SZFXH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 27 May 2005, Raphael FM dismissed as incompetent the application filed on 16 March 2005 by the applicant seeking review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 9 December 2002, which affirmed the decision of a ministerial delegate not to grant the applicant a protection visa. The applicant now seeks leave to appeal from the Federal Magistrate's orders and reasons for judgment. 2 The orders made by the Federal Magistrate in disposing of the application were as follows: '1. The substantive proceedings are dismissed as incompetent. 2. The applicant not be permitted to institute any proceedings in this court seeking review of a decision handed down by the Refugee Review Tribunal on 9 December 2002, without first obtaining the leave of this court. 3. The applicant pay the respondent's costs of the proceedings and of this notice of motion, which I assess in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.'

3 Formally placed before the Federal Magistrate was a notice of motion filed by the respondent Minister seeking summary dismissal of the application under r 13.10 of the Federal Magistrates Court Rules 2001 (Cth). That rule provides that the Court may order that a proceeding be stayed or dismissed generally if it appears to the Court that either: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court. The Minister's motion sought summary dismissal of the application under paragraphs (b) and (c) of r 13.10. Alternatively the Minister sought dismissal of the application as incompetent, since it was a privative clause decision as defined in s 474 of the Migration Act 1958 (Cth) ('the Act'), review of which was being sought in the Federal Magistrates Court after the expiry of the 28-day time limit imposed by s 477 of the Act. 4 The Minister contended before the Federal Magistrate that the application was groundless and emphasised that the applicant had already applied unsuccessfully for judicial review of the same Tribunal decision before the Federal Magistrates Court, the Federal Court and the High Court. Driver FM dismissed the applicant's first application for review on 24 July 2003. His Honour held that none of the applicant's claims had any substance in the context of the matter and furthermore, that no jurisdictional error was apparent on the face of the record of the Tribunal decision. His Honour determined that the Tribunal's decision of 9 December 2002 was a privative clause decision. Tamberlin J dismissed an appeal from Driver FM's judgment on 12 December 2003, finding that the Tribunal had not misunderstood the applicant's claims, that there was nothing to indicate an absence of procedural fairness, and furthermore that there was no evidence to support the applicant's contention that the Tribunal ignored his documents. Special leave to appeal from Tamberlin J's reasons for judgment was rejected by McHugh and Heydon JJ on 3 March 2005. 5 On the basis of the foregoing, the Minister sought summary dismissal of the application made to the Federal Magistrate pursuant to r 13.10, on the basis that the application was either an abuse of process, and that the doctrines of res judicata, issue estoppel and/or Anshun estoppel were in any event applicable to the circumstances. Although the Federal Magistrate said at [3] of his reasons for judgment '[i]t seems to me quite clear that these proceedings are doomed to failure by virtue of the doctrine of res judicata', his Honour does not appear to have dismissed the application on that basis. 6 Instead, his Honour proceeded to briefly outline authority for the principle that it is for the applicant, rather than the Tribunal, to prove the applicant's case. This was done by way of rejection of the applicant's contention that each of the three prior judicial considerations of the 9 December 2002 Tribunal decision had erred by failing to obtain for themselves a copy of the transcript of the Tribunal hearing. 7 His Honour then concluded at [5] that since three separate findings had been made already that the decision about which the applicant complains did not involve in effect jurisdictional complaints, that decision was a 'privative clause decision' for the purposes of s 474. His Honour dismissed the application as incompetent by reason of the applicant's failure to lodge the application within 28 days of the Tribunal handing down its reasons for decision. 8 The issue that arises now for consideration is whether or not the Federal Magistrate's judgment was interlocutory or final in nature. 9 The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225 at 230 (McHugh, Kirby and Callinan JJ); Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 at 427 (Bowen CJ, Lockhart and Sheppard JJ). It is clear that a summary dismissal of an action on the grounds that the action is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action is an interlocutory judgment: Re Luck (2003) 203 ALR 1 at 4 (McHugh ACJ, Gummow and Heydon JJ); Hall v Nominal Defendant (1966) 117 CLR 423 at 440 (per Taylor J). The Minister drew my attention to two recent authorities of this Court dealing with applications dismissed for incompetency pursuant to s 477 of the Act. 10 In SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283, the applicant appealed from the dismissal of his application for review by a Federal Magistrate on the ground that it was incompetent under s 477. In reaching that conclusion, the Federal Magistrate considered the appellant's substantive claims and determined that the Tribunal's decision was not vitiated by jurisdictional error, thereby rendering that decision a privative clause decision and the application incompetent by virtue of its having been brought out of the time specified in s 477, as is the case here. Madgwick J considered the brief submissions put by the Minister and concluded that the Federal Magistrate's decision was interlocutory, rather than final, for the following reasons (at [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.'