FEDERAL COURT OF AUSTRALIA

BZABK v Minister for Immigration and Citizenship [2012] FCA 774

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant, whom I shall call the applicant, is a citizen of China who first arrived in Australia on 20 April 2008 on a student visa. On 24 February 2011, he applied for a protection visa. A delegate of the first respondent (the Minister) refused that application on 14 April 2011. The applicant sought a review of the delegate’s decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate’s decision on 13 July 2011.

2    On 19 August 2011, the applicant filed an Application in the Federal Magistrates Court in the following form:

APPLICATION – Migration Act

The applicant applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 in respect of the migration decision specified on page 2.

…

Migration decision details (select box and insert details of the migration decision)

3    It will immediately be observed that the form which the applicant filed in the Federal Magistrates Court combined his application for an extension of time within which to make his application for constitutional writs with the substantive application which he made pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). This is not a criticism of the applicant. The form of his application complied with the requirements of the Federal Magistrates Court Rules 2011 (Cth) (the FMC rules). It was necessary for the applicant to apply for an extension of time because his application for judicial review (made in the combined form to which I have referred) was filed more than 35 days after the date when the Tribunal made its decision affirming the decision of the delegate to refuse to grant a protection visa to the applicant. In fact, the combined application was filed 37 days after that decision.

4    On 3 May 2012, a Federal Magistrate conducted a hearing of the applicant’s application filed on 19 August 2011 at the conclusion of which he pronounced the following orders:

THE COURT ORDERS:

1.    That the application filed 19 August 2011 be dismissed.

2.    That the applicant pay the respondent’s costs fixed in the sum of $4000.00.

5    The orders made on 3 May 2012 were entered on the same day.

6    Subsequently, without reference to the parties, it seems, and without explanation, the Federal Magistrate made further orders on 13 June 2012 which were entered on the same day. Those orders were in the following terms:

THE COURT ORDERS:

1.    That the application for an extension of time be dismissed.

2.    That the application filed 19 August 2011 be dismissed.

3.    That the applicant pay the respondent’s costs fixed in the sum of $4,000.00.

7    On 21 June 2012, again apparently without reference to the parties and without any explanation, the Federal Magistrate made and entered the following orders:

THE COURT ORDERS:

1.    That the application for an extension of time be dismissed.

2.    That the application filed 19 August 2011 be dismissed.

3.    That the applicant pay the respondent’s costs fixed in the sum of $4,000.00.

NOTATION: This order amends the original order made on 3 May 2012 and the order reissued on 13 June 2012.

8    The orders apparently made on 21 June 2012 also carried a note under the date signifying the date when the orders were made in the following terms:

AMENDED 21 JUNE 2012

9    Under the FMC rules, the Federal Magistrates Court may vary an order after it has been entered in certain circumstances (see r 16.05 of those rules). I do not know whether the Federal Magistrate acted under r 16.05 when he made the second and third sets of orders which he made in the present case. Neither of the subsequent sets of orders was expressed to be a variation of other orders. Neither set of orders contained an order setting aside earlier orders.

10    In substance, the June 2012 orders do not alter the substance of the orders which the Federal Magistrate intended to make as a result of the decision which he handed down on 3 May 2012. However, in my view, it is highly undesirable for a Federal Magistrate to issue repeated versions of orders said to flow from Reasons for Judgment published by him without indicating why this is occurring and ordinarily giving reasons for doing so.

11    In the meantime, on 18 May 2012, after the first set of orders was made and before the second set of orders was made, the applicant filed a Notice of Appeal in this Court by which he purported to appeal from:

... the whole of the judgment of the Federal Magistrates Court given on 03 May 2012 at BRISBANE.

12    Therefore, it is from the original orders made by the Federal Magistrate that the applicant has endeavoured to appeal. He has not sought to appeal from either of the subsequent sets of orders. For reasons which I will explain, it does not matter whether it is from the 3 May 2012 orders or the later versions that the applicant wishes to appeal. The result will be the same. I propose to deal with this matter upon the basis that the applicant seeks to overturn all of the orders made by the Federal Magistrate.

13    In his Notice of Appeal filed in this Court, the applicant relies upon the following grounds:

1.    That Federal Magistrate Burnett failed to consider the Second Respondent had bias against me and failed to consider my claims.

2.    That Federal Magistrate Burnett failed to consider the Second Respondent has ignored relevant considerations in making the decision.

3.    The Second Respondent failed to put to the applicant for comment on the independent country information.

14    By way of relief in this Court, the applicant claims constitutional writs quashing the decision of the Tribunal. He also seeks costs.

15    On 4 June 2012, the Minister filed a Notice of Objection to Competency dated 30 May 2012. The grounds of objection set out in that document are as follows:

Grounds of objection

1.    The judgment of Burnett FM given orally on 3 May 2012 refused to make an order under subsection 477(2) of the Migration Act 1958 (Cth) (“the Act”)

2.    Section 476A(33)(a) of the Act provides that despite section 24 of the Federal Court of Australia Act 1977 (Cth), an appeal may not be brought to the Federal Court from a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under section 477(2) of the Act.

3.    It is clear that the present Notice of Appeal is an attempt to seek to appeal from the Federal Magistrate’s refusal to make an order pursuant to section 477(2) of the Act. It is squarely within section 476A(3)(a) of the Act and is therefore incompetent.

4.    For this reason this Court has no jurisdiction to deal with the Notice of Appeal which has been filed.

5.    Repeated judgments of this Court have upheld the jurisdictional bar created by section 476A(3)(a) of the Act: SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7]; MZYNW v Minister for Immigration and Citizenship [2012] FCA 150 at [8]–[9]; SZOQJ v Minister for Immigration and Citizenship [2011] FCA 191 at [8]–[9]; MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449 at [4]; SZOCH v Minister for Immigration and Citizenship [2010] FCA 887 at [3]–[4].

16    These Reasons for Judgment determine the challenges to the competency of the applicant’s appeal mounted by the Minister. I also propose to address the consequences which flow from my decision on that question.

The Decision of the Federal Magistrate

17    It is necessary to say a little more about the decision made by the Federal Magistrate on 3 May 2012 (BZABK v Minister for Immigration and Citizenship [2012] FMCA 503) and the orders which he made in order to give effect to that decision.

18    The Reasons for Judgment delivered by the Federal Magistrate are organised by reference to a number of headings. Paragraphs 1 to 4 appear under the heading “Background”. In those paragraphs, the Federal Magistrate reviewed the applicant’s general background and the history of his applications to the Minister, to the Tribunal and to the Federal Magistrates Court. At [5]–[8], under the heading “Proceedings before the Tribunal”, the Federal Magistrate summarised the course of events before the Tribunal. At [9]–[13], under the heading “Extension of time to bring application”, the Federal Magistrate considered the question of whether or not an extension of time within which to bring his application should be granted to the applicant. After referring to s 477(2) of the Act and to the fact that the applicant was prima facie out of time, at [11]–[13] of his Reasons, the Federal Magistrate said:

11.    The applicant has made his application in writing and satisfies subclause (a). However, an issue arises in this case as to whether it is in the interests of the administration of justice to permit that extension. The relevant matters for consideration include the extent of the delay, the reasons for it, any prejudice to the respondent, the impact on the applicant if time is not extended, the interests of the public at large, any exercise of the court’s discretion, and the merits of the substantive application. I note that this list is not exhaustive.

12.    Perhaps of most moment in terms of this application is the question of the merits of the substantive application. In saying that, I note the excuse tendered by the applicant that he did not know he had to make his application within 35 days as being the only excuse proffered. However, for reasons which follow, following my consideration of the matter of the merits, this is a case where, in my view, there is no justification for the extension of time application, and the discretion to extend time ought to be exercised against the applicant.

13.    In essence, I do not consider the substantive application to have any merits. But even if I were wrong in respect of that matter, and although the extension required is only short, the applicant’s justification for his delay is plainly unsatisfactory. He has been assisted through the course of this matter by a ‘friend,’ and, as was evident in the hearing before me, the applicant has clearly no real idea about the nature of this application or the application generally. He simply wishes to stay in Australia.

19    I have omitted the references to footnotes in [11]–[13] of the Federal Magistrate’s Reasons for Judgment and the cases referred to in those footnotes.

20    The Federal Magistrate refused to make an order extending the time within which the applicant might apply for substantive relief because he considered the applicant’s prospects of obtaining such relief were next to hopeless and also because the applicant’s explanation for missing the filing deadline was unsatisfactory.

21    At [14]–[19], the Federal Magistrate then went on to consider what he described as the “Substantive grounds” of the applicant’s application for judicial review. In those paragraphs, the Federal Magistrate discussed those grounds and, in the course of his consideration of them, expressed his view that each of them failed.

22    At [20]–[22], the Federal Magistrate stated his conclusions. He did so in terms which did not hark back to the threshold question of whether or not he should grant an extension of time pursuant to s 477(2) of the Act. However, when the Reasons for Judgment of the Federal Magistrate are considered as a whole, it is quite clear that he intended to refuse to grant to the applicant an extension of time within which he might make his application for judicial review. That refusal was subsumed within the order for dismissal made on 3 May 2012 and spelt out more clearly in a separate order in the two sets of orders made in June 2012.

Consideration

23    Section 476(1) of the Act provides that the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Section 476(2) provides that the Federal Magistrates Court has no jurisdiction in relation to certain types of decision.

24    The applicant’s desire to avail himself of the availability of judicial review of the Tribunal’s decision was a matter which was plainly within the original jurisdiction of the Federal Magistrates Court pursuant to s 476(1) of the Act.

25    Section 477(1) and s 477(2) provide as follows:

477    Time limits on applications to the Federal Magistrates Court

(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 35 days of the date of the migration decision.

(2)    The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

26    Because his application to the Federal Magistrates Court was made more than 35 days after the decision of the Tribunal which he wished to challenge, the applicant was obliged to seek and to obtain an extension of time within which to make his application for judicial review pursuant to s 477(2) of the Act. This much was recognised in the applicant’s combined application which he made to the Federal Magistrates Court when he ticked the box on page 3 of that Application signifying that an extension of time was necessary.

27    I pause to observe that it is rather unfortunate that the important threshold question of whether or not an applicant requires an extension of time pursuant to s 477(2) of the Act is, in the combined form of Application utilised by the Federal Magistrates Court, a matter which appears well down the list of matters to be considered. It is, after all, an important threshold question which, if determined against the applicant, will bring to an end any hope that he has of obtaining any relief.

28    Even though the orders pronounced by the Federal Magistrate on 3 May 2012 and entered on the same day did not include a specific order that the applicant’s application for an extension of time was refused, it is clear from the Reasons for Judgment published by the Federal Magistrate, and from his subsequent endeavours to clarify the matter in the succeeding sets of orders which he subsequently made, that that application had been considered by the Federal Magistrate and had been refused.

29    The applicant in this Court seeks to appeal from both of the substantive orders ultimately made by the Federal Magistrate. That is to say, he has purported to appeal from the order refusing the extension of time pursuant to s 477(2) of the Act as well as the order by which his judicial review application was dismissed. He also challenges the costs order but only on the basis that, if he is successful in quashing the substantive orders, the costs order should be set aside as a consequence.

30    As to the applicant’s purported appeal from the first of these orders (the order refusing an extension of time), it is quite clear that the appeal is incompetent. It is incompetent because s 476A(3)(a) of the Act makes it so. That section provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under s 477(2) of the Act.

31    As far as the applicant’s attempt to appeal from the order dismissing the applicant’s substantive application for judicial review is concerned, some difficulty arises by reason of the Full Court decision in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 and in the other migration cases heard and determined at the same time.

32    In those cases, in the context of a challenge to certain aspects of the statutory scheme for offshore processing of refugees, the Full Court held that s 477(1) of the Act does not apply to an application for a quia timet injunction against an administrative decision of the Minister which was yet to be made. For that reason, in SZQDZ and in the other cases decided at the same time, the Full Court held that it was open to the appellants to bring their quia timet injunction applications outside the 35 day time limit specified in s 477(1) of the Act. The Full Court held that s 477(1) did not prevent the bringing of those applications in the Federal Magistrates Court even if they were brought more than 35 days after the date of the Tribunal’s decision. At [19], the Full Court said:

19.    As has been mentioned, each applicant did, in fact, make an application to extend the 35 day time limit under s 477(2) but each of those applications was unsuccessful. Indeed, it was because those applications had failed that the Federal Magistrates Court decided that the 35 day time limit specified in s 477(1) barred all the applicants’ claims to relief. The important point here is that the subsequent and consequential orders dismissing each proceeding were not made under s 477(2) for they were not orders either making or refusing to make an order extending time. Consequently, s 476A(3)(a) does not bar an appeal from those orders: this follows from the intractability of the proposition that an order dismissing a proceeding is not, on any view, an order making or refusing to make an order extending time.

33    Thus, the Full Court held that, in the cases before it, the orders made by the Federal Magistrates Court in each case dismissing the whole proceeding as a consequence of that Court’s refusal to extend time under s 477(2) of the Act were susceptible to being appealed to this Court.

34    In the section under the heading “Conclusions” in SZQDZ, at [51], the Full Court said:

51.    In our view the Federal Magistrates Court erred in dismissing, on a summary and not final basis, the substantive applications on the footing that they were out of time and therefore could not succeed. It follows that the answer to question 3(a) is that s 476A(3) does not prevent an appeal (or application for leave to appeal) to this Court from an order of the Federal Magistrates Court that makes or refuses to make an order under s 477(2) where s 477 did not apply to the application. That is because, in those circumstances (such as in these matters) the Federal Magistrates Court will not have exercised the jurisdiction under s 476(1) that the applicants invoked. Question 3(a) should be answered “No” and question 3(b) is unnecessary to answer.

35    Because the Full Court held that s 477(1) of the Act did not apply to the substantive application made by the applicants in the case before it, in any event, the remarks which I have quoted at [32] above concerning the capacity of an applicant to appeal from an order for dismissal consequent upon the grant or a refusal of an extension of time are obiter dicta. For my own part, I very much doubt that those remarks made by the Full Court adequately or correctly capture the full implications of a refusal by a Federal Magistrate to grant an extension of time to an applicant whose substantive application in the Federal Magistrates Court involves the exercise of the jurisdiction bestowed upon that Court by s 476 of the Act.

36    In my view, SZQDZ is distinguishable from the present case because the substantive application made by the applicant in the present case is clearly an application which was subject to the constraints laid down in s 477(1). By his application in the Federal Magistrates Court, the applicant expressly invoked the jurisdiction of the Federal Magistrates Court under s 476 of the Act.

37    Nonetheless, if I were to apply the reasoning of the Full Court set out at [19] of SZQDZ to the present case, I would be driven to conclude that the consequential order for dismissal of the applicant’s judicial review application made by the Federal Magistrate in the present case was capable of being the subject of a competent appeal. However, even if the applicant in the present case was entitled to bring an appeal from the order for dismissal of the whole proceeding, the appeal would inevitably fail because the application for judicial review which would be sought to be agitated on appeal would be hopeless for the reason that it was out of time. I have considerable difficulty in accepting that there could ever be any utility in entertaining or determining an appeal from an order for dismissal consequent upon a refusal to extend time under s 477(2) of the Act in respect of a matter which was covered by s 477(1) of the Act. Because the substantive application would, by definition, always be out of time, the appeal in respect of the dismissal of that application would always fail, irrespective of the merits of that application.

38    Indeed, one might wonder if, in a case such as the present, after the extension of time application made under s 477(2) has been refused by the Federal Magistrates Court, there is any substantive judicial review application still in existence in that Court which could conceivably be the subject of an order for dismissal. It must be remembered, after all, that a claimant for judicial review by the Federal Magistrates Court of a decision of a Tribunal which is amenable to review under s 476 of the Act must bring his claim within 35 days of the relevant decision. If he fails to do so, there is no application before the Court capable of engaging its jurisdiction. In those circumstances, the substantive application for judicial review should be dismissed for want of jurisdiction.

39    A problem very similar to the present problem was considered by Jagot J in SZQPN v Minister for Immigration and Citizenship [2012] FCA 424. In that case, after referring to SZQDZ and to SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 (a decision of Rares J), at [12]–[13], her Honour said:

12.    The present case directly raises for consideration the practical and legal consequences of the distinction which the Full Court explained in SZQDZ. I have before me an application for leave to appeal from the judgment and orders of the Federal Magistrates Court. There are two relevant orders of the Federal Magistrates Court, set out above. The first is an order which, in form and substance, is an order made under s 477(2) of the Migration Act refusing the application for the extension of time. It necessarily follows that no appeal may be brought to this Court from that order in accordance with the terms of s 476A(3)(a) of the Migration Act.

13.    The second order is that the application made on 7 September 2011 and amended on 24 October 2011 is dismissed as not competent. On the Full Court's reasoning it seems to be inevitable that this second order would be characterised as consequential upon or subsequent to the order under s 477(2) of the Migration Act, rather than an order under s 477(2) of the Migration Act. In the present case the Minister submitted to the contrary because order 2 of the Federal Magistrates Court is framed in terms as a dismissal of the application “as not competent”. As I understand the Minister’s position, this is a distinguishing factor from the reasoning of the Full Court in SZQDZ because it is plain from the face of order 2 that the application was dismissed by the Federal Magistrates Court as not competent by reason of the refusal of the application for the extension of time. I do not think that the inclusion of the words “as not competent” in order 2 can alter the characterisation of the order which would be consistent with the reasoning of the Full Court. Order 2 in form, and more importantly, in substance, is an order subsequent to or consequential upon the making of an order under s 477(2) rather than itself being an order under s 477(2) of the Migration Act. This conclusion leads me to the second of the Minister’s submissions.

40    At [14] of her reasons, her Honour went on to consider a second submission put by the Minister. The Minister submitted in that case that, once the extension of time was refused, as a necessary consequence, on appeal, there was no legal foundation whatsoever to impugn the order for dismissal made by the Federal Magistrates Court. Her Honour said that, although the appeal is not incompetent in this respect, the appeal would be doomed to fail with the consequence that there could be no proper basis for granting the application for leave to appeal in the case with which her Honour was dealing. There would be no point in granting leave to appeal if the resultant appeal was doomed to fail. The grant of leave to appeal in those circumstances would work a substantial injustice. Her Honour then dismissed the application for leave to appeal which was before her.

41    Similar reasoning underpinned the decision made by Katzmann J in SZQYP v Hannigan [2012] FCA 723.

42    In the present case, although technically speaking, if the reasoning of the Full Court in SZQDZ is to be followed, the appeal from the order made by the Federal Magistrate dismissing the applicant’s judicial review application is competent, it is nonetheless doomed to fail because the substantive application sought to be made in the Federal Magistrates Court was, by reason of the operation of s 477(1) of the Act, unable to be considered by the Federal Magistrates Court after the extension of time sought by the applicant in that Court had been refused.

43    In my view, once the extension of time application was refused, there was nothing left before the Federal Magistrate which could have been the subject of an order. In my view, the Federal Magistrate probably had no jurisdiction to make the second order. Alternatively, he may have had the power to dismiss the judicial review application for want of jurisdiction. The preferable course, however, would have been for the Federal Magistrate to have made an order dismissing the applicant’s application for an extension of time and an order for costs and left the matter there. There was no need to make an order dismissing the applicant’s application for judicial review.

44    In all the circumstances, the practical course in the present matter seems to me to be that the appeal, even if it is competent, should be dismissed because it is doomed to fail. I have power pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) to dismiss an appeal for that reason. I propose to do so in the present case.

45    Accordingly, the orders of the Court are:

(1)    That the appeal be dismissed.

(2)    That the applicant pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    27 July 2012