SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 759 (26 May 2005)

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

MIGRATION – appeal from Federal Magistrates Court – whether application for judicial review incompetent

MIGRATION – appeal – no error disclosed

SZAQL AND SZAQM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 415 of 2005

BRANSON J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 415 of 2005

BETWEEN:	SZAQL FIRST APPELLANT SZAQM SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 415 of 2005

BETWEEN:	SZAQL FIRST APPELLANT SZAQM SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	26 MAY 2005
PLACE:	SYDNEY

1 On 26 May 2005 I dismissed this appeal giving short ex tempore reasons for my decision. These are more detailed reasons for the judgment pronounced by me on that day.

2 By a notice of appeal filed on 18 March 2005 the appellants initiated an appeal from a judgment of the Federal Magistrates Court delivered on 23 February 2005. On that day Scarlett FM dismissed an application made by the appellants for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the respondent to refuse to grant them protection visas.

3 The reasons for judgment of the learned Federal Magistrate, and the orders made by his Honour, suggest that his Honour may have regarded the application made to that court as ‘incompetent’. Nonetheless, the respondent has not contended that the judgment of the Federal Magistrate is an interlocutory judgment from which an appeal may only be brought with leave (see s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). I accept that the respondent was right not to contend that his Honour’s judgment is interlocutory.

4 An order that dismisses a proceeding because it does not disclose a reasonable cause of action or because it is frivolous, vexatious or otherwise an abuse of the process of the court is an interlocutory order (Re Luck [2003] HCA 70; (2003) 203 ALR 1). If the appellants had, by their application to the Federal Magistrates Court, acknowledged that the decision of the Tribunal was not affected by any error of jurisdiction and was thus a ‘privative clause decision’ within the meaning of the Migration Act 1958 (Cth) (‘the Act’), their application would have been open to be dismissed as incompetent. The Federal Magistrates Court does not have jurisdiction to review a ‘privative clause decision’ within the meaning of the Act. An application so framed would not have disclosed a reasonable cause of action.

5 However, the appellants did not accept that the decision of the Tribunal was a ‘privative clause decision’ within the meaning of the Act. They asserted by their application that the decision of the Tribunal was affected by jurisdictional errors, including denials of procedural fairness and an absence of good faith. The Federal Magistrates Court thus has jurisdiction to hear and determine their application. It was obliged to determine, as indeed it did, whether the decision of the Tribunal was affected by jurisdictional errors as asserted by the appellants. I note incidentally that in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the High Court has held that when this Court is exercising the jurisdiction vested in it by s 39B of the Judiciary Act 1903 (Cth) with respect to matters in which a writ of mandamus or prohibition is sought against the Tribunal, the Tribunal is a necessary party to the proceeding. It must also be the case that the Tribunal is a necessary party when the Federal Magistrates Court is exercising the same jurisdiction under s 483A of the Act.

6 Having heard the appellants’ application the Federal Magistrate rejected their contention that the decision of the Tribunal was affected by jurisdictional errors. His Honour for this reason rejected their application for relief in respect of the Tribunal’s decision. On the finding made by him, the decision of the Tribunal was a ‘privative clause decision’. However, his Honour’s rejection of the appellants’ contentions did not render their application to the Federal Magistrates Court incompetent; it simply meant that the application failed because the appellants did not establish an essential element of the cause of action upon which they relied. For the same reason, the time within which the appellants were required to make their application for judicial review of the decision of the Tribunal was not limited by s 477(1A) of the Act. That subsection has application only in respect of a ‘privative clause decision’; an essential element of the applicant’s (unsuccessful) cause of action was that the decision of the Tribunal was not a ‘privative clause decision’.

7 The notice of appeal names ‘DIMIA’ as the respondent to the appeal. This reference has understandably been regarded as a reference to the Minister for Immigration & Multicultural & Indigenous Affairs rather than a reference to her Department. Were I persuaded that the appeal should be upheld this irregularity, and the irregularity referred to above concerning the failure to name the Tribunal as a respondent, would have to be rectified. However, for the reasons set out below I am not persuaded that the appeal should be upheld.

8 The appellants are a husband and wife. They are citizens of Indonesia who arrived in Australia on 8 August 1998. They are Christians of Chinese ethnicity. Only the husband advanced a substantive claim to be entitled to a protection visa. His wife and children claimed entitlement to protection visas as members of his family.

9 The Tribunal found the appellants to be credible witnesses. It accepted that they were apprehensive about returning to Indonesia because of the violence displayed towards Christians and ethnic Chinese during rioting in Indonesia in 1998. However, the Tribunal was not satisfied that they have a well-founded fear of persecution in Indonesia.

10 The Federal Magistrates Court was not satisfied that any reviewable error affected the decision of the Tribunal. As mentioned above, the Federal Magistrate dismissed the appellants’ application to that court.

11 The appellants’ notice of appeal does not identify any purported error made by the Federal Magistrate. Rather than identifying grounds of appeal the document reasserts the appellants’ fear of persecution and financial and other insecurity in Indonesia.

12 By the date on which the appellants’ appeal was listed for hearing in this Court the husband had left Australia. Evidence placed before the Court by the Minister established that the last visa held by him was a bridging visa E (Class WE) that does not entitle him to return to Australia. In the circumstances I was unable to be satisfied that the husband would be in a position to prosecute his appeal within a reasonable time frame or at all.

13 Nonetheless, I heard submissions from the wife in support of the appeal even though she had not made an independent claim to be entitled to a protection visa. She was not able to identify any error in the judgment of the Federal Magistrates Court. Rather she stressed her strong desire to remain in Australia and the fear that she holds about returning to Indonesia.

14 I have given careful consideration to the decision of the Tribunal and the judgment of the Federal Magistrates Court. Having done so I am unable to identify any basis upon which this appeal could succeed.

15 For these reasons on 26 May 2005 I dismissed the appeal of the husband in reliance on s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). To the extent, if any, that the appeal survived the above order, I dismissed it on the basis that no error affecting the judgment of the Federal Magistrates Court had been established.

16 I ordered that the wife pay the respondent’s costs fixed in the sum of $1500. I further ordered that the husband pay the respondent’s costs in the additional figure of $1500.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Appellants:	The Second Appellant appeared in person

Advocate for the Respondent:	S Burnett

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	26 May 2005

Date of Judgment:	26 May 2005

1.	The appeal be dismissed.
2.	The first appellant pay the respondent’s costs fixed in the sum of $1500.
3.	The second appellant pay the respondent’s costs fixed in the sum of $1500.