SZSSJ v Minister for Home Affairs

The application to the Federal Circuit Court 6 Nearly five and a half years later, on 26 February 2018, the appellant applied to the Federal Circuit Court to have both decisions quashed and his detention declared unlawful. In his application he claimed that he had been detained while still a lawful holder of a visa and that the Departmental staff had produced and relied upon "fraudulent documents" after he had been detained. He identified the decision-maker as "Ms Linda". The signature of the delegate on the Departmental forms is apparently that of Linda Goodfellow. 7 The appellant also sought an extension of time. 8 The Minister filed an interlocutory application seeking to have the application dismissed on the basis that the court had no jurisdiction.

The judgment of the primary judge 9 On 22 February the primary judge made orders dismissing the application with costs on the ground that the court did not have jurisdiction to determine his claims for relief. The reasons for this decision in short were that both the delegate's decisions were "primary decisions" within the meaning of s 476(4) of the Migration Act, reviewable under Pt 5 of the Act by the MRT, and s 476(2) of the Act relevantly provides that the Federal Circuit Court has no jurisdiction in relation to a primary decision.

The objection to competency 10 No application for leave to appeal was filed but on 8 March 2019 the appellant filed a notice of appeal. 11 By notice filed on 4 April 2019 the Minister objects to the competency of the appeal. The Minister's point is that a judgment dismissing an application for want of jurisdiction is an interlocutory judgment and, in the absence of a grant of leave, the appeal is incompetent. In the notice of objection to competency, the Minister noted that no application for leave to appeal had been filed. 12 Subsection 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal. Subsection 24(1A) is subject to subs 24(1C), which relevantly provides that leave to appeal is not required from an interlocutory judgment that affects the liberty of an individual. 13 Subsection 24(1D) of the FCA Act lists several matters which are taken to be interlocutory judgments for the purposes of subs 24(1A). The dismissal of an action for want of jurisdiction is not included in the list. But the list is not intended to be exhaustive: Gao v Fair Work Ombudsman [2013] FCA 754 at [21] (Bromberg J).

The issues 14 Two questions therefore arise for consideration. First, is the judgment of the Federal Circuit Court an interlocutory judgment? Second, even if it is, does the appellant not require leave because the judgment affects his liberty?

Is the judgment of the Federal Circuit Court an interlocutory judgment? 15 The appellant argued that the judgment was not interlocutory because, although it disposed of an interlocutory application, the judgment was final in nature. That is certainly its practical effect, but it is not its legal effect. 16 Whether a judgment is final, rather than interlocutory, depends on whether the judgment finally determines the rights of the parties to the proceeding: Licul v Corney (1976) 180 CLR 213 at 225 (Gibbs J). As Gibbs CJ pointed out in Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248, the test requires the court to have regard to the legal, rather than the practical, effect of the judgment. 17 In Minogue v Williams [2000] FCA 125; 60 ALD 366 the Full Court held at [18] that a decision by a single judge of this Court dismissing an application for lack of jurisdiction was interlocutory because the judgment had not "in a legal sense" determined the rights of the parties that were in issue in the proceeding since the substantive claims remained undetermined. 18 Similarly, in SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 the Full Court held that the dismissal by the Federal Magistrates Court (the former name of the Federal Circuit Court) of two applications for judicial review (because they were outside the time limits imposed by s 477 of the Migration Act) was interlocutory in character and leave was required to bring the appeal. French J (with whom Tracey J agreed) explained at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. 19 In the present case the primary judge accepted as true the matters of fact recorded in the two decisions the subject of the appellant's application and did not accept the truth of the assertions made by the appellant in his own affidavit for reasons his Honour gave at [18] of his judgment. But his Honour did not go on to decide the question of the unlawfulness of the detention. In the result, he did not finally determine the substantive claims. Importantly, his Honour determined the Minister's interlocutory application on the assumption that the appellant's claims were true (see [19]). 20 For all these reasons I am satisfied that the judgment of the Federal Circuit Court was interlocutory in nature.

Does the judgment affect the appellant's liberty? 21 The next question is whether the judgment affects the appellant's liberty. The appellant argued that it did because he had been unlawfully detained as a result of the conduct of a Departmental officer in 2012. 22 During the course of argument my attention was not drawn to any authorities on the proper construction of subs 24(1C) of the FCA Act. After the argument I adjourned to consider them. 23 In Talacko v Talacko (2010)183 FCR 297 at [33] Ryan J held that the exception in subs 24(1C) was "confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty". In reaching this conclusion, his Honour drew upon the remarks of Ormiston JA in Ryan v Attorney General (Vic) [1998] 3 VR 670, which were directed to an analogous provision in the Supreme Court Act 1986 (Vic) (s 174(4)). In that case, Ormiston JA held that the expression "the liberty of the subject", in the context of an exception to the requirement for leave to appeal, should be construed to cover only those cases where the personal liberty of the subject is affected by the outcome of the appeal. 24 Talacko was followed by Bromberg J in Gao and by Perry J in SZSNN v Minister for Immigration and Border Protection (2013) 217 FCR 171. 25 In SZSNN Perry J held that a decision of the Federal Circuit Court to summarily dismiss an application for judicial review was not a judgment affecting the applicant's liberty within the meaning of s 24(1C), although he was in immigration detention at the time. Having regard to the limited jurisdiction of the Federal Circuit Court under s 476 of the Migration Act, her Honour held that the Court's decision could only have an indirect effect on the applicant's liberty. She observed that the orders made by the court below did not require the applicant to remain in detention. Her Honour explained at [23]: The orders made by the Court below, in summarily dismissing the application for judicial review, did not require the applicant to remain in detention. Nor if that Court had upheld his application for judicial review could that Court have ordered his release from detention. The Court below could only have ordered that his application for a visa be remitted to the Tribunal to be determined according to law. As such, the decision of the Federal Circuit Court could only affect the liberty of the applicant indirectly, that is, the Court determines whether or not the Tribunal is required to reconsider the application for a visa which, if granted, would lift the obligation to detain the applicant imposed by s 189 of the Migration Act. 26 In Sami v Commonwealth of Australia [2018] FCA 1991 at [37] White J took a different view. 27 In that case the applicant had sought an order restraining the Department of Home Affairs from continuing to hold him in detention and an interlocutory order directing the Department to release him from detention pending the determination of his application. His Honour observed that, at least prima facie, the summary dismissal of those applications was a judgment affecting his liberty because the effect was to deny him release from detention. His Honour considered that the terms "affecting the liberty of an individual" in s 24(1C) of the FCA Act means "something like concerning the liberty of an individual". He held that leave to appeal was not required. 28 I prefer the construction given to the subsection by Ryan J in Talacko, followed by Bromberg and Perry JJ in Gao and SZSNN respectively. I believe that it accords with the likely intention of the subsection. But it is unnecessary for me to resolve the tension in the authorities. That is because the effect of the interlocutory judgment in the present case was not to deny the appellant release from detention. At the time of the judgment he was not in detention. Nor was the effect of the judgment that he was taken into detention. It was common ground that he has not been in detention for some years. Indeed, the appellant informed the Court that he was granted a permanent visa on 24 December 2017. Consequently, not only is the judgment of the Federal Circuit Court one which does not directly affect his liberty, neither is it one which concerns his liberty. It had no effect on his liberty.

Conclusion 29 The appellant submitted that he did not realise that leave to appeal was required when he attended the Court's registry to file his notice of appeal and that, if he had, he would have lodged an application for leave to appeal. 30 I am prepared to accept what the appellant said. But he should have realised that leave to appeal was required by the time he was served with the Minister's notice of objection to competency, yet he took no steps then or later to rectify the situation. 31 In all the circumstances and for all the reasons I have given, I have no alternative but to dismiss the appeal as incompetent. Costs should follow the event. 32 There will be orders accordingly. 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.