SZQPN v Minister for Immigration and Citizenship

DISCUSSION 8 In SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 Rares J dealt with an application to this Court for an extension of time and leave to appeal from a decision of the Federal Magistrates Court refusing an extension of time under s 477(2) of the Migration Act. Rares J was of the view that s 476A(3)(a) of the Migration Act must be given effect with the consequence that this Court, in his conclusion, has no jurisdiction to entertain an appeal from a judgment or order of the Federal Magistrates Court refusing to grant an extension of time under s 477(2). Rares J concluded that it must follow from this that "there is no jurisdiction to entertain an application seeking an extension of time in which to file an appeal, or leave to appeal, from such a judgment or order" (at [7]). 9 Subsequent to the decision of Rares J, the Full Court of this Court also had occasion to consider the terms of s 476A(3)(a) of the Migration Act in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 (SZQDZ). There the Full Court was dealing with questions referred to it pursuant to orders of Rares J. The Full Court dealt with the relationship between ss 477 and 476A(3)(a) of the Migration Act at [18] - [21] of its reasons for judgment, observing at [19] that there was a distinction between the orders made under s 477(2) of the Migration Act in respect of the application for the extension of time and what the Full Court described as "the subsequent and consequential orders dismissing each proceeding", stating that the "subsequent and consequential orders dismissing each proceeding were not made under s 477(2) of the Migration Act for they were not orders either making or refusing to make an order extending time". As a result, the Full Court concluded that s 476A(3)(a) of the Migration Act "does not bar an appeal from those orders: this follows from the intractability of the proposition that an order dismissing a proceeding is not, on any view, an order making or refusing to make an order extending time" (at [19]). 10 The Full Court rejected the submission of the Minister in that case that the order dismissing the proceeding should be seen as "bound up" with the refusal to make orders under s 477(2). The Full Court said (at [20]): We cannot accept this submission. Both the form of the orders and the sources of power underpinning them were distinct. Although the learned Federal Magistrates did not need to advert expressly to the source of their power to dismiss each proceeding, it is apparent that the power was that conferred by r 13.10 of the Federal Magistrates Court Rules 2001 (Cth), that is, the power to dismiss proceedings having no prospects of success. Section 477(2) confers no such power. 11 It will be apparent from this analysis that the reasoning of the Full Court turned upon the words of s 476A(3)(a) of the Migration Act, specifically the words which refer to the making or refusing to make an order "under subsection 477(2)". The Full Court reasoned that the only orders made under s 477(2) were the orders either extending or refusing to extend the 35 day period set out in s 477(1). The consequential or subsequent orders dismissing the appeal as one that could not possibly succeed on this reasoning were not orders made "under subsection 477(2)" of the Migration Act. 12 The present case directly raises for consideration the practical and legal consequences of the distinction which the Full Court explained in SZQDZ. I have before me an application for leave to appeal from the judgment and orders of the Federal Magistrates Court. There are two relevant orders of the Federal Magistrates Court, set out above. The first is an order which, in form and substance, is an order made under s 477(2) of the Migration Act refusing the application for the extension of time. It necessarily follows that no appeal may be brought to this Court from that order in accordance with the terms of s 476A(3)(a) of the Migration Act. 13 The second order is that the application made on 7 September 2011 and amended on 24 October 2011 is dismissed as not competent. On the Full Court's reasoning it seems to be inevitable that this second order would be characterised as consequential upon or subsequent to the order under s 477(2) of the Migration Act, rather than an order under s 477(2) of the Migration Act. In the present case the Minister submitted to the contrary because order 2 of the Federal Magistrates Court is framed in terms as a dismissal of the application "as not competent". As I understand the Minister's position, this is a distinguishing factor from the reasoning of the Full Court in SZQDZ because it is plain from the face of order 2 that the application was dismissed by the Federal Magistrates Court as not competent by reason of the refusal of the application for the extension of time. I do not think that the inclusion of the words "as not competent" in order 2 can alter the characterisation of the order which would be consistent with the reasoning of the Full Court. Order 2 in form, and more importantly, in substance is an order subsequent to or consequential upon the making of an order under s 477(2) rather than itself being an order under s 477(2) of the Migration Act. This conclusion leads me to the second of the Minister's submissions. 14 The second submission is that the application for leave to appeal is incompetent insofar as it seeks leave to appeal against the order of the Federal Magistrates Court refusing to extend time under s 477(2) of the Migration Act, but competent insofar as it seeks leave to appeal from the order of the Federal Magistrates Court dismissing as not competent the application made on 7 September 2011 and amended on 24 October 2011. The submissions the Minister then made disclose the rather unusual consequences of this situation. In short, order 2 of the Federal Magistrates Court is unassailable in terms of its legal correctness and logic. Having determined that it was not satisfied that it was appropriate to extend the 35 day period in accordance with s 477(2) of the Migration Act, the conclusion of the Federal Magistrates Court that the application made on 7 September 2011 and amended on 24 October 2011 was not competent necessarily followed from the terms of s 477(1) of the Migration Act. As a consequence, the applicant in this case would have, and has, no legal foundation whatsoever to impugn order 2 of the Federal Magistrates Court. Although the appeal is not incompetent in this respect, as the Minister accepted would be so, on the Minister's alternative argument the appeal would be doomed to fail and accordingly there could be no proper basis for granting the application for leave to appeal. It would work a substantial injustice to grant leave to appeal in circumstances where the appeal was doomed to fail. This conclusion of course does not involve any consideration of the merits or otherwise of the proposed grounds of appeal in terms of the substantive decision of the Tribunal. However, in circumstances where the decision and order of the Federal Magistrates Court was that the application must be dismissed as incompetent by reason of its refusal to extend time, I accept the Minister's submission that the decision and order, given the fact that no appeal may be brought against the refusal to extend time in order 1, is unassailable in this Court, with a consequence that any appeal would be doomed and hence leave to appeal should not be granted. 15 It follows that I am satisfied for these reasons that the application for leave to appeal filed on 27 March 2012 must be dismissed, and I so order. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.