SZECK v Minister for Immigration & Multicultural & Indigenous Affairs

Madgwick J: 1 This case concerns proceedings instituted in this Court by way of a purported notice of appeal from a judgment of the Federal Magistrates Court of Australia given by Federal Magistrate Nicholls on 13 December 2004. The learned Federal Magistrate made orders in the following terms: '(1) That in upholding the respondent's notice of objection to competency, the application is dismissed. (2) The applicant to pay the respondent's costs … .' 2 His Honour had been dealing with an application filed in the Federal Magistrates Court on 30 July 2004 seeking judicial review of an adverse decision of the Refugee Review Tribunal ('the Tribunal') made on 7 April 2003 and notified, I assume from the reasons, by letter dated 10 April 2003. The learned Federal Magistrate took the view that, as there was no merit in the claims that the Tribunal Member had evinced any jurisdictional error, the application to the Court was in respect of a privative clause decision and was therefore caught by the requirement that an application for review must be made within 28 days, as provided by s 477 of the Migration Act 1958 (Cth) ('the Act'). 3 The question arises as to whether, in relation to such a judgment, leave to appeal to this Court is required and I will return to this question. The respondent does not object to the purported notice of appeal being treated as an application for leave to appeal if leave is required. 4 The Tribunal Member disbelieved the appellant for reasons given. The Tribunal member concluded that the appellant 'did not, and does not, have a genuine fear of persecution for a Convention-related persecution.' In any case, he considered that the appellant would reasonably be able to relocate within his home country. The appellant's claim had been that he was at risk of political persecution either from Awami League supporters or from Jamaat-e-Islami political supporters, despite the fact that the political party for which he had evinced, in a very small way, some support, the Bangladeshi National Party, was elected to power in October 2001 and was governing in coalition with, among other parties, Jamaat-e-Islami. 5 The Federal Magistrate considered first a claim that the Tribunal was actually or ostensibly biased and rejected these claims as unsupported by particulars nor by anything in the way of argument. The appellant's suggestion was that, because the Tribunal had disbelieved him when he had told the truth, the Tribunal must have been biased. There was clearly no substance in the assertion of actual or ostensible bias, as his Honour found. 6 The other ground raised by the appellant was that the Tribunal had failed to take 'a fresh look' at his case and, presumably, had uncritically adopted the views of the respondent's delegate. However, it is quite clear that the Tribunal Member considered the matter independently for himself and indeed relied on matters that were not, and could not have been, before the delegate. 7 There was also an assertion that the Tribunal failed to take into account relevant legal issues. However, as his Honour observed, this matter was not particularised and: '… to the extent that this may be an attempt to argue a general failure to take into account relevant considerations, there is nothing before me to support this allegation. The Tribunal dealt with the applicant's case as presented and dealt with each of his claims.' 8 In the result, his Honour concluded that the appellant: '… has not raised matters nor is there anything before me to show any error on the part of the Tribunal, let alone jurisdictional error.' 9 On that basis, as I have indicated, his Honour found that the appellant was out of time to apply to the Court in relation to a privative clause decision and, consequently, the objection to competency was valid. 10 The grounds raised in the notice of appeal to this Court are as follows: '2. The [Tribunal] made error of law and failed to exercise the proper procedure in relation to make decision on my protection visa review application.' 11 I interpolate that nothing has been shown to indicate that this is correct, nor that any such error or failure in any event sounds in jurisdictional error. '3. The Hon Federal Magistrate Court decision is not correct either. The Court has not considered all the legal issues that are applicable to applicant's matter. As such the applicant has been denied natural justice by the [Tribunal] and the [Federal Magistrates] Court.' 12 To the extent that this is comprehensible, there is no basis for it. '4. The [Tribunal] did not consider the updated country information of Bangladesh and did not carefully deal with a number of important legal issues including the "internal relocation" at the time of their decision. The applicant believe that Tribunal has not acted in accordance with the decisions of the United Nations Convention 1951 … .' 13 This either refers to factual matters or asserts legal error without indicating in any way, shape or form what they might be, and I discern none. '5. The applicant's review application to the [Tribunal] was affected by prejudice and biasness.' 14 In my opinion, his Honour was perfectly correct for the reasons that he gave. 15 Lately, the appellant has filed an 'applicant's outline of submission'. He rehashes the case put to Nicholls FM to no greater effect than before his Honour and seeks to raise two other matters. The first is that he complains, although he had a Bengali interpreter, that the hearing was 'all through conducted' without an interpreter as the Tribunal Member thought his English was 'functional to communicate'. The appellant complains that he could not really understand English properly while under pressure and missed 'lots of crucial points during the hearing and misunderstood many questions that [he] was asked'. In this way, he says, he was denied a right to be heard. 16 The Tribunal Member included in his reasons for decision the following observation: 'Much of the two-hour hearing was conducted without interpretation because the applicant has good English - I have no doubt that we understood each other well at those times.' 17 My own observation of the appellant here is that he speaks perfectly good English for everyday purposes and I have no reason to doubt the validity of what the Tribunal Member has said. In any case, there is no evidence placed before me to support the complaint made in submissions. If any attempt to do so were to be made, it would necessitate the respondent investigating the matter and properly calling evidence, for example, producing a tape and transcript of the hearing before the Tribunal Member. The proceedings were entirely conducted before the Federal Magistrate without this complaint having surfaced and, on the material before me, it has no substance. 18 In any case, for discretionary reasons I would refuse leave to the appellant to raise it so late and unsupported. 19 The second fresh matter refers to a complaint about s 424A of the Act and a supposed failure to give the appellant country information. Again, there is no evidentiary basis shown for this and the proceeding was entirely conducted before the Federal Magistrates Court without that complaint having surfaced either. The complaint, in any case, appears to relate entirely to a class of information which Full Court authority in this Court, in the shape of NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264, indicates is within the proviso to s 424A as not having to be provided to an applicant for review by the Tribunal. Accordingly, that matter also appears on the material before me to be quite without merit. In any case, for similar discretionary reasons, I would refuse leave to permit it to be raised late. 20 Mr Johnson, for the Minister, has submitted that authority in this Court supports the position that the judgment of the Federal Magistrates Court was interlocutory. He refers to a decision of my own, SZARK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1458, and to a decision of Jacobson J, SZDWE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1498, in which, without discussion or apparently much argument, we individually took the view that a judgment in a case such as this was interlocutory and would require leave to appeal. In the context of an earlier version of the Act, the Full Court took a similar view in relation to a case where it was sought to challenge a decision of the Minister not to exercise or to consider the exercise of his power under s 48B or s 417 of the Act; s 476(2) of the Act, as it then stood, excluded the jurisdiction of the Federal Court in relation to such a decision (see NAGM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395). The Court said it came, without the benefit of any legal argument, to a similar point of view: The better view seems to be that an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not finally dispose of the rights of the parties.' 21 The Court referred to dicta in Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694 at [3] - [8]. 22 Finally, counsel says that, in the decision of Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 dicta, clearly 'point to' a similar view held by his Honour. 23 There is a theoretical possibility that some other proceeding might somewhere be launched. (This is not a case in which I should provide any hints, should the appellant be minded to venture further with litigation to vindicate his contention that the decision of the Tribunal was jurisdictionally tainted by fundamental error.) Even if some issue estoppel might arise as a result of the learned Magistrate's consideration of the legal issues (which were necessary to his decision), so far as I can see, without the benefit of contrary argument, that does not convert his Honour's judgment into a final one. Estoppels need not be raised or pleaded and, if they are not, it is not open to another court considering the matter to rely on them. Of its own motion, the legal effect of his Honour's order was not to convert a jurisdictional complaint into res judicata. So I think the better view is that leave is required. 24 It is abundantly clear from what I have said that, in my opinion, there is no reasonably arguable legal case available to the applicant and, on the assumption that leave to appeal is required, I would refuse it as futile. If, in fact, leave is not required, I would dismiss the appeal also for the reasons previously given. 25 The application to the Court is therefore dismissed with costs, assessed in the sum of $4,000. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.