FEDERAL COURT OF AUSTRALIA

Serasinge v Minister for Immigration & Citizenship [2007] FCA 1676

MAHAGAMA VIDANALAGE SERASINGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID622 OF 2007

JESSUP J

29 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

2.                  The appellant pay the costs of the first respondent fixed in the sum of $3,053.00

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

REASONS FOR JUDGMENT

1                     On 12 July 2007, the appellant filed a Notice of Appeal from a judgment of the Federal Magistrates Court given on 26 June 2007 dismissing, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), an application for an order to show cause seeking to invoke review jurisdiction of that court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).  The appellant sought the review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 21 December 2006, in which it affirmed a decision made within the Department of the respondent Minister not to grant the appellant a 435 Sri Lankan visa for which he had applied in July 1997.

2                     The criteria for the grant of such a visa set out in clause 435.2 of the Migration Regulations include a requirement that the applicant in question have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit.  The Tribunal held – and it has not since been disputed by the appellant – that the appellant entered Australia after 1 November 1993.  The Tribunal held that, whatever other circumstances may be involved in the appellant’s case, he was ineligible for the grant of a visa of the kind for which he had applied, and the Federal Magistrate took the view that this was a clear case of the Tribunal acting within jurisdiction and correctly.

3                     By notice dated 18 July 2007, the respondent Minister objected to the competency of the appeal upon the ground that the decision of the Federal Magistrate was interlocutory, and that there was no appeal as of right by reason of the operation of s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  That notice having been filed, the burden of establishing the competence of the appeal lay upon the appellant by reason of O 52 r 18(2) of the Federal Court Rules.  I explained to the appellant that circumstance and I how it came to be that the respondent Minister submitted that the decision below was interlocutory.  He seemed to understand the difficulty he faced, and made no submissions in support of the competency of the appeal which he had lodged.

4                     The question whether the dismissal of an application to show cause by the Federal Magistrates Court in proceedings such as the one which came before the Federal Magistrate in the present case is interlocutory has been passed upon by this court on a number of occasions.  I mentioned four of them in my judgment in Szkcv v Minister for Immigration and Citizenship [2007] FCA 1201 at [3].  I then took the view that such an order was interlocutory, and nothing which has been put to me today causes me to depart from that view.  In essence, the view follows the judgment of the High Court in Re Luck (2003) 203 ALR 1, and the judgment of a Judge of this court in Rana v University of South Australia (2004) 136 FCR 344 to the effect that the summary disposition without trial of a proceeding adversely to the moving party should be regarded as interlocutory for the purposes of provisions analogous to s 24(1A) of the Federal Court Act.

5                     In the result, I propose to uphold the respondent’s objection to the competency of the appeal and to dismiss the appeal as incompetent.  Although it was not suggested that I should treat this proceeding as an application for leave to appeal, lest it be thought that the appellant, as a layperson with a limited understanding of English, has been disadvantaged by the way in which his proceeding has been disposed of, I should add that on the facts this seems to be a very clear case.  I gave the appellant the opportunity to identify for me any errors made by the Federal Magistrate, and he did not do so. 

6                     The appellant’s Notice of Appeal contains four broad grounds of an administrative law kind and, in relation to each of them, he informed me that they were concerned with the conduct and the decision of the Minister, including, I infer, the delegate on behalf of the Minister.  Nothing in those grounds of appeal, or in the way they were explained by the appellant today, was critical of the disposition of his application by the Federal Magistrate.  The jurisdiction of this court under s 24 of the Federal Court Act is an appellate one, and, in a case of this kind at least, is to be exercised only where error on the part of the primary decision-maker is demonstrated.  The appellant has not said anything which would justify a conclusion of error on the part of the Federal Magistrate, and from my own reading of his Honour’s reasons, it is manifest that he made no appealable error. 

7                     I shall order that the appeal be dismissed as incompetent.

Associate:

Dated:         29 October 2007