FEDERAL COURT OF AUSTRALIA

SZFXH v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1140

MIGRATION – Refugee Review Tribunal – application for leave to appeal – Federal Magistrate dismissed application for review as incompetent – whether interlocutory or final judgment – where applicant has already sought review of same Tribunal decision on three other occasions – application dismissed

Migration Act 1958 (Cth)

Federal Magistrates Court Rules 2001 (Cth). 

Bienstein v Bienstein (2003) 195 ALR 225 cited

Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 cited

Re Luck (2003) 203 ALR 1 cited

Hall v Nominal Defendant (1966) 117 CLR 423 cited

SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 discussed

SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 759 discussed

SZFXH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 963 OF 2005

CONTI J

29 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant is to pay the respondent’s costs assessed at $500.00.

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

REASONS FOR JUDGMENT

1                     On 27 May 2005, Raphael FM dismissed as incompetent the application filed on 16 March 2005 by the applicant seeking review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 9 December 2002, which affirmed the decision of a ministerial delegate not to grant the applicant a protection visa.  The applicant now seeks leave to appeal from the Federal Magistrate’s orders and reasons for judgment. 

2                     The orders made by the Federal Magistrate in disposing of the application were as follows:

‘1.        The substantive proceedings are dismissed as incompetent.

2.         The applicant not be permitted to institute any proceedings in this court seeking review of a decision handed down by the Refugee Review Tribunal on 9 December 2002, without first obtaining the leave of this court.

3.         The applicant pay the respondent's costs of the proceedings and of this notice of motion, which I assess in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.’

3                     Formally placed before the Federal Magistrate was a notice of motion filed by the respondent Minister seeking summary dismissal of the application under r 13.10 of the Federal Magistrates Court Rules 2001 (Cth).  That rule provides that the Court may order that a proceeding be stayed or dismissed generally if it appears to the Court that either: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court.  The Minister’s motion sought summary dismissal of the application under paragraphs (b) and (c) of r 13.10.  Alternatively the Minister sought dismissal of the application as incompetent, since it was a privative clause decision as defined in s 474 of the Migration Act 1958 (Cth) (‘the Act’), review of which was being sought in the Federal Magistrates Court after the expiry of the 28-day time limit imposed by s 477 of the Act.

4                     The Minister contended before the Federal Magistrate that the application was groundless and emphasised that the applicant had already applied unsuccessfully for judicial review of the same Tribunal decision before the Federal Magistrates Court, the Federal Court and the High Court.  Driver FM dismissed the applicant’s first application for review on 24 July 2003.  His Honour held that none of the applicant’s claims had any substance in the context of the matter and furthermore, that no jurisdictional error was apparent on the face of the record of the Tribunal decision.  His Honour determined that the Tribunal’s decision of 9 December 2002 was a privative clause decision.  Tamberlin J dismissed an appeal from Driver FM’s judgment on 12 December 2003, finding that the Tribunal had not misunderstood the applicant’s claims, that there was nothing to indicate an absence of procedural fairness, and furthermore that there was no evidence to support the applicant’s contention that the Tribunal ignored his documents.  Special leave to appeal from Tamberlin J’s reasons for judgment was rejected by McHugh and Heydon JJ on 3 March 2005. 

5                     On the basis of the foregoing, the Minister sought summary dismissal of the application made to the Federal Magistrate pursuant to r 13.10, on the basis that the application was either an abuse of process, and that the doctrines of res judicata, issue estoppel and/or Anshun estoppel were in any event applicable to the circumstances.  Although the Federal Magistrate said at [3] of his reasons for judgment ‘[i]t seems to me quite clear that these proceedings are doomed to failure by virtue of the doctrine of res judicata’, his Honour does not appear to have dismissed the application on that basis. 

6                     Instead, his Honour proceeded to briefly outline authority for the principle that it is for the applicant, rather than the Tribunal, to prove the applicant’s case.  This was done by way of rejection of the applicant’s contention that each of the three prior judicial considerations of the 9 December 2002 Tribunal decision had erred by failing to obtain for themselves a copy of the transcript of the Tribunal hearing. 

7                     His Honour then concluded at [5] that since three separate findings had been made already that the decision about which the applicant complains did not involve in effect jurisdictional complaints, that decision was a ‘privative clause decision’ for the purposes of s 474.  His Honour dismissed the application as incompetent by reason of the applicant’s failure to lodge the application within 28 days of the Tribunal handing down its reasons for decision.  

8                     The issue that arises now for consideration is whether or not the Federal Magistrate’s judgment was interlocutory or final in nature. 

9                     The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties:  Bienstein v Bienstein (2003) 195 ALR 225 at 230 (McHugh, Kirby and Callinan JJ); Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 at 427 (Bowen CJ, Lockhart and Sheppard JJ).  It is clear that a summary dismissal of an action on the grounds that the action is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action is an interlocutory judgment:  Re Luck (2003) 203 ALR 1 at 4 (McHugh ACJ, Gummow and Heydon JJ); Hall v Nominal Defendant (1966) 117 CLR 423 at 440 (per Taylor J).  The Minister drew my attention to two recent authorities of this Court dealing with applications dismissed for incompetency pursuant to s 477 of the Act.

10                  In SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283, the applicant appealed from the dismissal of his application for review by a Federal Magistrate on the ground that it was incompetent under s 477.  In reaching that conclusion, the Federal Magistrate considered the appellant’s substantive claims and determined that the Tribunal’s decision was not vitiated by jurisdictional error, thereby rendering that decision a privative clause decision and the application incompetent by virtue of its having been brought out of the time specified in s 477, as is the case here.  Madgwick J considered the brief submissions put by the Minister and concluded that the Federal Magistrate’s decision was interlocutory, rather than final, for the following reasons (at [23]):

‘There is a theoretical possibility that some other proceeding might somewhere be launched.  (This is not a case in which I should provide any hints, should the appellant be minded to venture further with litigation to vindicate his contention that the decision of the Tribunal was jurisdictionally tainted by fundamental error.)  Even if some issue estoppel might arise as a result of the learned Magistrate’s consideration of the legal issues (which were necessary to his decision), so far as I can see, without the benefit of contrary argument, that does not convert his Honour’s judgment into a final one.  Estoppels need not be raised or pleaded and, if they are not, it is not open to another court considering the matter to rely on them.  Of its own motion, the legal effect of his Honour’s order was not to convert a jurisdictional complaint into res judicata.  So I think the better view is that leave is required.’

11                  In slightly different circumstances, Branson J expressed the view in SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 759 that a determination by a Federal Magistrate that a Tribunal’s decision is a ‘privative clause decision’, and the subsequent dismissal of the application as incompetent, is not interlocutory but rather final in nature.  Her Honour’s reasoning was that since the appellants had not asserted by their application that the Tribunal’s decision was a privative clause decision, the Federal Magistrates Court had jurisdiction to determine that application and moreover that although the Federal Magistrate had determined that the basis for not so asserting did not exist (the Tribunal’s decision was not, in fact, vitiated by jurisdictional error), that did not render the application incompetent.  Rather, it meant that the application failed because the appellants had failed to establish an essential element of their cause of action upon which they relied, namely, that the Tribunal had fallen into jurisdictional error.  In SZAQL the Minister did not contend that the Federal Magistrate’s judgment was interlocutory in nature, and her Honour’s observations were necessarily obiter dicta. 

12                  The Minister submitted that irrespective of those different approaches, the present circumstances are distinguishable from those in SZECK and SZAQL, since Raphael FM did not substantively determine whether or not the 9 December 2002 Tribunal decision was vitiated by jurisdictional error.  Instead his Honour had merely relied upon three prior court findings (which I have enumerated above) to the effect that the decision did not contain jurisdictional error, for his conclusion that the present application was incompetent. 

13                  The relevant question arising therefore is whether or not the Federal Magistrate’s decision finally determined the rights of the parties to the litigation, in particular, the rights of the applicant to bring further litigation seeking review of the same Tribunal decision.  It is unclear why it was that his Honour did not also dismiss the application on the ground that it was an abuse of process, particularly in light of his Honour’s dictum which I have recorded above.  As a practical matter, the applicant’s prospects of succeeding in any future litigation directed toward the 9 December 2002 Tribunal decision are plainly non-existent.  The applicant has exhausted every conceivable avenue for review of the Tribunal’s decision without success; his rights have in effect already been finally determined by the Courts of this country, and what exists now can only be characterised as an entirely frivolous endeavour by the appellant to delay his inevitable return to his country of origin.

14                  I observe for the record that the applicant did not appear at today’s hearing, in spite of receiving written notice in advance from the Court.  The Minister submitted that the applicant’s failure to appear also tended against the exercise of my discretion to grant leave to appeal. 

15                  The applicant has filed a draft notice of appeal and an affidavit in support of his application.  The draft notice of appeal is a pro forma document, the likes of which I have encountered on a number of occasions in cases of this nature.  It does not specify with any particularity any jurisdictional errors in the Tribunal’s decision.  Precisely the same can be said of the applicant’s affidavit, which refers to the applicant’s alleged involvement in Bangladeshi student politics and the arrest of members of his party pursuant to the ‘Black law-special Power Act’ (read literally). 

16                  In all the circumstances I dismiss the application for leave to appeal, and order that the applicant pay the Minister’s costs, assessed at $500.

Associate:

Dated:              17 August 2005