fail if he should conclude that the RRT's findings were reasonably open on the material before it. Counsel for the applicant before his Honour conceded that very little had been put to the Delegate or to the RRT in advance of the RRT hearing. 28 The learned Federal Magistrate said (at [12]): 'The presiding member was concerned that at the hearing important claims were made by the applicant for the first time. The amended application takes issue with particular findings made by the presiding member but, in my view, there is virtually no prospect that the Court could be persuaded that those findings were not reasonably open to the presiding member on the material before her.' 29 I have read the reasons for decision of the RRT. In substance the presiding member did not accept the applicant's claims, and, in particular, did not think the applicant creditworthy, at least in respect of some of his claims, and gave reasons for her having formed that view. Paragraph 48 of the presiding member's reasons for decision was as follows: 'In summary I do not accept the applicant's claims because they are contrary to the independent information set out above, because the applicant did not provide any documentary or other support for his claims, because his claims at the hearing differed from details provided in his protection visa application, because he raised new claims at the hearing without any convincing reason why he had not previously mentioned the claims, and because the applicant's behaviour is inconsistent with a genuine fear of persecution.' This passage was followed by paragraphs supporting each of these grounds: Claims contrary to independent information paras [49] - [51] Failure to provide support for claims paras [52] - [54] Contradictions in claims paras [55] - [56] New claims raised at hearing paras [57] - [59] Behaviour inconsistent with genuine fear paras [60] - [64]

REASONS FOR JUDGMENT 1 The applicant, who appears unrepresented, applies for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of Australia ('FMCA') given on 23 September 2004. On that date Driver FM 'dismissed summarily as incompetent' the applicant's application for judicial review, ordered the applicant to pay costs, and directed that any further application by him to review the subject decision of the Refugee Review Tribunal ('RRT') be referred to a Federal Magistrate for directions. The application before the FMCA related to a decision of the RRT made on 19 February 2002 and handed down on 14 March 2002, affirming a decision of a delegate of the respondent (respectively 'the Delegate' and 'the Minister') not to grant the applicant a protection visa. 2 Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ('FCA Act') gives this Court jurisdiction to hear and determine appeals from judgments of the FMCA exercising original jurisdiction under a law of the Commonwealth, other than certain laws not presently relevant. In dismissing the application for review, the FMCA was exercising original jurisdiction conferred on it by the Migration Act 1958 (Cth) s 483A ('Migration Act') and cf the Judiciary Act 1903 (Cth) s 39B. Subsection (1A) of s 24 of the FCA Act provides, however, that an appeal shall not be brought from such a judgment of the FMCA that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. Ms Rayment, solicitor for the Minister, submits that the judgment of the FMCA was an interlocutory judgment and that leave to appeal is therefore necessary. 3 Whether the FMCA's judgment was final or interlocutory depends on whether the legal, as distinct from the practical, effect of the judgment is that it 'finally determined', as between the parties, whether the RRT decision was liable to be set aside on the grounds relied on by the applicant in the FMCA proceeding: cf Hall v Nominal Defendant (1966) 117 CLR 423 at 440-441 per Taylor J, 444-445 per Windeyer J; Licul v Corney (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 per Gibbs CJ, 253-7 per Mason J; Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 153; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 100-101; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 593-4; Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 at 242-244; Malouf v Malouf (1999) 86 FCR 134; Cubillo v Commonwealth of Australia (2001) 183 ALR 249 at [182]. 4 Did Driver FM finally determine that question? He concluded that the RRT's decision was a 'privative clause decision' (defined in s 474 of the Migration Act and having the conclusive effect prescribed in that section) and that therefore the FMCA lacked jurisdiction to entertain the application, which was necessarily to be dismissed as incompetent (at [14] and [17]). His Honour said that the case was not the ordinary one in which 'the issue of whether or not [a] RRT decision is a privative clause decision cannot be determined until a hearing is conducted' (at [6]), because the RRT decision had already been subjected to judicial review by Mansfield J in an earlier proceeding in this Court. Driver FM also noted that the application before him struggled 'to rise above a simple contest over the merits of the RRT decision' (at [10]). Finally, after referring briefly to the RRT's rejection of the applicant's claims on credibility grounds, the learned Federal Magistrate concluded that there was no basis for him to depart from the reasoning of Mansfield J. 5 In my opinion Driver FM did not regard himself as determining finally the merits of the grounds of review relied on in the amended application before him, even though his dismissal of the application as incompetent (like any summary dismissal) put an end to the proceeding. 6 In any event, there is a course of authority to the effect that a dismissal of a proceeding as incompetent is interlocutory for the purposes of appeal rights: Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169 at 174; Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694, per Spender J, with whom Finn J agreed, Merkel J expressing no view; and cf Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101 at [8]-[9]; Minogue v Williams (2000) 60 ALD 366 at [18] - [19]; Dai v Telstra Corporation Ltd (2000) 171 ALR 348 at [21]; Marketing Advisory Services (MAS) v Football Tasmania Ltd (2002) 42 ACSR 128 at [29]-[30]; Rana v University of South Australia [2004] FCA 559 at [8] - [15]; Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303 at [15], [16] (all summary dismissals for failure to show a reasonable cause of action); Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [17] - [19] (summary dismissal as an abuse of process). 7 While I think it tolerably clear that the FMCA judgment was interlocutory, as will appear below, strictly I am not required to decide whether it was. 8 Is there a time limit on the applicant's seeking leave to appeal? Order 52 r 15 of the Federal Court Rules ('FCRs') provides that a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. Therefore, if the judgment of Driver FM had been a final judgment the applicant would ordinarily have had until 12 October in which to file a notice of appeal. But 12 October was a Sunday, a day on which the Registry is closed. Therefore the applicant would have had until Monday 13 October 2004 in which to file a notice of appeal: FCR O 3 r 2(3). In fact the present proceeding was commenced on 18 October 2004, which would have been five days late for the filing of a notice of appeal. 9 Order 52 r 10 provides for a time limit of seven days for the seeking of leave to appeal from an interlocutory judgment of this Court, but there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA. Order 52 r 15 fixes a general limit of 21 days after the date on which the judgment appealed was pronounced for the filing of a notice of appeal (except in the case where leave to appeal is in fact granted, in which case the period is 21 days from the date when leave to appeal was granted, or where a later date is fixed for the purpose by the court appealed from, in which case the period of 21 days runs from that later date). Two alternative views are arguable: that there is no time limit on the seeking of leave to appeal from an interlocutory judgment of the FMCA, or that there is an implied time limit of 21 days after the date of the interlocutory judgment of the FMCA for the seeking of such leave. In my opinion the latter view is correct. The reason is simply that the supposed application for leave to appeal contemplates only an appeal, notice of which is required to be filed and served within that 21 day period. However: · once leave to appeal is granted, even if it is granted outside the 21-day period, the 21 day period for the filing of the notice of appeal runs from the date of the granting of leave (FCR O 52 r 15(1)(a)(ii)); and · the implied time limit of 21 days from the interlocutory judgment within which the application for leave to appeal must be made, may be extended even after that period has expired, and even though no application for the extension was made before it expired (FCR O 3 r 3(1),(2)). 10 It follows that on the basis that the present application for an extension of the time for filing a notice of appeal is to be treated, as I think it should be, as including an application for leave to appeal, it is again five days late and the applicant needs an extension of the time within which to apply for leave to appeal.

11 If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward (the ground of refusal is variously expressed in the cases), there will be: · no extension of time within which to apply for leave to appeal; and · no grant of leave to appeal; and · (assuming contrary to my conclusion expressed above, that Driver FM's judgment was final rather than interlocutory) no extension of time within which to file and serve a notice of appeal in exercise of a right of appeal. For the reasons which appear below, in my opinion, the applicant fails at this first hurdle. (I need not deal with two other matters although my initial impression is favourable to the applicant on both of them: whether his five day delay in approaching this Court is satisfactorily explained, and whether, assuming the Federal Magistrate's decision to be wrong, substantial injustice would be caused to the applicant by a refusal of leave: cf Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 315 at [21] (applications for leave to appeal); Atkinson v Commissioner of Taxation [2000] ATR 1; VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186; Wilson v Alexander [2003] FCAFC 272 (applications for extension of time).) 12 That conclusion makes it strictly unnecessary for me to deal with the present application as including an application for leave to appeal, and enables me to deal with it on the assumption, favourable to the applicant, that leave to appeal is not required and that he has a right of appeal for which he needs only an extension of time. Consistently with my view expressed above, however, I will deal with the application including an application for leave. 13 The applicant's draft notice of appeal sets out the following grounds: '2. The single Judge of the Federal Magistrates Court in his Honour's judgment delivered on 23 September 2004 failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1993. 3. The grounds and relief are very much similar with a recent High Court judgment: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth), ss 148(3), 424(1). 4. The Honourable Trial Judge erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling Government failed to protect politicians and civilians lives, which is a worldwide concern today. The Honourable Trial Judge did not take it into consideration. 5. Section 474 of the Migration Act is ineffective as per the two recent decisions of the High Court of Australia. The Honourable Trial Judge did not consider this in favour of me. 6. The applicant will face persecution if she [sic] returns to his country of origin as there are significant levels of violation of human rights; this was not considered by the Honourable Judge. 7. Recent High Court judgment: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgment: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).' 14 In order to assess whether these grounds have any prospects of success, it is necessary to recount the following background facts. 15 On 16 September 2000, the applicant, a citizen of India arrived in Australia. On 23 October 2000, he applied for a protection visa. On 20 November 2000, the Delegate refused the application. On 21 November 2000, the applicant lodged with the RRT an application for review of the Delegate's decision. On 14 March 2002, the RRT handed down its decision made on 19 February 2002 affirming that of the Delegate. 16 On 24 March 2003 the applicant commenced a proceeding in the High Court of Australia by way of an affidavit with a draft order nisi annexed (proceeding A 166 of 2003). The applicant sought, inter alia, an order nisi for writs of prohibition, certiorari and mandamus. So far as certiorari is concerned, the application was outside the six month period stipulated by O 55 r 17 of the High Court Rules. So far as mandamus is concerned, he was outside the two-month period stipulated by O 55 r 30 of those Rules. 17 On 11 June 2003, Hayne J ordered that further proceedings in the application for an order nisi for writs of mandamus, prohibition and certiorari be remitted to this Court in its South Australian District Registry, where it became proceeding S 734 of 2003. 18 On 2 December 2003, Selway J made orders in relation to the further conduct of proceeding S 734 of 2003, including an order that the applicant file and serve a notice of motion seeking an extension of time. On 12 March 2004, Mansfield J made orders in relation to the further conduct of proceeding S 734 of 2003, including an order extending the time for the applicant to file and serve that notice of motion. On 18 March 2004, the applicant filed a notice of motion seeking the extension of time in which to commence that proceeding. 19 On 26 March 2004, Mansfield J considered that the extension of time should be refused; that for this reason, the relief claimed in the nature of certiorari and mandamus was not available; that the claim for prohibitory orders was therefore 'pointless'; and that 'the application itself' should therefore be dismissed. His Honour ordered that the '[a]pplication' be dismissed with costs. His Honour gave two reasons. One was that there was no material upon which he was satisfied that there was any arguable basis on which the applicant could succeed in his application for the prerogative relief sought. The second was that the applicant's delay was not satisfactorily explained. 20 Although Mansfield J dismissed the '[a]pplication', his order of dismissal, made as it was on the basis of the refusal of an extension of time, was interlocutory in nature: see A 184 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 543 at [27]-[29]. I note that in the case just cited, Lander J questioned whether the time limits fixed in O 55 rr 17 and 30 of the High Court Rules are applicable after a remitter to this Court, and whether an order in the nature of prohibition is pointless if orders in the nature of certiorari and mandamus can not be made: at [34]-[65]. (His Honour referred to the observations which Dowsett J and he had made on this matter in Applicant S 422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 at [29].) In the present case, as in that before Lander J, the correctness of the position taken by Mansfield J was not challenged. 21 On 8 April 2004, the applicant filed an application in the FMCA (proceeding SZ 1054 of 2004). The application stated that it was made under s 39B of the Judiciary Actand s 475A of the Migration Act. Section 475A does not confer jurisdiction on the FMCA. Section 39B confers jurisdiction on this Court, while s 483A of the Migration Act provides that subject to that Act and despite any other law, the FMCA has the same jurisdiction as this Court in relation to a matter arising under the Migration Act. Division 2 (ss 475-484) of the Migration Act is not to be taken to limit the scope or operation of s 474: s 475 Therefore it was s 474 which determined the fate of the proceeding before the FMCA just as it would have determined the fate of that proceeding before this Court. 22 On 13 July 2004, the Minister filed a notice of motion seeking summary dismissal of the FMCA proceeding as an abuse of process. On 8 September 2004, the Minister filed a notice of objection to competency in proceeding SZ 1054 of 2004, which stated the following ground: 'The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal ("the Tribunal decision") on 19 February 2002 and handed down on 14 March 2002 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal decision.' 23 The learned Federal Magistrate had before him both the notice of motion and the notice of objection to competency, but observed that, for reasons he gave, it was not necessary for him to deal with the notice of motion. In relation to the notice of objection to competency, his Honour did not discuss s 477(1A) of the Migration Act but proceeded directly to the well trodden area of the privative clause provision found in s 474 of that Act, as explained in S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476. His Honour implicitly posed the question for himself whether there was an arguable case of jurisdictional error which would deprive the purported decision of the RRT of the status of 'a decision … made under [the Migration] Act' within s 474's definition of 'privative clause decision'. (at [6]) 24 Driver FM noted that the issue before him was whether he had jurisdiction to entertain the application further. He set out the following extract from the reasons of Mansfield J refusing the extension of time in proceeding S734 of 2003: 'Nothing has been put which could indicate jurisdictional error on the part of the Tribunal in reaching [its] conclusions. It is necessary for jurisdictional error to be demonstrated before the applicant could establish an entitlement to the orders which he seeks: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The grounds of complaint in the affidavit in support of the application are general in nature. Despite those asserted grounds, counsel today has not sought to support any of them by reference to any part of the reasons for decision of the Tribunal. No additional material has been adduced to support any of them. Accordingly, I am not satisfied that there is any prospect of the applicant succeeding in his application even if an extension of time were granted.'

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