FEDERAL COURT OF AUSTRALIA

Md Abdullah Al Mamun v Minister for Immigration and Citizenship
[2007] FCA 541

MD ABDULLAH AL MAMUN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 540 OF 2007

COWDROY J

23 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The Notice of Appeal filed on 27 March 2007 be dismissed.

3.                  The applicant pay the costs of the first respondent in the sum of $750.00.

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

REASONS FOR JUDGMENT

1                     By Notice of Appeal filed on 27 March 2007 the applicant appeals from the whole of the decision of Federal Magistrate Lloyd-Jones given on 8 March 2007 dismissing an Application for review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 29 August 2006. Such Application was dismissed on the basis that it was incompetent as it was filed outside the time prescribed by s 477 of the Migration Act 1958 (Cth) (‘the Act’).

Facts

2                     The applicant, a citizen of Bangladesh held a 572 Vocational Education and Training Sector visa which was issued on 19 February 2003 and expired on 15 March 2005. The applicant applied for a further visa on 5 June 2006 but this application was refused by a delegate of the Minister for Immigration and Citizenship (‘the delegate’) on 12 July 2006 on the basis that the applicant did not satisfy cl 572.211(3)(c)(i) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Such clause relevantly provides that the applicant does not satisfy the requirements of the subclause unless:

‘(c)    the application is made within 28 days (or within such period specified by Gazette Notice) after:

            (i)   the day when that last substantive visa ceased to be in effect.’

3                     On 17 July 2006 the applicant applied to the Tribunal for review of the delegate’s decision. On 29 August 2006 the Tribunal affirmed the decision of the delegate. The Tribunal found that the applicant had not satisfied cl 572.211(3)(c) of Schedule 2 of the Regulations as he had failed to make an application for a visa within 28 days of the expiration of his last substantive visa.

4                     By application dated 21 December 2006, the applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 20 February 2007 the Minister filed a response to the application claiming that it should be dismissed because the application was not made within the time limit prescribed by s 477 of the Act and because the application did not disclose a jurisdictional error by the Tribunal. On the same day the Minister filed a notice of objection to competency also based on the ground that the application was filed outside of the time limit imposed by s 477(1) and s 477(2) of the Act.

5                     On 8 March 2007 Lloyd-Jones FM dismissed the application finding that the application was incompetent because it had been filed outside the time prescribed for filing such applications under s 477 of the Act and because the Tribunal’s decision did not reveal any jurisdictional error. His Honour made the following relevant findings:

‘8.     There is no dispute that the Tribunal decision was made on 29 August 2006 and the applicant was notified of that decision on that day. The application to the Federal Magistrates Court was made on 21 December 2006. That is a period of 114 Days, which is clearly outside of the 84 day period within which the Court may extend the time pursuant to s.477(2) of the Act. The application was not filed within the 84 day period from the notification. The 84 day period expired on 21 November 2006. Consequently, the application was not made within the statutory time limit imposed by s.477(2) of the Act.

…

 11.   The Tribunal decision on its face, does not reveal any jurisdictional error made by the Tribunal member in it decision making process. The grounds of review raised in the applicant’s application cannot be sustained. As the Tribunal member quite clearly states in the decision, after the expiry of the applicant’s last substantial visa, he took no action to lodge a renewal, nor did he approach the Department or anybody at the educational institution to discuss his situation, or the dilemma that he had in respect of a new application. Rather, he chose to remain in the community until detected by the authorities and placed in Detention [sic]. Only at this time did he commence the process of enquiry and subsequent application for the renewal of his visa status. I am also satisfied that the applicant has no prospect of success in respect to a challenge to the Tribunal decision. Consequently, the application should be dismissed.’

6                     This decision is the subject of the Notice of Appeal to this Court.

Appeal to this court

7                     The applicant raises the following grounds of appeal to this Court:

‘2.     The Honourable FM Lloyd Jones failed to find error of law, jurisdictional error and procedural fairness and relief under Section 39B of the Judiciary Act 1903.

 3.     The Honourable Magistrate did not take into account my ‘affidavits’ affirmed on 21 December 06 and 1 March 07 making his judgment.

 4.     The first respondent misled me with wrong information.

 5.     I will provide more details later on.’

Notice of objection to competency

8                     On 12 April 2007 the Minister filed a notice of objection to competency in the following terms:

‘The first respondent objects to the jurisdiction of this Court to try this appeal on the grounds that:

1.        The judgment of the Honourable Federal Magistrate Lloyd-Jones given on 8 March 2007 is interlocutory.

2.        Leave to appeal from an interlocutory judgment is required: s 24(1A) Federal Court of Australia Act 1976.

3.        No such leave had been sought or obtained.’

Submissions of the Minister

9                     The Minister submits that the judgment of Lloyd-Jones FM is an interlocutory judgment. Accordingly an appeal cannot be brought unless leave to appeal is granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). As leave has neither been sought nor granted to the applicant, the Minister submits that the appeal is incompetent.

10                  The Minister submits that the Court should not treat the Notice of Appeal as an application for leave to appeal because it would be futile to do so, since such an application has no prospects of success. The Minister submits that no error of principle has been identified, and that none is apparent in relation to the finding of Lloyd-Jones FM or that of the Tribunal. The Minister also submits that the decision of Lloyd-Jones FM is not attended by sufficient doubt to warrant its reconsideration by the Court and that Lloyd-Jones FM was correct to find that the application was incompetent. The Minister cites numerous authorities for this proposition including: MZXLM v Minister for Immigration and Citizenship & Anor [2007] FCA 291 at [9] per Tracey J; SZIVU v Minister for Immigration and Citizenship [2007] FCA 342 at [3] per Jessup J; Applicant S285 of 2003 v Minister for Immigration and Citizenship [2007] FCA 400 at [4] per Branson J; SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803 at [11] per Tamberlin J; SZBJP v Minister for Immigration and Multicultural Affairs [2006] FCA 1579 at [4] per Black CJ.

11                  The Minister refers to the Full Court decision in SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [57]-[67] which determined that the time limits provided by s 477 of the Act apply strictly.

12                  At the hearing before me the applicant appeared in person assisted by a Bengali interpreter. The applicant did not make any oral submissions or particularise his claims. Instead he only requested that he be granted more time in which to obtain a legal representative to present his case to the Court.

Findings

13                  In SZDGN v Minister for Immigration and Multicultural Affairs [2004] FCA 1543 Lindgren J referred to decisions which have held that a judgment dismissing a proceeding as incompetent is to be regarded as interlocutory for the purposes of appeal rights. In Weatherall v Satellite Receiving Systems (Australia) Pty Ltd and Others (1999) 92 FCR 101 at 103 [8] Burchett J referred to the categorisation of an interlocutory decision as follows:

‘Although the modern English decisions have turned to a different statement of the principle upon which the distinction between final and interlocutory orders is made, the case of an order based on the failure of a pleading to disclose a reasonable cause of action, or based on a finding that the proceeding is frivolous or vexatious, is still regarded as exemplifying an interlocutory order: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; [1956] 3 All ER 513, where the Court of Appeal, in a judgment delivered by Lord Evershed MR, stated (at 514):

              “[O]rders dismissing actions – either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action – have for a very long time been treated as interlocutory.”

The authority for this statement was accepted by the Privy Council in Strathmore Group Ltd v AM Fraser [1992] 2 AC 172 at 180, where their Lordships commented:

              “In each of the cited authorities the Court had to come to the conclusion that there was no issue proper to be determined. To allow a litigant to appeal would only encourage an unnecessary expenditure of time and money. If there was nothing to determine, there was nothing to appeal.”’

14                  The decision of Lloyd-Jones FM was predicated upon his conclusion that the application was out of time, and disclosed no reasonable cause of action. Accordingly the Court accepts the submission of the Minister that his Honour’s decision is interlocutory. Accordingly pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) leave is required to appeal such decision.

15                  Despite the fact that the applicant has not sought or been granted the requisite leave, and because he is not legally represented, the Court will consider the applicant’s Notice of Appeal as if it were an application for leave to appeal (see: Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (Administrator Appointed) & Australian Securities & Investment Commission [2004] FCAFC 303 at [17]).

Leave to Appeal

16                  The relevant considerations in granting leave to appeal are those cited by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399 wherein their Honours affirmed the principles laid down in Niemann v Electronic Industries Ltd [1978] VR 431. Their Honours stated the relevant considerations as follows:

‘… In Sharp v Deputy Commissioner of Taxation (Cth) (1998) 88 ATC 4,184 at 4,186 (and see also Merman Pty Ltd v Cockburn Cement Ltd [1989] 11 ATPR 49,951 at 49,954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991)) Burchett J stated the “major consideration[s]”, to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

…

In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”’

17                  The Full Court in Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (Administrator Appointed) & Australian Securities & Investment Commission [2004] FCAFC 303 at [19]–[20] said:

‘19.     As was pointed out in Weatherall at 104, citing Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 70 FCR 71 at 80-81 (“Lloyd Werft Bremerhaven”), where the practical effect of an interlocutory order is to determine, once and for all, the fate of the action, that fact must be taken into account as it may strongly favour the grant of leave. The Full Court in Lloyd Werft Bremerhaven observed at 80-81:

                       “In any event, having regard to the effective finality of his Honour’s disposition of the matter, if leave to appeal were required, it would be appropriate to grant it, provided we find substance in the appellant’s arguments.”

 20.     In MAS v Football Tasmania the Full Court similarly recognized that a judgment dismissing an application as disclosing no reasonable cause of action, though interlocutory, has an effective finality about it. That meant that it would be appropriate to grant leave to appeal from a judgment of that kind, and to extend time if necessary, if the applicant could point to any material suggesting that he might be able to make out a case against the respondent. However, in the particular circumstances of that case, the applicant could not pass even that low threshold. Accordingly, the Full Court dismissed his purported appeal as incompetent, and refused to grant an extension of time for the filing of an application for leave to appeal.’

18                  Section 477 of the Act relevantly provides:

‘(1)   An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

 (2)    The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a)   an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b)   the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

 (3)    Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.’

19                  The Full Court in SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [57]–[67] considered the language of s 477 of the Act with reference to statutory provisions similar to s 477 of the Act. Their Honours found that the time limits in s 477 of the Act were to be considered strict and at [67] Buchanan J said that there was ‘no doubt about the effectiveness or validity of the restrictions upon the jurisdiction of the Federal Magistrates Court imposed by s 477 of the Act.’

20                  The applicant’s application to the Federal Magistrates Court clearly failed to comply with the requirements of s 477 of the Act because it was filed 114 days after the Tribunal’s decision. Even if the application had been within time, the Tribunal was correct in its finding that the applicant’s visa application was out of time with the consequence that it could not grant any relief.

21                  The applicant did not satisfy the requirements of cl 572.211(3)(c)(i) of Schedule 2 of the Regulations, and in those circumstances the Tribunal was bound to affirm the delegate’s decision. Further the applicant has not been able ‘to point to any material suggesting that he might be able to make out a case against the respondent[s]’ (see: Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (Administrator Appointed) & Australian Securities & Investment Commission [2004] FCAFC 303 at [20]). The applicant has not been able to identify any purported error in the judgment of Lloyd-Jones FM. There is no evidence that the applicant has attempted to seek legal advice since the expiration of his last substantial visa more than two years ago. Accordingly, the Court rejects the applicant’s request for an adjournment of the hearing.

22                  Accordingly the Court will dismiss the notional application for leave to appeal and the Notice of Appeal.

23                  The Minister has sought an order for costs in the sum of $750.00. Since this is within a reasonable range for costs the Court will make such order.

Associate:

Dated:         23 April 2007