FEDERAL COURT OF AUSTRALIA

Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395

PRACTICE AND PROCEDURE – whether appeal is incompetent – whether order dismissing proceedings for want of jurisdiction is interlocutory.

MIGRATION – whether s 476(2) of the Migration Act 1958 (Cth) deprives the Court of jurisdiction to hear and determine a challenge to the Minister’s refusal to consider exercising the powers conferred by ss 48B and 417 of the Act.

Migration Act 1958 (Cth), s 48B, 417, 476(2)

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Court Rules, O 52 r 10

Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694, cited.

Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 79 FCR 71, cited.

Abebe v Commonwealth (1999) 197 CLR 510, referred to

Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145, cited.

APPLICANTS NAGM, NAGN, NAGO AND NAGP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N664 of 2002

SACKVILLE, ALLSOP & JACOBSON JJ

SYDNEY

5 DECEMBER 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

2.                  The application for leave to appeal be dismissed.

3.                  The adult appellants pay the costs of the purported appeal and the application for leave to appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The respondent (“the Minister”) has filed a notice of objection to the competency of an appeal.  We have given a detailed account of the proceedings in an accompanying judgment addressing the Minister’s application that a third party, Mr Fonua, pay the costs of the appeal: Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396.  We do not repeat that account in this judgment, but incorporate it so far as necessary.

2                     The ground on which the Minister challenges the competency of the appeal is that the decision of the primary Judge was interlocutory in character and, accordingly, leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24 (1A).  The appellants (as we shall describe them) have not applied for leave to appeal.  Nor have they sought an extension of time in which to file an application for leave to appeal: Federal Court Rules (“FCR”), O 52 r 10(2)(b).

3                     The application, which was filed in this Court on 23 April 2002, challenged what the appellants apparently understood was a refusal to grant them bridging visas.  By the time of the hearing, the appellants seemed to have been granted bridging visas.  In any event, the primary Judge, doubtless encouraged by the Minister’s submissions, treated the application as one seeking review of the Minister’s decision not to consider exercising his powers under ss 48B and 417 of the Migration Act (1958) (Cth) (“Migration Act”) in favour of the appellants.

4                     On that basis, his Honour held that the application was incompetent by reason of s 476(2) of the Migration Act which excludes the jurisdiction of the Federal Court “in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under [s 48B or s 417 of the Migration Act]”.  His Honour also seems to have held that the appellants’ challenge in relation to the Minister’s refusal to consider exercising his power under s 417 of the Migration Act failed in any event.  This was because the appellants had not sought review by the Refugee Review Tribunal (“RRT”) of the decision to refuse to grant them protection visas.  Accordingly, the power in s 417, which is to substitute a more favourable decision for that of the RRT, had simply never been enlivened.

5                     The notice of appeal appears to accept that the primary Judge correctly identified the issues that the appellants intended to raise at first instance.  The appellants challenge the correctness of his Honour’s dismissal of their claim that the Minister should be required to reconsider whether to exercise his powers under ss 48B or 417 of the Migration Act.

6                     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.  The fact that s 476(2) of the Migration Act deprives the Federal Court of jurisdiction to entertain a challenge to the Minister’s refusal to consider the exercise of his powers under ss 48B or 417 does not mean, for example, that the High Court is deprived of jurisdiction to address such a challenge pursuant to s 75(v) of the Constitution.  That the order in the present case was interlocutory in character receives support from the dicta of Spender J (with whom Finn J agreed) in Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694, at [3]-[8]; cf Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 79 FCR 71, at 80, per curiam.  On this basis, the appeal is incompetent, since the appellants required leave to appeal from the interlocutory decision.

7                     Since the appellants are without legal representation, we would be prepared to treat the notice of appeal as an application for an extension of time in which to file and serve the notice of appeal, assuming that the appeal has some prospects of success.  In our view, however, any application for an extension of time should be refused, as an appeal from the primary Judge’s decision would be futile.

8                     In our opinion, the primary Judge was clearly correct to hold that s 476(2) of the Migration Act deprived this Court of jurisdiction to hear and determine a challenge to the Minister’s refusal to consider the exercise of his powers under ss 48B and 417.  This conclusion follows inexorably from the clear language of s 476(2) itself.  The appellants advanced no cogent ground for challenging the constitutional validity of s 476(2) of the Migration Act.  The Federal Court is a creature of statute and Parliament may determine the extent of its jurisdiction: see, generally, Abebe v Commonwealth (1999) 197 CLR 510.

9                     In any event, the appellants’ claim for relief would be defeated by ss 48B(6) and 417(7) of the Migration Act.  Each provides that the Minister does not have a duty to consider the exercise of the relevant power in respect of a non-citizen.  As Hely J said in Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145, at [8]:

“[r]elief cannot be available under s 39B of the [Judiciary Act 1903 (Cth)] by reason of the Minister’s failure to consider a matter which the Migration Act specifically says that he is not obliged to consider”.

10                  The appellants face yet a further obstacle in relation to their claim that the Minister was bound to consider the exercise of his power under s 417(1) of the Migration Act.  That power was plainly not available to the Minister in the circumstances of the present case.  As we have noted, the power conferred by s 417 is to substitute for a decision of the RRT another decision that is more favourable to an applicant.  The appellants withdrew their applications to the RRT to review the delegate’s decision to refuse to grant them protection visas.  Accordingly, there was no RRT decision in respect of which the Minister could have power to substitute another decision.

11                  If we are incorrect in our view that the primary Judge’s decision was interlocutory and (contrary to our view) the appellants are entitled to appeal as of right, we would dismiss their appeal.  For the reasons we have given, it is without merit.

12                  Accordingly, the appeal should be dismissed as incompetent.  The application for an extension of time in which to apply for leave to appeal should also be dismissed.

13                  The Minister sought an order for costs against the adult appellants in the event that the Court was not prepared to make a costs order against Mr Fonua, the person who drafted the notice of appeal.  Since we are not prepared to make a costs order against Mr Fonua, the adult appellants must pay the costs of the purported appeal and the application for leave to appeal.

Associate:

Dated:              5 December 2002

The appellants appeared in person