SZQYP v Hannigan

REASONS FOR JUDGMENT 1 The applicants challenge a decision of a registrar of this Court to refuse to accept for filing an application for leave to appeal from a judgment of the Federal Magistrates Court. 2 The applicants are a family of Indian nationals who claim to fear persecution in India. They applied unsuccessfully to the Minister for Immigration and Citizenship ("the Minister") for protection visas and then again without success to the Refugee Review Tribunal ("the tribunal") for a review of the Minister's decision. The decision of the tribunal was a privative clause decision and so was only amenable to review for jurisdictional error: Migration Act 1958 (Cth), s 474 and Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. Six months after the tribunal's decision the applicants applied to the Federal Magistrates Court for constitutional writs. Section 477(1) of the Migration Act imposes a 35 day time limit in which to make the application. The Federal Magistrates Court may extend the limit if it is satisfied that it is necessary in the interests of the administration of justice to do so: s 477(2). The applicants applied for an extension of time but their application was refused. The federal magistrate considered that it was not necessary in the interests of the administration of justice for him to exercise his discretion to make an order extending time because he was not satisfied that there was a sufficiently arguable case that the tribunal fell the jurisdictional error. He then made the following orders: 1. Application for an extension of time refused. 2. Substantive application dismissed. 3. First, Second and Third applicants to pay the First Respondent's costs assessed in the sum of $5,000.00. See SZQYP & Ors v Minister for Immigration and Citizenship & Anor [2012] FMCA 569. 3 On 2 July 2012 the applicants tried to file in this Court an application for leave to appeal. The application was accompanied by a draft notice of appeal and a short affidavit, sworn by the first applicant. The duty registrar refused to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 ("the Rules") on the basis that, if filed, the proceeding was doomed to fail because the Court does not have jurisdiction to hear the matter. 4 The applicants have applied for a review of the registrar's decision. They seek an order that the registrar be directed to accept the application for filing. The application has been brought under r 3.11 of the Rules. But r 3.11 only applies to applications for review of the exercise of a judicial power. As the power the registrar was exercising is not judicial, but administrative (Rahman v Hedge [2012] FCA 68 per Perram J at [5] following Satchithanantham v National Australia Bank Ltd (2009) 260 ALR 567 at 575 per Foster J at [31]), the application should have been made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). I am nonetheless prepared to treat the application as having been made under the ADJR Act and to dispense with compliance with rr 31.01 and 31.03. 5 By consent, the Minister was joined as a respondent pursuant to r 9.05(1)(b)(ii). He opposed the application. 6 The applicants rely on two grounds: first, that in holding that the Court lacked jurisdiction, the registrar misdirected herself as to the law, and secondly, that her decision was an improper exercise of power because she failed to take into account a relevant consideration: ADJR Act, s 5(1)(e) and 5(1)(f) and 5(2)(b). 7 It is convenient to deal with the second ground first. It must be dismissed. The ground of failure to take into account a relevant consideration can only be made out if the consideration is one the decision-maker was bound to consider. Whether the decision-maker is bound to consider a matter is to be gleaned from the subject matter, scope and purpose of the Act (here the Federal Court of Australia Act 1976 (Cth) ("FCA Act") and Rules): Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The consideration said to be relevant in this case was that this was a developing area of law and an administrative act should not stifle or stunt the law's development. Assuming that it is correct to say that the law is developing in this area, there is nothing I can glean from the subject matter, scope or purpose of the FCA Act or Rules that would require the registrar to take that circumstance into account. Certainly, Mr Silva, who appeared for the applicants, did not point to anything. 8 The question, then, is whether the registrar misdirected herself as to the law. 9 This Court's appellate jurisdiction is conferred by s 24 of the FCA Act. The Court has jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under the Migration Act, but subject to that Act. As the Full Court pointed out in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 ("SZQDZ") at [18] the breadth of the grant of jurisdiction is delimited by s 476A(3)(a) of the Migration Act which relevantly provides: 476A Limited jurisdiction of the Federal Court (3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2) … 10 On its face the federal magistrate's judgment in the present case was such a judgment. Consequently, the Court has no jurisdiction to entertain an appeal nor, it must follow, an application for leave to appeal: SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339. So where is the error in the registrar's decision? 11 Mr Silva accepted that the federal magistrate's first order could not be appealed. But he argued that the second order could be. He relied on what the Full Court said in SZQDZ at [19]: [E]ach applicant did, in fact, make an application to extend the 35 day time limit under s 477(2) but each of those applications was unsuccessful. Indeed, it was because those applications had failed that the Federal Magistrates Court decided that the 35 day time limit specified in s 477(1) barred all the applicants' claims to relief. The important point here is that the subsequent and consequential orders dismissing each proceeding were not made under s 477(2) for they were not orders either making or refusing to make an order extending time. Consequently, s 476A(3)(a) 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. 12 In fact, s 476A(3)(a) does not speak of appeals from orders making or refusing to make orders extending time. It speaks of judgments making or refusing to make such orders. I am nonetheless bound by the Full Court's decision. It follows that an appeal from the federal magistrate's second order was not barred by s 476A(3)(a). It does not, however, follow that the registrar erred in law in refusing to accept the documents or, even if she did, that her decision should be set aside. 13 The applicants apparently drew the registrar's attention to the judgment in SZQDZ but she distinguished it on the ground that it was concerned with the question of the time limit applying to a review of a recommendation of an Independents Merits Reviewer, not the tribunal. 14 This case is, indeed, distinguishable from SZQDZ. In SZQDZ (which was concerned with a number of appeals) the appellants had applied to the Federal Magistrates Court for quia timet injunctions to restrain the Minister or his officers from taking action in the future in reliance on the reviewers' recommendations. The Full Court held that the time limit in s 477(1) of the Migration Act does not apply to an application of this nature. In the present case, the applicants accept (as they must) that the time limit applies to the decisions they want to challenge. It follows that, unless they obtained an extension of time, they could not make their application; their right to judicial review would be extinguished: Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 at [47] per Buchanan J, with whom Gyles and Jacobson JJ agreed. Mr Silva appeared to concede as much, when he accepted that, if the federal magistrate had not made the second order, the applicants could not make their application. 15 Mr Silva also relied on the decision in SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 ("SZQPN"). In SZQPN Jagot J dismissed an application for leave to appeal from a judgment of the Federal Magistrates Court refusing to extend time pursuant to s 477(2) and dismissing the substantive application. Mr Silva sought to distinguish the decision because the second order the federal magistrate made in that case was not merely to dismiss the substantive application but to dismiss it as "not competent". The distinction is without merit. Her Honour's decision does not turn on the presence in the orders of the words "as not competent". In my view, the question of principle in this case is no different from the question of principle in SZQPN. 16 In the present case the federal magistrate said (at [7]): The conclusion that I have come to in this case is that it is not in the interests of the administration of justice for me to exercise my discretion to make an order extending the time because, for the reasons which appear below, I am not satisfied that there is a sufficiently arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I should point out that the matter was argued before me as if it was a final hearing, and that I have had the benefit of an amended application and written submissions prepared by a solicitor appearing for the applicants and written submissions prepared by a solicitor appearing on behalf of the Minister. 17 Whilst accepting that his Honour was entitled to consider the merits for the purpose of determining whether the extension of time should be granted, Mr Silva submitted that this was a finding on the merits, not a finding on whether time should be extended. But the decision of the federal magistrate in SZQPN was not materially different. See SZQPN v Minister for Immigration [2012] FMCA 47. 18 In SZQPN her Honour explored the practical and legal consequences of the finding in SZQDZ that s 477(2) does not bar an appeal from the dismissal of an application, only the order refusing an extension of time. She characterised the dismissal order as an order subsequent to or consequential upon the making of an order under s 477(2), rather than itself an order under the subsection, and therefore no different from the subsequent orders made in SZQDZ. So, too, the second order in this case. Still, 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 [substantive] application 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. 19 The same must be said here. In an apparent attempt to avoid this conclusion, the applicants submit that the first order is affected by jurisdictional error. In a letter annexed to the affidavit in support of this application the applicants argue that s 476A(3)(a) is in the nature of a Privative Clause and if there is a error of law in the decision of [the federal magistrate] refusing to extend time then the Federal Court would have the power to quash the decision in spite of s 476A(3)(a). This is because the decision of [the federal magistrate] not to extend time would not be a valid decision and s 476A(3)(c) could not protect an invalid decision. In the well-known case of Applicant S157 the High Court held that privative causes cannot protect an invalid decision. 20 The applicants referred to the following passage in the judgment in SZQDZ at [21]: The applicants advanced an alternate argument that each refusal by the federal magistrates to extend time under s 477(2) was affected by jurisdictional error so that the bar on this Court's appellate jurisdiction in s 476A(3)(c) was not engaged. This argument was that the bar on appeals applied only to valid decisions. On this view Court could directly review the orders refusing to extend time under s 477(2) because, in truth, they were not orders under s 477(2) at all, and so the limitation in s 476A(3) did not apply. Because of the conclusions to which we have come, it is not necessary to deal with the argument. 21 Mr Silva put the same argument, although he was unable to cite any authority in support of it. He was also unable to articulate what the jurisdictional error was. Indeed, paradoxically, he maintained he did not have to establish jurisdictional error on the part of the federal magistrate. 22 In United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335 ("United Telecasters"), however, Samuels AP, with whom Clarke and Meagher JJA agreed, held that where the District Court of New South Wales had no authority to make an order of a certain kind, the order was a nullity. In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 the majority (Gaudron, Gummow and Callinan JJ) applied United Telecasters. There is no suggestion in the present case that the federal magistrate had no authority to make the order, nor could there be. Nevertheless, I will assume, without deciding, that s 476A(3)(a) does not bar an application for leave to appeal from a judgment affected by jurisdictional error, at least certain kinds of jurisdictional error. But contrary to the underlying premise of the applicants' argument, an error of law is not always or necessarily jurisdictional. Indeed, in the case of inferior courts, the opposite is usually the case: Craig v South Australia (1995) 184 CLR 163 at 179. 23 In her affidavit in support of the application for leave the first applicant states: This leave to appeal is being filed because there is error in the way [the federal magistrate] decided both the substantive grounds of review put forward at the Federal Magistrates Court and the way his Honour exercised his discretion to refuse the extension of time. 24 There is no hint here of jurisdictional error. 25 Six grounds of appeal are proposed in the draft notice of appeal. None of the first five raises any question of jurisdictional error on the part of the federal magistrate. But on its face ground 6 does. It is in the following terms: the learned Federal Magistrate's decision refusal to grant extension of time is affected by jurisdictional error and it is not a valid decision under the act. 26 Still, the particulars of ground 6 do not identify a jurisdictional error. They read as follows: His Honour's exercise of discretion was legally flawed and is affected by jurisdictional error. His Honour's decision was based on his erroneous decision about the merits of the case. The refusal by the Federal Magistrates to extend time under s 477(2) was affected by jurisdictional error so that the bar on this Court's appellate jurisdiction in s 476A(3)(c) was not engaged. This argument was that the bar on appeals applied only to valid decisions. 27 But what is the legal flaw? What is the jurisdictional error? What was invalid about the federal magistrate's decision? Nowhere are these questions answered. An erroneous decision about the merits is neither an error of law nor a jurisdictional error. 28 The Minister submitted it would be futile to grant relief because if the application were filed it would be bound to fail. Mr Silva did not argue otherwise. Rather, he submitted that the question of futility is a matter for the appeal Court, not the registrar. Mr Silva's submission must be rejected. 29 First, the registrar's decision was made under r 2.26. The rule provides: A Registrar may refuse to accept the document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 30 A proceeding will constitute an abuse of process if it can clearly be seen to be doomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393. Likewise, a proceeding will be regarded as vexatious where it is obviously untenable or utterly hopeless: von Reisner v Commonwealth (2009) 177 FCR 531 at [27]. Futility is certainly a matter for the registrar. 31 Secondly, s 37M of the FCA Act requires that the powers conferred by the Act and Rules be exercised in the way that best promotes the overarching purpose of their civil practice and procedure provisions. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The purpose includes such objectives as the efficient use of the judicial resources available to the Court and the efficient disposal of its overall caseload. It would not best promote the overarching purpose to accept an application for filing when it is inevitable that it would be dismissed. 32 I would not set aside the registrar's decision. The application for leave to appeal is hopeless. Without an extension of time the applicants had no right to make their application to the Federal Magistrates Court. On the assumption that the statutory bar does not apply to a judgment refusing to extend time that is infected by jurisdictional error, the documents submitted for filing do not identify such an error. Alternatively, even if the registrar should not have refused to accept the documents for filing, I would refuse relief in the exercise of my discretion (see Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at [87]), as the application is doomed to fail. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.