FEDERAL COURT OF AUSTRALIA

SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 416

SZDZV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1386 OF 2004

STONE J

15 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                       The appeal be dismissed.

2.                       The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     On 24 September 2004 the appellant filed a notice of appeal in respect of a decision of a Federal Magistrate made on 7 September 2004.  His Honour dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) given on 29 April 1998.  The Federal Magistrate found that there was no evidence of jurisdictional error in the Tribunal’s reasons for decision.  His Honour therefore held that the Tribunal’s decision was a privative clause decision and upheld the respondent’s objection to competency based on the appellant’s failure to file an application for review within the 28 days allowed by s 477(1A) of the Migration Act 1958 (Cth) (‘Migration Act’).  In doing so his Honour commented that the application was made some years outside that time limit.  The Minister now concedes that the objection to competency filed in the Federal Magistrates Court was filed in error and no longer presses the objection to competency filed in this Court in respect of the current proceeding. 

Background

2                     The appellant arrived in Australia most recently on 2 March 1997, although he claimed to have arrived in May 1995.  Nothing in this appeal turns on the date of the appellant’s arrival in Australia.  He applied for a protection visa on 3 June 1997.  His application was refused by a delegate of the respondent on 27 June 1997 and he applied to the Tribunal for a review of that decision on 28 July 1997.  The Tribunal handed down its decision on 29 April 1998. 

3                     On 22 March 1999, the appellant became a member of the class that filed the class action considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’).  The High Court made orders that permitted the represented parties to apply individually for orders nisi.  Those applications were remitted to this Court on filing; in the appellant’s case this was on 29 May 2003.  Emmett J dismissed the appellant’s application on 20 February 2004; Applicant S1174 of 2002 v Refugee Review Tribunal (2005) 80 ALD 325 (‘Applicant S1174’). 

4                     On 15 July 2004 the appellant filed an application for judicial review in the Federal Magistrates Court.  Following dismissal of this application on 7 September 2004 the appellant filed a notice of appeal in this Court.

This appeal

5                     The notice of appeal asserts four grounds of appeal.  Ground 1 is that the Federal Magistrate erred in that he ‘failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act. 1903 [sic]’.  The other three grounds refer to three decisions namely, Muin, Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74.  As the respondent’s written submissions point out, there is no indication of how those judgments relate to the appeal. The notice of appeal does not particularise the allegations, which are repeated in the appellant’s written submissions, again without particulars.  In his oral submissions the appellant raised only issues of merits review, which neither this Court nor the Federal Magistrates Court has jurisdiction to consider.

6                     Counsel for the respondent, Ms McNaughton, submitted that although the Federal Magistrate was technically in error in holding that the decision was a privative clause decision within the meaning of s 474(2) of the Migration Act, his Honour was correct in finding that the Tribunal’s decision was not affected by jurisdictional error and therefore the appeal should be dismissed.   She submitted that the Tribunal’s decision was not a privative clause decision because an application for judicial review of the decision was lodged before the commencement of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (‘Amendment Act’) on 2 October 2001.  Ms McNaughton submitted that consequently the restrictions on review of privative clause decisions contained in s 474(1) of the Migration Act do not apply.    

7                     Ms McNaughton also submitted that the Migration Act review provisions that preceded the changes made by the Amendment Act do not apply because those provisions have been repealed. That being so, she submitted, the only basis on which the decision of the Tribunal could be reviewed is that of jurisdictional error.  

The Amendment Act provisions

8                     The relevant provisions of the Amendment Act are contained in Schedule 1, Part 2, Items 8(1), (2) and (3) which are as follows:

‘8         Application

(1)               If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted.

(2)               The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:

(a)                the decision was made on or after the commencement of this Schedule; or

(b)                the decision:

(i)                  was made before the commencement of this Schedule; and

(ii)                as at that commencement, an application for judicial review of the decision had not been lodged.

(3)               A reference in subitem (1) or (2) to an application for judicial review of a decision is a reference to:

(a)                an application for review of the decision under:

(i)                  section 44 of the Administrative Appeals Tribunal Act 1975; or

(ii)                Part 8 of the Migration Act 1958; or

(iii)              the Administrative Decisions (Judicial Review) Act 1977; or

(b)                an application for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of the decision under:

(i)                  section 75 of the Constitution; or

(ii)                section 39B or 67C of the Judiciary Act 1903.’

Consideration

9                     By virtue of Item 8(3), the appellant’s participation in the Muin class action in March 1999 was ‘an application for judicial review of a decision’ under the Migration Act.  That application (‘Muin application’) was lodged before the commencement of Schedule 1 to the Amendment Act on 2 October 2001.  Accordingly the Migration Act as amended by the Amendment Act did not apply to that application. 

10                  I accept that as the review provisions of the Migration Act that preceded the changes made by the Amendment Act were repealed by the Amendment Act they cannot apply to applications made since 2 October 2001.  Such applications include the application for judicial review that was considered by the Federal Magistrate (‘FMC application’), which was made on 15 July 2004.

11                  That being so the issue is whether, as the respondent submits, there are no applicable Migration Act review provisions or whether the Migration Act as amended by the Amendment Act applies to the FMC application.  On a literal interpretation the reference in Item 8(2)(b)(ii) of Schedule 1 of the Amendment Act to ‘an application for judicial review’ (emphasis added) covers any application for judicial review of the Tribunal’s decision.  This interpretation supports the respondent’s submission and leads to the conclusion that the fact that the Muin application predated the amendments means not only that the amendments made by the Amendment Act do not apply to the Muin application but also that they do not apply to any subsequent application for judicial review such as the FMC application.  This is the position put by the respondent with the consequence referred to above at  [7], namely that if neither the pre-amendment nor the post-amendment provisions of the Migration Act apply, the only basis for review is the power of the Court to review for jurisdictional error in exercise of its power under s 39B of the Judiciary Act 1903 (Cth). 

12                  While neither party raised the point, I have considered a possible interpretation that the reference in Item 8(2)(b)(ii) to the lodging of ‘an application for judicial review of the decision’ is a reference to the application under consideration, in this case the FMC application, that is relevant.  I have decided, however, to reject that interpretation as there is no sufficient reason to depart from the literal meaning of the provision.  If it were correct the consequence would be that since the FMC application was made after the commencement of Schedule 1 to the Amendment Act, the amendments apply to the FMC application.  In that case the only basis of review in this Court or the Federal Magistrates Court would be jurisdictional error; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.  It follows that this conclusion would affect neither the criterion to be applied nor the result of this appeal. 

13                  The fact that the appellant’s application for an order nisi was dismissed by Emmett J does not stand in the way of a consideration of the substance of the FMC application or this appeal.  In Applicant S1174 his Honour said at 330 - 331:

‘The first possible prejudice adverted to was the suggestion that, the applicant, if an order nisi were refused at this stage, would be barred from relief by the principles of res judicata, issue estoppel or Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), even if he were subsequently able to demonstrate an arguable case.  I do not see any substance in that expressed concern.  An order refusing an order nisi is clearly an interlocutory order.  As such it would not found any bar or estoppel against appropriate relief if grounds are established.  Further, the minister has assured the court that there would be no submission made on behalf of the minister, in relation to this application or any of the other applicants presently before me, that the refusal of an order nisi would constituted (sic) a bar to the commencement of a fresh proceeding claiming the same relief.’

14                  In reviewing the appellant’s application, the Federal Magistrate gave careful consideration to the question of jurisdictional error.  His Honour pointed out that the Tribunal had serious reservations about the appellant’s credibility arising from discrepancies in the appellant’s account of his experiences in Fiji.  In a passage quoted by the Federal Magistrate, the Tribunal said:

‘It is clear from the account of the evidence set out above that there are numerous inconsistencies between the accounts provided by the Applicant of the events leading to his departure from Fiji initially in his written statement, and subsequently in his oral evidence.  The discrepancies are not only numerous, but they relate to fundamental parts of his claims.  In effect, the Applicant provided two almost entirely different versions of the events which he says precipitated his departure from Fiji.  In my view, it is inconceivable that, had these events actually occurred, the Applicant could be so mistaken about them, given that they occurred relatively recently in 1995, and were of crucial significance to his decision to leave Fiji, allegedly in fear of his life.’

15                  The Federal Magistrate continued his analysis of the Tribunal’s decision referring to the Tribunal’s view, based on independent country information, that racially motivated attacks in Fiji were uncommon in 1995 and therefore the appellant would not have been subjected to such attacks at that time.  It is not necessary here to recount the submissions made before his Honour on behalf of the appellant.  It is sufficient to note that his Honour considered them all and concluded that he could not detect any jurisdictional error affecting the Tribunal’s decision.  

16                  Before me the appellant has not pointed to any error in his Honour’s reasons and I see no reason to disagree with his Honour’s assessment of the Tribunal’s decision.  For these reasons the appeal must be dismissed.  The appellant must pay the respondent’s costs of the appeal.

Associate:

Dated:              15 April 2005