SZGAP v Minister for Immigration & Multicultural &

SZGAP v Minister for Immigration & Multicultural & - [2005] FCA 1785 - FCA 1999 case summary — Zoe

[5]

introduction 1 I respectfully adopt what was said by Hely J in SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656 at [17]: 'Section 477(1A) [of the Migration Act 1958 (Cth) ('the Act')] is, in the light of s 477(2), a matter which goes to the jurisdiction of the Federal Magistrates Court. However, given the decision in Plaintiff S157/2002 [Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476], I am unable to perceive what practical benefit is achieved by the filing of a Notice of Objection to Competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.' The taking of the objection as to competency seems to have served only the undesirable purpose of generating futile disputation over the question whether the upholding of the objection and consequential dismissal of the proceeding in a particular case is a final or interlocutory decision for the purpose of appeal to this Court. 2 By an application filed on 6 September 2005, the applicant applies for leave to appeal from a judgment of Federal Magistrate Scarlett given on 22 June 2005 (SZGAP v Minister for Immigration [2005] FMCA 892). The applicant also applies for an extension of time in which to seek leave to appeal. 3 In the Federal Magistrates Court ('FMCA'), the applicant filed an application on 6 April 2005, seeking review of a decision of the Refugee Review Tribunal ('the Tribunal') which was handed down on 16 July 1999. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (respectively, 'the Delegate' and 'the Minister') made on 10 November 1998 not to grant the applicant a protection visa. 4 On 18 April 2005, the Minister filed in the FMCA a notice of objection to competency, on the ground that, because the application was filed outside the 28 day time limit specified by s 477(1A) of the Act, the FMCA had no jurisdiction to hear the application. 5 Section 477(1A) of the Act provided: 'An application to the Federal Magistrates Court under section 483A for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.' (emphasis added) 6 In Plaintiff S157/2002 it was held that a decision of the Tribunal tainted by jurisdictional error is not a 'privative clause decision'. Accordingly, the question of jurisdictional error was raised by the objection to competency in the FMCA.

[6]

LEGISLATIVE HISTORY 7 At my request the parties filed written submissions concerning the jurisdiction of the FMCA in respect of a decision of the Tribunal made before the FMCA was created, and concerning the applicability to such a decision of the 28-day time limit imposed by s 477(1)A of the Act, in circumstances in which that time must have expired before the right of application to the FMCA to which it related could have been exercised. 8 It is noteworthy that Branson J followed a generally similar course in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368, a decision of which I was not aware until the parties' submissions were received. 9 At the time of the Tribunal's decision on 16 July 1999, the FMCA did not exist. It came into existence on the commencement of the Federal Magistrates Act 1999 on 23 December 1999. The FMCA did not acquire jurisdiction in respect of decisions under the Migration Act 1958 (Cth) ('the Act') until 2 October 2001, when the relevant items of Schedules 1 and 3 to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) ('the Jurisdiction Amendment Act') commenced. 10 Immediately before the date last mentioned, Part 8 (ss 474-486) of the Act conferred jurisdiction on this Court with respect to 'judicially-reviewable decisions', which included decisions of the Tribunal, subject to a non-extendable 28-day limitation period imposed by the then s 478 (see [15] below). At that time the Court did not have jurisdiction in respect of judicially-reviewable decisions other than the jurisdiction provided by Part 8 (or by s 44 of the Judiciary Act 1903 (Cth) ('the Judiciary Act')), notwithstanding any other law, including s 39B of the Judiciary Act: see the then s 485 of the Act. The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ('the Migration Judicial Review Act'), which also commenced on 2 October 2001, repealed Part 8 and replaced it with a new Part 8 (ss 474-484): see Item 7 in Schedule 1 to the Migration Judicial Review Act. Central to the operation of the new Part 8 was the 'privative clause' contained in s 474. As noted above, a decision of the Tribunal affected by jurisdictional error is not a privative clause decision, and the new Part 8 did not exclude this Court's jurisdiction under s 39B(1) of the Judiciary Act in respect of decisions purportedly made by the Tribunal under the Act, but not in law so made because of jurisdictional error. 11 Item 16 of Schedule 3 to the Jurisdiction Amendment Act inserted s 483A into the Act. Section 483A provides: 'Subject to this Act and despite any other law, the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under this Act.' At time of the decision of the FMCA on 22 June 2005, this Court had jurisdiction under s 39B(1) of the Judiciary Act in respect of a purported decision of the Tribunal if that decision was tainted by jurisdictional error. Item 8(2)(b) of Schedule 1 to the Migration Judicial Review Act provided that the Act as amended by that Schedule applied in respect of judicial review of a decision under the Act where the decision was made before the commencement of Schedule 1, and, as at that commencement, an application for judicial review of the decision had not been lodged. In the present case the Tribunal's decision was made before that commencement (on 2 October 2001) and an application for judicial review of it had not been lodged. 12 Subsection 477(1) of the Act provided that an application to this Court under s 39B of the Judiciary Act in respect of a privative clause decision must be made within 28 days of the notification of the decision, and subs 477(2) provided, in effect, that the Court must not extend that time. But the time limit did not apply in a case of jurisdictional error. Subsection (1A), which was inserted into s 477 by Item 8 of Schedule 3 to the Jurisdiction Amendment Act, provided that an application to the FMCA 'under section 483A' in respect of a privative clause decision must be made to the FMCA within 28 days of notification of the decision, and subs (2) of s 477, as then amended by Items 9 and 10 of the same Schedule, provided that the FMCA must not, in effect, extend that time. Again, however, these provisions apply only if the Tribunal's decision is a privative clause decision: it is not that if it is tainted by jurisdictional error. 13 Item 18 of Schedule 3 to the Jurisdiction Amendment Act provides: 'The amendments of the Migration Act 1958 made by this Schedule apply in relation to applications made under s 477 of that Act after the commencement of this item.' The drafter of Item 18 must have had in mind an application to the FMCA 'under section s 483A', an expression used in the new subs (1A) of s 477, including such an application which related to a Tribunal decision made before 2 October 2001, such as the Tribunal's decision in the present case. 14 Neither party suggested that the non-extendable 28-day time limit imposed by s 477(1) of the Act on applications to this Court did not apply to a Tribunal decision made, as in the present case, more than 28 days before 2 October 2001, anomalous though that proposition may seem. 15 In my opinion it is s 477(1) rather than s 477(1A) which applies here, even though the application was made to the FMCA. Subsection (1A) of s 477 can apply sensibly only where the Tribunal's decision was made after 2 October 2001, that is to say, after jurisdiction was conferred on the FMCA. Prior to that date this Court had jurisdiction in respect of Tribunal decisions, albeit under the former Part 8 of the Act and not under s 39B of the Judiciary Act. Where the Tribunal's decision was made prior to that date, such as on 16 July 1999 as in the present case, there was already a non-extendable 28-day time constraint on applications to this Court for review under the then Part 8: see the then s 478 of the Act. The new s 483A picks up this Court's jurisdiction, including the non-extendable 28-day time limit burdening it by reason of s 477(1) and (2) of the Act. There is no injustice in this to an applicant placed as the present applicant was, since a non-extendable 28 day time limit would have applied to her if she had wished to apply to this Court back in July 1999 for review of the Tribunal's decision under the then Part 8. Of course, under both subs (1) and (1A) of s 477, it is only jurisdictional error that can save an applicant from the effect of the limitation period. 16 In the result, on 22 June 2005, the FMCA had jurisdiction to grant relief under s 39B of the Judiciary Act, by reason of s 483A of the Act and notwithstanding s 477(1) of the Act, if the Tribunal's decision was not a privative clause decision because it was tainted by jurisdictional error.

[8]

The FMCA'S decision 20 In the FMCA, the applicant, who was not represented and was in immigration detention, filed her application for review on 6 April 2005. The 28-dayperiod had expired on 13 August 1999, so the applicant was some four years and eight months late. The Minister filed a notice of objection to competency on 18 April 2005 relying on the 28-day time limit, imposed by s 477(1A) of the Act. 21 The grounds of review stated in an amended application which the applicant filed in the FMCA on 30 May 2005 were: '1. I am a citizen of China who claims to have a well founded fear of persecution for reasons of my religious belief under the Refugee Convention as amended by the Refugee Protocol. 2. The Tribunal failed to take relevant consideration in to account to exercising it's [sic] power to determine the applicant as a refugee. 3. The Tribunal failed to consider and properly exercise its discretionary power provided under s427 of the Migration Act 1958. 4. The Tribunal was in error of law in these findings that were open to it from the facts and evidence.' The hearing in the FMCA took place on 8 June 2005, and judgment was given on 22 June 2005 (SZGAP v Minister for Immigration [2005] FMCA 892). 22 The Federal Magistrate considered each of the grounds of review, and concluded that none of them was made out. Mindful of the fact that the applicant was unrepresented, his Honour also considered the Tribunal's decision independently of the grounds stated, to satisfy himself as to whether there was jurisdictional error. He concluded (at [12]): 'In my view, both from the Applicant's submissions and evidence and from the independent investigation of the decision which I have undertaken, there is no reviewable error.' 23 Being satisfied that the Tribunal's decision was not infected by jurisdictional error, his Honour concluded that the decision was a privative clause decision, to which the 28-day time limit provided for in s 477(1A) of the Act applied, and that therefore the Minister's objection to competency was 'appropriate' (at [14]), and that the FMCA did not have jurisdiction to hear the application. (As noted at [15], the better view is that it is subs (1) rather than subs (1A) of s 477 that applies in the circumstances of the present case.) 24 The relevant orders made by the Federal Magistrate on 22 June 2005 were: '1. That the Application is dismissed. 2. That the application is not competent as the Court has no jurisdiction.' The applicant was not present when judgment was delivered on 22 June 2005. His Honour noted that he had been informed that she was ill and unable to attend Court. He stayed the operation of the dismissal for seven days, that is to say, until 29 June 2005.

[9]

Subsequent procedural events 25 It appears that on 18 July 2005, the applicant attempted to file by facsimile a notice of appeal in this Court. It will be noted that if the Federal Magistrate's order of dismissal was a final judgment, the notice of appeal would have been filed within the 21‑day period fixed by O 52 r 15 of the Federal Court Rules, after allowance is made for the stay until 29 June 2005. 26 On 19 July 2005, an officer in the Registry of the Court wrote to the applicant advising her that her notice of appeal could not be processed because the FMCA decision was interlocutory, because she 'did not appear on [her] hearing day'. The letter advised the applicant that she would have to file an 'interlocutory application' in the FMCA to set aside that Court's decision. In stating that the applicant had not attended the hearing before the Federal Magistrate the letter was incorrect. She had attended the hearing on 8 June 2005: it was on the occasion of delivery of judgment on 22 June 2005 that she was absent. 27 On 25 July 2005, no doubt pursuant to the Registry officer's advice, the applicant filed an 'application' and affidavit in the FMCA. On 19 August 2005, Michaela Byers, the applicant's present solicitor, filed a notice of appearance in that Court. An amended application was subsequently filed, which appeared to seek a fresh review of the Tribunal's decision. However, submissions filed on behalf of the applicant on 26 August 2005 made it clear that the she was seeking to have his Honour's orders of 22 June 2005 set aside, pursuant to Rule 16.05(2) of the Federal Magistrates Court Rules. Rule 16.05(2) enables the FMCA to set aside its judgment or order if, relevantly, the order was made in the absence of a party or was interlocutory. The applicant's submissions asserted that his Honour's orders were made in the absence of the applicant and were interlocutory. 28 On 1 September 2005, the Federal Magistrate heard the application to set aside and dismissed it on the same day (SZGAP v Minister for Immigration (No 2) [2005] FMCA 1283). In his reasons for judgment, his Honour confirmed that the hearing of the substantive application had taken place on 8 June 2005, when the applicant had been present. He correctly observed that psychiatric evidence explaining the applicant's absence from the handing down of the decision did not assist her. He considered that the 'appropriate course' was for the applicant to exercise 'her right of appeal' to this Court (at [7]). His Honour did not (otherwise) refer to the question whether his orders of 22 June 2005 were interlocutory. 29 Following that decision, on 6 September 2005 the applicant filed in this Court her application for leave to appeal from the original decision of the FMCA, and for an extension of time, together with an affidavit sworn by her solicitor.

[15]

The authorities relied upon by the Minister 37 The Minister refers to my decision in SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 ('SZDGN') and Crennan J's decision in MZWJA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 492 ('MZWJA'). However, neither of those cases concerned circumstances where, as here, a Federal Magistrate has reviewed a Tribunal decision for the first time, found it to be free of jurisdictional error and therefore a privative clause decision, and on that basis concluded that the application is made incompetent by s 477(1A) of the Act. 38 In SZDGN, the applicant applied for an extension of time in which to file and serve a notice of appeal from a decision of Driver FM, who had 'dismissed summarily as incompetent' his application for judicial review. The respondent argued that his Honour's decision was interlocutory and that leave to appeal was therefore required. 39 At [4] - [7] I said: 'Did Driver FM finally determine that question? [whether the Tribunal's decision was liable to be set aside on the grounds relied on by the applicant in the FMCA proceeding.] 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. 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. 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). 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.' (emphasis added) 40 The earlier adjudication by Mansfield J distinguished SZDGN from the present case. Moreover, my comments relating to the issue of whether leave to appeal was required in the case of dismissal on the ground of incompetence were obiter dicta for the following reason. The applicant's (purported) notice of appeal was filed out of time and I decided that it was 'strictly unnecessary' to deal with the question of leave to appeal, because I could deal with the case (see [12]): '…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 only needs an extension of time.' (emphasis added) 41 In MZWJA, a Registrar of the FMCA ordered the applicant to file and serve an amended application with particulars. This order was not complied with, and the respondent sought summary dismissal pursuant to Rule 13.03 of the Federal Magistrates Court Rules for the applicant's failure to comply with an order of the Court. 42 Riethmuller FM dismissed the application (MZJWA v Minister for Immigration [2005] FMCA 380), saying (at [6]): 'In the circumstances it is difficult to see why the matter should be allowed to continue given the extended noncompliance and the lengthy delay. I also see very difficult hurdles for the applicant in the substantive matter if the matter did proceed…' (emphasis added)

[16]

Later, his Honour said (at [10]): 'In the circumstances I am not able to identify any prima facie case or arguable ground that the applicant has to pursue. The applicant has not complied with any directions. The length of time between the original decision and the current proceedings is large. Having considered all of these factors, I find that the appropriate course is to dismiss the application.' 43 It seems plain that the reference to the absence of 'any prima facie case' or 'arguable ground that the applicant has to pursue' was a reference to one of several discretionary matters which his Honour took into account in deciding whether to exercise the power given by Rule 13.03. Crennan J characterised the decision as a 'summary dismissal', held that leave to appeal was required, and refused leave. 44 Dismissal for non-compliance with a court order is plainly interlocutory and MZWJA is therefore also distinguishable from the present case. 45 The Minister also relies on NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 ('NACA'), NAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 608 ('NAJC') and Marshall v Soedarjanto [2003] FCA 797 ('Marshall v Soedarjanto'). 46 In NACA, the application was dismissed pursuant to O 32 r 2 of the Federal Court Rules for the absence of the applicant at the hearing (NACA v Minister for Immigration [2003] FMCA 125). Raphael FM noted that the applicant had not raised a jurisdictional error. On 6 May 2003, his Honour dismissed a motion to set aside the order of dismissal, saying that the applicant's non-attendance was not explained and that there was no arguable case of jurisdictional error (NACA v Minister for Immigration (No 2) [2005] FMCA 234). 47 The applicant then filed in this Court a notice of appeal against the decision of 6 May 2003, and the Minister moved to have the appeal dismissed as incompetent. The applicant filed a notice of motion, which Hely J treated as a motion seeking leave to appeal and an extension of time in which to seek that leave. Hely J pointed out that 'the questions which I have to decide are whether the judgment of Federal Magistrate Raphael given on 6 May 2003 is interlocutory, and, if so, whether leave to appeal should be granted…' (at [9]). 48 Hely J decided that the Federal Magistrate's decision was interlocutory, 'notwithstanding that in practice it might be extremely difficult for the appellant to successfully mount a second application to reopen the case' (at [15]). The decision which Hely J thus characterised as interlocutory was a decision refusing to set aside a previous order, not, as in the present case, a decision to uphold an objection to competency. That a refusal to set aside a previous order is interlocutory was, his Honour said, established by Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246. His Honour found a further support for the proposition in Dai v Telecommunications Commission Ombudsman [2000] FCA 717 (FC) and NAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 717. 49 In NAJC, Wilcox J had dismissed an application under O 32 r 2 of the Federal Court Rules, on the basis of the applicant's non-attendance at the hearing before his Honour on 11 April 2003. The applicant moved pursuant to O 35 r 7(2)(a) for an order setting aside that dismissal, and his Honour dismissed the motion on 15 May 2003 (NAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 547). Wilcox J said that he would have been disposed to set aside the dismissal order if satisfied there was an arguable case of jurisdictional error by the Tribunal, but that he was not so satisfied. 50 The applicant then applied under O 52 r 15(2) for an extension of time in which to appeal against Wilcox J's order of dismissal of 11 April 2003. Jacobson J suggested that it may have been more appropriate to apply for an extension of time and leave to appeal in respect of Wilcox J's order of 15 May 2003, but proceeded to deal with the application because both kinds of application raised 'similar considerations' (at [5]). 51 Jacobson J may have dealt with the matter on the basis, favourable to the applicant, that an extension of time was all that was required, since he ordered that '[t]he application for extension of time in which to file a notice of appeal be dismissed.' His Honour's reason was that 'no arguable case of jurisdictional error was shown' (at [15]). In my view, both of Wilcox J's decisions (on 11 April and 15 May) were clearly interlocutory, and neither upheld an objection to competency. NAJC is therefore also distinguishable. 52 In Marshall v Soedarjanto, Marshall was one of four respondents and Soedarjanto was the applicant in a proceeding in the FMCA. The Federal Magistrate dismissed Marshall's motion for security for costs in the mistaken belief that a Judge of this Court had already ordered security prior to the transfer of the proceeding to the FMCA. In fact, the order for security for costs had been made in a different (albeit factually related) proceeding. Marshall sought leave to appeal from the dismissal of his motion for security. 53 Lee J granted leave to appeal, heard the appeal instanter, allowed the appeal, set aside the order of dismissal, and ordered that the motion for security be redetermined. Correctly, there was no dispute before Lee J that the Federal Magistrate's dismissal of the motion for security for costs was interlocutory. 54 The respondent also cites SZFXH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1140. In that case, as in SZDGN, the Tribunal decision had already been the subject of an unsuccessful judicial review application (in fact, in the FMCA, this Court and the High Court). Relying on those decisions, Raphael FM concluded (SZFXH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 746 at [5]), without considering the merits: 'As things stand at the present, there have been findings against this applicant that the decision he complains about was not made in jurisdictional error. In those circumstances, section 477(1) of the Migration Act would apply, and the applicant was well outside the period of 28 days from the handing down of that decision when he filed this application in Court. For that reason the application in incompetent in any event.' 55 In the course of dismissing an application for leave to appeal, Conti J observed that by relying upon the three earlier Court decisions, Raphael FM 'did not substantively determine whether or not the … Tribunal decision was vitiated by jurisdictional error' (at [12]). 56 None of the cases cited by the Minister decide that the dismissal of a proceeding as incompetent is interlocutory where the conclusion of incompetency was necessarily preceded by a decision on the merits that the Tribunal's decision is free from jurisdictional error and is therefore a privative clause decision.

[17]

Other authorities not referred to by the parties 57 In SZARK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1458 ('SZARK'), Madgwick J treated a notice of appeal as an application for leave to appeal from a judgment of the FMCA (SZARK v Minister for Immigration [2004] FMCA 465). In the FMCA, Driver FM had held that the Tribunal decision was not tainted by jurisdictional error; that it was therefore a privative clause decision; and that because the application was filed well outside the twenty-eight day time limit imposed by s 477(1A), the Minister's objection to competency should be upheld. 58 In this Court, the Minister objected to the competency of the appeal. Madgwick J upheld that objection and dismissed the proceeding, no doubt because he thought that there was no right of appeal because Driver FM's decision was interlocutory. His Honour also said that he saw no arguable contention of error by the Federal Magistrate, with the result that it would be futile to grant leave to appeal (at [9]). 59 In SZDWE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1498 ('SZDWE'), a Federal Magistrate concluded that nothing filed or said by the applicant showed jurisdictional error by the Tribunal; that the Tribunal decision was therefore a privative clause decision; and that the Minister's objection to competency must be upheld on the ground that the application for review was not filed within twenty-eight days of the notification of the Tribunal decision (SZDWE v Minister for Immigration [2004] FMCA 651). Jacobson J treated the applicant's notice of appeal as an application for leave to appeal, 'because the orders and judgment of the Federal Magistrate are interlocutory' (at [3]). There is no further discussion of the issue. 60 In SZECK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 283 ('SZECK'), the 'appellant' filed a notice of appeal from a judgment of the FMCA (SZECK v Minister for Immigration [2004] FMCA 1075). In the FMCA, the Minister had filed a notice of objection to competency, and Nicholls FM had said (at [4]): 'In [the Minister's] submissions, the respondent does not appear to press the objection to competency but appears to seek dismissal of the application on the merits. At the hearing before me today Mr Leerdam, for the respondent Minister, advised that the Minister would press the issue of the notice which in any event will ultimately still require me to look at the substantive merits of this application.' (my emphasis)

[18]

Later, his Honour noted (at [5]) that the decision whether to uphold the notice of objection to competency: '…requires an examination of the application to the court and any substantive issues raised in the proceedings to determine whether the Tribunal decision is effected [sic] by jurisdictional error.' 61 Nicholls FM then dealt with the question of whether any of the grounds of review relied on were made out. He concluded that they were not; that the applicant had not shown any jurisdictional error; and that the Tribunal's decision was therefore a privative clause decision, review of which was precluded by the time limit contained in s 477(1A). 62 In this Court, Madgwick J considered in some detail the question whether the Federal Magistrate's decision was interlocutory or final. His Honour observed that it was 'without discussion or apparently much argument' that the judges in SZARK and SZDWE had concluded that the respective Federal Magistrates' decisions were interlocutory. Madgwick J referred to the Full Court's decision in Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 ('Applicant NAGM of 2002'). In that case, the primary judge had dismissed the appellants' application for review of the Minister's decision not to consider exercising his powers under ss 48B and 417 of the Act, on the ground that s 476 excluded the jurisdiction of this Court in relation to such Ministerial decisions. The Full Court held (at [6]) that the primary judge's decision was interlocutory, stating: "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 necessarily finally dispose of the rights of the parties." (emphasis added) 63 The Full Court referred to Fifita v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1695 ('Fifita'), which was an appeal from a summary dismissal by Hely J of an application for review of a Migration Review Tribunal decision, on the ground that, since there was no evidence that the applicant had ever sought review by that Tribunal, there was no judicially reviewable decision (Fifita v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1304). Finn J, with whom Spender J agreed, thought that Hely J's decision was interlocutory, while Merkel J refrained from expressing a view on the issue. Because there was no effective argument on the issue of whether the decision at first instance was interlocutory, the Full Court considered the merits of the appeal, which it dismissed. 64 Having considered these authorities, Madgwick J concluded that the 'better view' was that a decision of a Federal Magistrate that a Tribunal decision is a privative clause decision, and that an application for review of it outside the time limit imposed by s 477(1A) of the Act is therefore incompetent, is interlocutory. At [23], his Honour said: 'There is a theoretical possibility that some other proceeding might somewhere be launched…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.'

[19]

However, against the possibility that leave to appeal was not required, his Honour noted that he would dismiss the appeal for the reasons for which he would not grant leave to appeal (at [24]). 65 In SZBDN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 656 ('SZBDN'), Hely J considered that he should follow Madgwick J in SZECK,because that decisionwas 'precisely in point' and there had been no effective legal argument before him on the issue. At [1] above, I adopted an observation made by his Honour. His Honour also considered that in the absence of an 'effective contradictor on the issue of whether the judgment appealed from is interlocutory in character', the preferable course (as taken by the Full Court in Fifita) was to consider the merits of the appeal, rather than to dismiss the proceeding on the 'claimed basis of incompetency' (at [17]). 66 In SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759, the appellants appealed from a decision of Scarlett FM delivered on 23 February 2005 (SZAQL v Minister for Immigration [2005] FMCA 240). On 21 May 2003, the appellants had filed in the FMCA an application for review of a decision of the Tribunal handed down on 10 February 2000. That application was well outside the 28-day time limit prescribed by s 477(1A) of the Act, and the respondent filed a notice of objection to competency. In order to know whether the time limit applied, it was necessary to know whether jurisdictional error infected the Tribunal's decision. Scarlett FM reviewed the Tribunal's decision and concluded that none of the grounds of review relied on were made out. Accordingly, his Honour concluded that the application before him was 'a privative clause matter' (at [41]), and ordered that the application be dismissed and that '[t]he Application [was] incompetent'. 67 The appellants then filed a notice of appeal in this Court. Before Branson J, the respondent Minister did not contend that the learned Federal Magistrate's decision was interlocutory, and her Honour's analysis of the issue is in the nature of obiter dicta. Her Honour thought that the Federal Magistrate's decision was final. Branson J referred to the fact that the appellants had not conceded in the FMCA that the Tribunal's decision was a privative clause decision. Her Honour observed that if they had, a dismissal of their application as not disclosing a reasonable cause of action would have been interlocutory, and a purported appeal from the dismissal would have been incompetent. As it was, however, her Honour said (at [5]-[6]): '…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 error as asserted by the appellants. […] 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".'

[21]

LEAVE TO APPEAL - EXTENSION OF TIME - PRINCIPLES 70 As previously noted, if the Federal Magistrate's decision was final, the applicant needs an extension of time in which to appeal because her notice of appeal was not filed within the 21-day period fixed by O 52 r 15(1), and if the Magistrate's decision was interlocutory, she needs both leave to appeal (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)) and an extension of time (SZDGN). 71 In the former case (O 52 r 15(1)) 'special reasons' justifying the extension of time must be shown: O 52 r 15(2). The dominant consideration is the aim of doing justice as between the parties. Ordinarily, the chief considerations are the extent of, and any explanation for, the untimeliness, and the arguability of the proposed grounds of appeal. 72 In the latter case (s 24(1A) and SZDGN), I see no reason why the same considerations should not apply in respect of the untimeliness aspect. In relation to the leave to appeal aspect, in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ('Décor v Dart') the Full Court considered as an 'appropriate litmus test' (at 399) the principles stated in Niemann v Electronic Industries Ltd [1978] VR 431 ('Niemann'), that it is necessary to consider whether the decision 'is attended with sufficient doubt to warrant its being reconsidered', and whether 'substantial injustice would result if leave were refused'. The Full Court in Décor v Dart also noted the comment in Niemann that the sufficient doubt question and the substantial injustice question bear upon each other and should not be considered in isolation. 73 In Décor v Dart, the Full Court also endorsed the proposition that leave will be more readily granted where the decision sought to be appealed from determined a 'substantive right' rather than a 'point of practice' (at 400). In the present case, the Federal Magistrate's decision determined the only substantive issue in the case - whether the Tribunal's decision was affected by jurisdictional error.

[24]

First proposed ground of appeal 81 The first proposed ground is that '[t]he Tribunal fell into jurisdictional error by reason of lack of procedural fairness'. The applicant alleges that in concluding that she was not a member of the Shouters Denomination, the Tribunal relied on comments made by an 'Adviser' to the Bureau of Religious Affairs under the State Council of the People's Republic of China' as to a refrain commonly shouted by members of the Shouters Denomination. 82 In a cable denoted 'CX25256' in the Tribunal's reasons, containing a report prepared by the Country Information Service on 28 August 1997, the following passage appears: 'The adviser then explained that the government stepped in if religions broke the law. Many sects and heretical groups had appeared in the countryside and had been used to engage in illegal activities. Two in particular had gained attention outside China. The "Shouters" were an heretical group that deviated from basic Christian teachings. They spent most of their time shouting the mantra "Jesus, thou art greater than I, and I am lesser than thee". Many followers had been driven to suicide. The other was the "holistic sect" of (Peter) Xu Yongze. Xu was an heretical catholic who had originally been a "Shouter". His sect taught that constant crying was the only way to salvation of the soul. Many of his followers had been sent mad.' (emphasis added) 83 The Tribunal stated (at 7): 'The Tribunal accepts that the applicant was baptised as a Christian almost two decades ago. While accepting that she also attends church in Australia the Tribunal notes that she did not know the denomination of the church she attends despite claiming to teach Sunday School there. She was unable to name correctly the New Testament gospels or to give any precise detail of any biblical stories. She was able to recite the Lord's Prayer, but knew nothing of the Ten Commandments. The Tribunal finds that the applicant's attachment to the church is peripheral. It is not satisfied that she has any attachment to the church in Australia apart from occasionally attending services or that she feels any religious obligation beyond occasional bible reading and attendance at church services. The applicant's claim that she is an adherent of the Shouters' Denomination was made belatedly. In her initial application she referred to herself only at "Christian" and in an accompanying statement made no mention of belonging to any particular denomination. The Tribunal notes that the most recent report of the United States Department of State Country Reports on Human Rights Practices indicates certain problems faced by some members of the Shouters' sect. The applicant was, however, unable to state with any accuracy at all the refrain of that denomination, despite evidence that members of the sect spend most of their time shouting a particular mantra (see CX25256). In assessing all the relevant material the Tribunal finds that the applicant was not a member of the Shouters' Denomination." (emphasis added) 84 The applicant complains that in relying on the information, the Tribunal failed to consider that the Adviser 'may not have been either independent or reliable in relation to practices of the Shouters Denomination'. The applicant appears to suggest that this reliance by the Tribunal on the information provided by Adviser led the Tribunal to 'make an erroneous finding or to reach a mistaken conclusion in a way that effected [sic] the exercise or purported exercise of the Tribunal's power' (cf Craig v South Australia (1995) 184 CLR 163). 85 Counsel for the applicant appeared to suggest that the Tribunal fell into jurisdictional error by taking into account an 'erroneous fact'. The 'erroneous fact' appears to be the Tribunal's acceptance that the refrain was as stated by the Chinese government official. The argument seems to be that the Tribunal should not have accepted as accurate, and relied upon, information provided by an official of the very entity (the Chinese government) which is said to have persecuted the applicant. Alternatively, counsel suggested that in accepting the information furnished by the official, the Tribunal failed to take account of other country information (being a United States Department of State report) which indicated that the Chinese government persecuted members of the Shouters Denomination: 'Police continued their efforts to close down an underground evangelical sect called the "Shouters", a branch of a pre-1949 indigenous Protestant group. The sect has been deemed an antigovernment, counterrevolutionary "cult". Since the early 1980's, authorities repeatedly have detained, fined, or imprisoned its members. Independent observers report an increase of nontraditional sects in recent years.' (US Department of State China Country Report on Human Rights Practices for 1998 at p 26) In its reasons the Tribunal noted (at 7) that the report from which the above passage comes 'indicates certain problems faced by some members of the Shouters' sect'. 86 Counsel for the applicant variously framed his present submission as asserting a failure to accord procedural fairness, as failing to take into account a relevant consideration, and as a taking into account of an irrelevant consideration. 87 In my opinion this ground of appeal is not arguable. The Tribunal set out a lengthy extract from the US Department of State China Country Report on Human Rights Practices for 1998. It was a matter for the Tribunal what weight should be given to the information provided by the Adviser. The Adviser's advice was that the Shouters' mantra or refrain was 'Jesus, Thou art greater than I and I am lesser than Thee', whereas the applicant had told the Tribunal it was 'Oh God, hallelujah'. The Tribunal was entitled to accept the word of the Adviser.

[33]

Third proposed ground of appeal 97 The third proposed ground of appeal is that in conducting the review, the Tribunal asked itself the wrong question, because it asked itself whether the applicant was of any, or of any serious, adverse interest to the authorities, rather than whether she had a well-founded fear of being persecuted if she should return to China. 98 The Tribunal did spend a considerable amount of its reasons evaluating whether the applicant was of any interest to the Chinese authorities. However, this was after the Tribunal had considered the applicant's claims and country information relating to the Chinese authorities' attitude towards Christians, and rejected, as not credible, the applicant's claim to have suffered persecution. In order of their making, the Tribunal's conclusions were:

that the applicant was not a member of the Shouters Denomination;
that the applicant had not encountered any difficulty due to her religious practices in China;
that the prospect of worshippers, including the applicant, facing persecution by worshipping in an unofficial Church is remote;
that the applicant was not of any interest to the authorities;
that the applicant departed China on her own passport because she was of no interest to the authorities; and
that any difficulties experienced by the applicant's son at school were not as a result of the applicant's religious practices, and do not suggest a real chance of persecution in the future for a Convention reason. 99 This list indicates that on more than one occasion, the Tribunal considered the chances of the applicant suffering persecution by reasons of her religious beliefs and practices if she were to return to China. Consideration of whether the applicant was of interest to the authorities was only part of the reasoning which led the Tribunal to conclude that the decision not to grant a protection visa should be affirmed. In the absence of any detail or reference to authorities in her submissions on this proposed ground, I am unable to conclude that it has any merit.

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (6)

Cases Cited (44)