SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 (16 May 2008)

Last Updated: 22 May 2008

FEDERAL COURT OF AUSTRALIA

SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75

ADMINISTRATIVE LAW – judicial review – migration – protection visa – time limits on judicial review application – non-extendable – time limit exceeded – application dismissed as incompetent – application for leave to appeal – whether dismissal interlocutory or final – whether abuse of process – constitutional validity of time limit

APPEALS - appeal from dismissal of application for want of jurisdiction – whether decision final or interlocutory – whether leave to appeal required – criteria for grant of leave – utility – primary application abuse of process


Migration Act 1958 (Cth) s 477
Judiciary Act 1903 (Cth) s 78B
Federal Court of Australia Act 1976 (Cth) s 24

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 cited
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 discussed
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 cited
Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 cited
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 cited
Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512 cited
Farajvand v Minister for Immigration and Ethnic Affairs [2001] FCA 795 referred to
Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695 cited
Fisher v Minister for Immigration and Citizenship (2007) ALD 66 cited
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 cited
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 cited
Kabir v Minister for Immigration and Multicultural Affairs [2002] FCAFC 20 discussed and explained
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 cited
Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" (1979) 79 FCR 71 cited
Meredith v Commissioner of Taxation [2002] FCAFC 271; (2002) 125 FCR 308 cited
Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 cited
Minogue v Williams [2000] FCA 125; (1960) 60 ALD 366 cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 referred to
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 cited
Plaintiff S157/2000 v The Commonwealth (2003) 211 CLR 476 cited
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 cited
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589 cited
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 cited
Re Will of Gilbert (1946) 46 SR(NSW) 318 cited
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 cited
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 cited
Standard Discount Co v La Grange (1877) 3 CPD 67 cited
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 237 ALR 634 cited
SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 referred to
SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 85 referred to
SZECI v Minister for Immigration and Multicultural Affairs [2005] FCA 1202 cited
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 cited
SZJYV v Minister for Immigration and Citizenship [2007] FCA 731 cited
SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260 cited
Tampion v Anderson (1973) 3 ALR 414 cited
Walton v Gardiner (1993) 177 CLR 378 cited
Wang v Minister for Immigration and Ethnic Affairs [2000] FCA 1599; (2000) 179 ALR 1 referred to
Wilson v Official Trustee in Bankruptcy [2000] FCA 304 cited
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 422; (2004) 146 FCR 1 referred to






SZAJB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1482 OF 2007

SZABG AND SZABI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1388 OF 2007





FRENCH, ALLSOP AND TRACEY JJ
16 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE OF ORDER:	16 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1388 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZABG First Appellant SZABI Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent MINISTER FOR IMMIGRATION AND CITIZENSHIP Cross-Appellant SZABG First Cross-Respondent SZABI Second Cross-Respondent REFUGEE REVIEW TRIBUNAL Third Cross-Respondent
JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE OF ORDER:	16 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeals be dismissed as incompetent.

2. The appellants pay the first respondent’s costs of the appeal.

3. The cross-appeal be dismissed.

4. There be no order as to the costs of the cross appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1388 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAGB First Appellant SZABI Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent MINISTER FOR IMMIGRATION AND CITIZENSHIP Cross-Appellant SZABG First Cross-Respondent SZABI Second Cross-Respondent REFUGEE REVIEW TRIBUNAL Third Cross-Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

French J:

Introduction

1 In these two proceedings which were heard together, different parties brought an application for leave to appeal and an appeal respectively from judgments of the Federal Magistrates Court dismissing their applications for judicial review of decisions of the Refugee Review Tribunal (the Tribunal). Each application for judicial review was dismissed as outside the non-extendable time limit imposed by s 477 of the Migration Act 1958 (Cth) (the Act). Such a decision is interlocutory in character and an appeal against it cannot be brought without the leave of the Court. The appeal which was brought by SZAGB and SZABI must therefore be dismissed as incompetent. However, even had leave to appeal been sought in that case, it would be refused. In my opinion leave to appeal should also be refused in SZAJB.

2 In each case an argument was mounted that s 477 of the Act was invalid and, alternatively, ought to be read down so as not to impose an unextendable time limit upon the commencement of proceedings in the Federal Magistrates Court. The argument, although carefully presented, had little prospect of success. But even if successful it would have been of no benefit in these proceedings. For in each case the proceeding in the Federal Magistrates Court was a second round judicial review application seeking, in effect, to challenge afresh the original decision which had already been the subject of an unsuccessful judicial review proceeding and unsuccessful appellate proceedings. The Court will not entertain such misuse of its procedures. In the case of the application for leave to appeal, the application will be dismissed with costs. In the case of the appeal, the appeal will be dismissed as incompetent with costs.

SZAJB - procedural background

3 SZAJB is a citizen of Pakistan. He came to Australia on a visitors visa in February 2001. On 20 March 2001 he applied for a protection visa. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs declined his application and he was notified of that decision on 26 April 2001. On or about 29 May 2001 he made an application, through a migration agent, to the Tribunal for a review of that decision. On 28 February 2003 the Tribunal affirmed the decision not to grant him a protection visa. SZAJB then applied for judicial review of the Tribunal’s decision. His application was heard by Raphael FM on 20 February 2004 and on the same day was dismissed with costs.

4 SZAJB appealed to the Federal Court against the decision of the Federal Magistrates Court. The appeal was heard by Branson J on 8 June 2004 and was dismissed on that day with costs. Subsequently, SZAJB applied in the original jurisdiction of the High Court for orders nisi for writs of mandamus, certiorari and prohibition against the Minister and the Tribunal. The application was dismissed on 23 August 2004 by Heydon J. An application for special leave to appeal to the High Court from the judgment of Branson J was dismissed on 10 March 2006 by Hayne and Heydon JJ.

5 SZAJB filed a second application in the Federal Magistrates Court on 30 March 2006 again seeking judicial review of the decision of the Tribunal made on 28 February 2003. Raphael FM summarily dismissed the application on the Minister’s motion on the basis that it was out of time having regard to the provisions of s 477 of the Act. His Honour also noted that the claim appeared to be barred as res judicata because all of the issues to be tried between the parties had already been tried. SZAJB had told the Court that the reason he had filed the fresh proceedings was because of the manner in which he had been let down by his migration agent. He applied for leave to appeal from the second judgment of Raphael FM. That application was dismissed by Jessup J on 14 September 2006. An application for special leave to appeal against the decision of Jessup J was dismissed by Hayne and Crennan JJ on 24 May 2007.

6 On 19 June 2007 SZAJB filed a further application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. He applied for an order that the time for making the application be extended under s 477 of the Act. In short reasons for judgment dismissing the application on 9 July 2007 Scarlett FM said (at [2]):

It can clearly be seen that the application is out of time in that it was not filed within 28 days of actual notification of the Tribunal decision. Sub-s 477(1) of the Migration Act requires that an application for review be filed within 28 days of the actual notification. Transitional provisions in fact deem matters prior to 1st December 2005 to have been notified on 1st December 2005. Even so, the application is out of time. Item 42 of the Migration Litigation Reform Act makes that very clear. Thus, the Court’s power to extend the time for filing by 56 days under the provisions of sub-s 477(2)(a) of the Migration Act does not apply. The application for an extension of time would need to be made within 84 days of actual notification of the Tribunal decision.

7 His Honour pointed out that the last day on which the application could have been made was 23 February 2006. He accepted the submission by the solicitors for the Minister that by virtue of s 477 the Court had no jurisdiction to hear the application. He went on to refer to claims by SZAJB that he had been misled by his migration agent who was no longer a migration agent. However the fact was that he had sought review of the same Tribunal decision on two previous occasions. In setting out the history of the matter his Honour said (at [9]):

This is a matter where the Applicant is endeavouring to go around the circuit for the third time. Apart from the fact that the application is out of time and the Court has no jurisdiction, the application is a most blatant abuse of process. It will be dismissed....

8 The disposition was curious in that his Honour made two orders for dismissal on different bases. His orders were:

(1) The Application is dismissed as incompetent. (2) The Application is dismissed as an abuse of process.

(3) The Applicant is to pay the First Respondent’s costs on an indemnity basis fixed in the sum of $1,300.00.

(4) No further application for review of the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on 21 March 2003 is to be accepted for filing without leave of the Court.

9 On 30 July 2007 SZAJB filed an application for an extension of time to file and serve a notice of appeal from the judgment of Scarlett FM. A draft notice of appeal was filed with the application. In it SZAJB alleged that the Federal Magistrates Court had erred in law in determining that it did not have jurisdiction to review the matter and that it had failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. The Minister filed a notice of objection to competency of the appeal on the basis that it was a purported appeal from an interlocutory judgment and that such an appeal could not be entertained without leave.

10 SZAJB obtained legal representation. On 18 October 2007, having regard to argument set out in an affidavit sworn by the appellant on 30 July 2007, the Minister issued a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) and O 51, r 1 of the Federal Court of Australia Rules. The s 78B notice was forwarded by facsimile to the Attorney General for the Commonwealth of Australia and to the Attorneys-General for the States and Territories on 18 October 2007. By 26 October 2007 written responses had been received from the Attorney General for the Commonwealth and the Attorneys-General for the States of South Australia, Western Australia, Tasmania and the Northern Territory advising that they did not intend to intervene in the proceedings. As at 25 October 2007 no response had been received from the Attorneys-General for the States of New South Wales, Victoria and Queensland or for the Attorney-General of the Australian Capital Territory. In the letter to each of the Attorneys-General they were advised that the matter was listed for hearing on 29 October 2007.

11 The constitutional contention raised by SZAJB as appeared from his affidavit of 30 July 2007 was that s 477(1) of the Act is invalid. He relied upon the decision by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651. That decision held invalid s 486A, a time limit provision applicable to the High Court.

Grounds of proposed appeal

12 SZAJB was represented at the hearing of the application for leave to appeal by Dr Mantziaris acting pro bono for him pursuant to O 80 of the Federal Court Rules. At the hearing counsel provided the Court with a proposed substituted notice of appeal. Comprehensive written submissions on the validity and construction of s 477 of the Act were provided and counsel spoke to them.

13 The grounds of the proposed appeal by SZAJB were as follows:

1. His Honour erred in law by relying on Migration Act 1958 (Cth), s 477 to dismiss the appellant’s application for an extension of time, in that the time limits stated in section 477 are ineffective as a result of the decision of the High Court of Australia in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 14; 234 ALR 114.

2. His Honour erred in law by relying on section 477 of the Migration Act 1958 (Cth) to dismiss the appellant’s application for an extension of time, in that section 477 is invalid under Chapter III of the Constitution, by reason that it is an impermissible intrusion into the judicial power of the Commonwealth, as it directs the Federal Magistrates Court as to the manner and outcome of the exercise of its power to extend time limits and its discretion to award remedies otherwise available within the jurisdiction conferred under section 476 of the Migration Act.

3. His Honour erred in law by relying on section 477 of the Migration Act 1958 (Cth) to dismiss the appellant’s application for an extension of time, in that section 477 is invalid by reason that it offends the guarantee of due process under Chapter III of the Constitution by directing the federal judiciary to a differential treatment of applications for a review of migration decisions depending on whether the application for review was lodged in the original jurisdiction of the High Court conferred under section 75(v) of the Constitution, or within that ‘same original jurisdiction in relation to migration decisions’ conferred by section 476 of the Migration Act upon the Federal Magistrates Court.

4. His Honour erred in law by dismissing the appellant’s application for an extension of time as an abuse of process, as previous proceedings brought by the appellant had been dismissed on the basis of section 477 of the Migration Act, this section being ineffective or invalid, for the reasons listed in grounds 1-3 above.

Only one operative order of dismissal

14 The application was purportedly dismissed by two orders relying on different bases. The first order was based upon the finding that the application was incompetent. That is to say it was outside the jurisdiction of the Federal Magistrates Court because it was out of time. The second was that it was an abuse of process. The two orders could not operate together. Once the application had been dismissed for want of jurisdiction, no further order dismissing it for another reason could properly be made. The second "order" reflected no more than his Honour’s finding that, even if he had jurisdiction to entertain the application, it would have been dismissed as an abuse of process. It did not take effect as an order. The only operative dismissal was by the first order.

Whether leave to appeal is required from dismissal for want of jurisdiction

15 The applicant sought leave to appeal against the dismissal of the application. There is a question, agitated by the appellant in SZABG, whether dismissal for want of jurisdiction is an order against which an appeal lies as of right. The appellate jurisdiction of the Federal Court is relevantly defined in s 24 of the Federal Court of Australia Act 1976 (Cth) and includes, under s 24(1)(d) "appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than ... [immaterial exceptions]". Section 24(1A) then provides:

An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

The term "interlocutory" is not defined but is opposed to the term "final" as appears from the definition of "judgment" in s 4 of the Act as:

... a judgment, decree or order, whether final or interlocutory, or a sentence.

Thus judgments and orders are either final or interlocutory: see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443 (Windeyer J) citing Bramwell LJ in Standard Discount Co v La Grange (1877) 3 CPD 67 at 69-70.

16 The distinction can be "productive of much difficulty": Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248 (Gibbs CJ). The discrimen, broadly stated, is that a judgment is final if it finally disposes of the rights of the parties. Otherwise it is interlocutory: Hall 117 CLR at 439-440 (Taylor J, Owen J agreeing) and 443 (Windeyer J); Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225.

17 As was observed in the Full Court in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 there has been much debate about the taxonomy of particular kinds of judgments or orders as interlocutory or final. The leave requirement which depends upon the distinction is intended to restrict the extent to which decisions relating to matters of practice and procedure will be reviewed: Re Will of Gilbert (1946) 46 SR(NSW) 318 at 323 (Jordan CJ); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177.

18 Where an order, even though interlocutory, has the practical effect of finally disposing of a party’s rights then leave will usually be given to appeal against it. However the classification of a decision as final rather than interlocutory depends upon its legal character rather than its practical effect. In Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 the question was whether an order made for the production of documents by a non-party to proceedings was final or interlocutory. The Full Court, in characterising the challenged order as interlocutory stated that in applying the test of whether a judgment finally disposed of rights "the court must have regard to the legal rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings". It relied upon Carr 147 CLR at 248; Computer Edge Pty Ltd v Apple Computer Inc (1984) 58 ALJR 512. See also Meredith v Commissioner of Taxation [2002] FCAFC 271; (2002) 125 FCR 308 at [24]- [25].

19 A few months after the Full Court’s judgment in Brouwer 73 FCR 241, another Full Court in Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" (1997) 79 FCR 71, held that a decision setting aside the issue, in admiralty jurisdiction, of a writ in rem and dismissing the proceedings for want of jurisdiction was final and that leave was not required to appeal against it. In so doing the Court applied a criterion of "effective finality". It did not refer to the earlier judgment of the Full Court in Brouwer 73 FCR 241 although there was a common member of both Courts. Its criterion was derived from Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 at 38. In that case the Supreme Court of Victoria had dismissed an appeal from a decision of McGarvie J ordering that an action before him be forever stayed on the ground that the matters in question could have been litigated in earlier proceedings. Gibbs CJ noted that McGarvie J had stayed the proceedings on the basis of an estoppel. Because of that element he distinguished the case from the decision of the Privy Council in Tampion v Anderson (1973) 3 ALR 414 in which it was held that an order staying an action as an abuse of process was an interlocutory judgment. Gibbs CJ said (at [4]):

It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled.

Mason and Murphy JJ agreed. The term "as a matter of reality" found its way into the judgment of the Full Court in Zoya Kosmodemyanskaya 79 FCR 71. The Court formulated the criterion for characterisation of the order under appeal as (at 79):

Can it be said, "as a matter of reality", that the orders made here "finally dispose of the rights of the parties"?

The Court answered that question (at 80):

The reality, in our view, is that, when considered in context, the orders made finally disposed of the whole of the proceedings for want of jurisdiction.

The Court observed that in making his orders the primary judge spoke in his reasons for doing so of "completely adjudicating on the issues between the parties...".

20 Although it used language which might have suggested a "practical effects" test the substantive reasoning in the Zoya Kosmodemyanskaya 79 FCR 71 judgment appears to have been consistent with a legal finality test. The dismissal depended upon adverse findings of fact (albeit jurisdictional facts) central to the claim. Importantly, the decision did not and cannot be taken to have enunciated as a general proposition that where the reason for the dismissal of an action is want of jurisdiction, the judgment of dismissal is for that reason a final judgment.

21 Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 was a case in which proceedings were commenced in the High Court invoking the jurisdiction conferred on it by s 75(i) of the Constitution in matters arising under treaties. The proceeding was remitted to the Federal Court and there dismissed by Weinberg J on the basis that it did not involve a matter arising under a treaty. The dismissal was thus based on want of jurisdiction. The Full Court on appeal said (at [18]):

It is necessary for the applicant to apply for leave to appeal as the judgment of Weinberg J was interlocutory rather than final, notwithstanding the consequence of the decision for the applicant. Whether a judgment is final, as distinct from interlocutory, depends upon whether the judgment finally determines the rights of the parties to the proceedings: ...

The Court cited authority, including Brouwer 73 FCR 241. It continued (at [18]):

Although Weinberg J dismissed the applicant’s action or proceeding because of lack of jurisdiction, the judgment has not, in a legal sense, determined the rights of the parties that were in issue in that proceeding. Thus, the substantive claims of the applicant particularly in respect of s 47 of the Corrections Act, remain undertermined. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: ...

22 In Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695, Merkel J observed that there was arguably some tension between the two Full Court decisions in Zoya Kosmodemyanskaya 79 FCR 71 and Minogue [2000] FCA 125; 60 ALD 366. Fifita involved an appeal from a judgment of a single judge of the Court dismissing a purported application for an order of review on the basis that the Court had no jurisdiction to entertain it. The appeal was dismissed in the Full Court. There was no effective contradictor on the question of whether the first instance decision was interlocutory. Spender J said however (at [2]):

It is appropriate to note that the authorities suggest that the decision in this case is interlocutory and therefore leave is necessary.

He referred, inter alia, to Minogue [2000] FCA 125; 60 ALD 366 and added (at [8]):

In this case the dismissal of the proceedings on the ground that the Court had no jurisdiction to entertain the application of Ms Fifita means in a legal sense that her rights remain undetermined. It seems therefore that in these proceedings the decision sought to be appealed from is interlocutory and that leave would be required, and that in the absence of leave the appeal is incompetent. Because, however, the matter has not been the subject of a contradictor, it is preferable that the appeal not be dismissed on the technical ground that it is incompetent in the absence of leave, but that the substantial merits of the matter be looked at.

The appeal was dismissed on the basis that the decision at first instance was "incontrovertibly correct".

23 Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained.

Whether leave to appeal should be granted

24 Generally speaking an applicant whose application is dismissed for want of jurisdiction and who presents a serious issue for argument that the dismissal was erroneous could ordinarily expect to be given leave to appeal against the judgment.

25 The argument presented in this case was that s 477 of the Act was invalid. The argument relied upon Bodruddaza [2007] HCA 14; 228 CLR 651. In that case an application was made to the High Court in its original jurisdiction under s 75(v) of the Constitution for the issue of constitutional writs in relation to a decision of a delegate of the Minister refusing the grant of a residency visa. The Minister contended that the application to the High Court was out of time as beyond the maximum period of 84 days allowed by s 486A of the Act. The Court held that s 486A was invalid as it curtailed or limited the right and ability of the applicant to seek relief under s 75(v).

26 As it stood following amendment in 2005, in the light of Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, s 486A provided:

(1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction 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.

(1A) The High 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 High Court is satisfied that it is in the interests of the administration of justice to do so.

(2) Except as provided by subsection (1A), the High 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.

(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

27 The term "migration decision" is defined in s 5(1) thus:

migration decision means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision.

Section 5E defines "purported privative clause decision" thus:

(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an exercise of jurisdiction; in the making of the decision. (2) In this section decision includes anything listed in subsection 474(3).

The latter definition of decision includes the refusal of a visa.

28 In the joint judgment of the majority the High Court rejected a contention that s 486A was directed to conferring validity upon the ministerial decision. Their Honours said at [30]:

The text of s 486A indicates, as the above example illustrates, that it is directed not to the conferral of validity but to deny the competency of applications to this Court not commenced within the stipulated period. It is in this setting that the alleged invalidity of s 486A falls for decision on the special case.

Their Honours found it unnecessary to decide the case on the plaintiff’s proposition which was that constitutionally permissible legislative regulation of s 75(v) jurisdiction could never support a fixed time limit upon the making of an application to the Court. Their Honours said (at [53]):

It is sufficient to accept a less absolute proposition as follows. This is that a law with respect to the commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002.

29 The High Court held that s 486A fixed upon the time of actual notification of the decision in question and had the consequence that it did not allow for the range of vitiating circumstances which could affect administrative decision making. It was from that deficiency that the invalidity of the section flowed (at [57]):

The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit.

In that case the plaintiff was one day late apparently by reason of a failure on the part of his migration advisor.

30 Section 477 of the Act which was in issue in the present case, imposes time limits on applications to the Federal Magistrates Court in terms similar to those of s 486A in relation to the High Court. Section 477A, similarly worded, applies to proceedings in this Court.

31 Section 477 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.

(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

32 A point of immediate difference between the position with respect to s 477 and that with respect to s 486A is that s 477 operates upon a jurisdiction defined by statute pursuant to Chapter III of the Constitution. Section 486A operated directly upon the jurisdiction conferred upon the High Court by operation of s 75(v) of the Constitution. The considerations which underpinned the High Court’s finding that s 486A was invalid do not apply to s 477. Nevertheless submissions were made seeking to link the fate of s 477 to that of s 486A. The thrust of the argument was that s 486A was part of a legislative scheme imposing uniform time limits on all courts in which applications for judicial review of ministerial decisions could be commenced. After the decision in Bodruddaza [2007] HCA 14; 228 CLR 651 an application commenced in the High Court could be remitted to the Federal Magistrates Court even though it had been commenced outside the time limited for commencing that proceeding in the latter court. The same would be true of cases remitted from the High Court to the Federal Court. The dichotomy created by the invalidation of s 486A should spell invalidity for s 477 or at least that it should be read down. The reading down contemplated presumably would remove those elements of s 477 which would prevent the Federal Magistrates Court from extending time.

33 Counsel for SZAJB acknowledged that the finding by this Court that s 477 is invalid or should be read down would involve departing from previous decisions of the Federal Court:

1. SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260 (decided before Bodruddaza [2007] HCA 14; 228 CLR 651).

2. Fisher v Minister for Immigration and Citizenship [2007] FCA 591; (2007) 95 ALD 66 at [39]- [43].

3. SZJYV v Minister for Immigration and Citizenship [2007] FCA 731.

It was noted that in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 the validity of the section was assumed and was apparently not put in issue by the parties.

34 In SZICV [2007] FCAFC 39; 158 FCR 260, Buchanan J, with whom Besanko J agreed, observed that s 486A of the Act purported to limit the exercise of the original jurisdiction of the High Court in the same way as s 477 limited the jurisdiction of the Federal Magistrates Court and s 477A limited that of the Federal Court. He acknowledged that there was a challenge to the validity of s 486A then before the High Court in the Bodruddaza case and that if the issue for decision in SZICV [2007] FCAFC 39; 158 FCR 260 had been the same as that pending before the High Court, it might have been appropriate to await the High Court’s decision. He said (at [46]-[48]):

However, in my view, the argument fails at the threshold. It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision. In my view the imposition of such a limitation is the intention and effect of s 477. The relevant provisions must be read conformably and in a way which gives them appropriate work to do as an harmonious legislative scheme. The opening grant of jurisdiction in s 476(1) – viz "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution" is a statutory, not a constitutional, grant of power. It does not prevail over limitations expressed in the same statute unless that results from a proper construction of the provisions as a whole. Clearly it does not prevail over the exclusions in s 476(2) to which the grant of jurisdiction is expressed to be subject. Neither, in my view does it prevail, as a matter of statutory construction, over the limitations expressed in s 477. Whatever might be said about the potential clash between s 486A and the reservation of authority to the High Court under s 75(v) of the Constitution, I do not accept that Parliament intended that the operation of s 477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Constitution, that will not signify that the intention remains unrealised in relation to s 477.

In my opinion his Honour’s analysis was correct and the decision in Bodruddaza [2007] HCA 14; 228 CLR 651 was entirely consistent with that approach.

35 Prior to the introduction of the privative clause provision, s 474, there was a distinction between the jurisdiction of the High Court under s 75(v) and the jurisdiction of the Federal Court under Part 8 of the Act which was limited by the defined grounds upon which judicial review could be sought. That was a dichotomy intended by Parliament which had the no doubt unintended effect that a large number of applications were brought in the High Court on grounds including ostensible bias which were not available in the Federal Court. The mere fact of an inconvenient distinction between the jurisdictions of one court and that of another and resultant forum shopping does not spell invalidity for the legislation which produces that effect.

36 A separate limb of attack on s 477 involved the contention that it was an impermissible intrusion on the judicial power of the Commonwealth. If that proposition were correct then no federal jurisdiction could ever be subject to a non-extendable time limit. That is to say, the Parliament could not define federal jurisdiction by reference to actions commenced within a specified time limit. The argument is unlikely to succeed although it might require more extended consideration than is necessary in this case. That extended consideration is unnecessary because the grant of leave to appeal would, in my opinion, be futile. The learned magistrate was correct in holding that the proceedings were an abuse of the court’s process.

37 The history of the matter and of the proceedings associated with it has been set out earlier in these reasons. The Federal Magistrates Court, like the Federal Court, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589. The power of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing. As Lord Halsbury said in 1889:

My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. ... I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed. Reichel v Magrath [1889] 14 App Cas 665 at 668

The decision did not turn upon any finding of res judicata or issue estoppel. Although those doctrines could have been available, as Handley JA said in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 (at 202):

... the availability of a narrow ground for decision does not displace the actual ratio if the court decides the case on a wider basis ...

See also Walton v Gardiner (1993) 177 CLR 378 in which Mason CJ, Deane and Dawson JJ observed (at 393):

... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

38 The preceding cases and other authorities on the point were discussed in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699. As I said in that case (at [66]):

The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined.

39 It is sufficient to say that the proceedings brought in the Federal Magistrates Court and the subject of the present application for leave to appeal did constitute an abuse of process. No encouragement should be given to their continuance even if there were an arguable case about the validity or operation of s 477 of the Act. The success of that argument would not affect the character of the proceedings as an abuse of process. In my opinion therefore leave should be refused.

Conclusion

40 For the preceding reasons, the application for leave to appeal should be dismissed.

SZABG and SZABI – procedural background

41 The appellants who are husband wife, are citizens of Sri Lanka. They arrived in Australia on 16 August 1999. On 17 September 1999 they lodged an application for a protection visa with what was then the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused their application on 20 March 2000. On 3 April 2000 they applied to the Tribunal for review of that decision. On 22 September 2002 the Tribunal affirmed the decision not to grant them protection visas. The appellants then applied for judicial review of the Tribunal’s decision. On 16 June 2003 the application was dismissed with costs by Driver FM. They then appealed from his decision to the Federal Court by a notice dated 4 July 2003. However on 9 September 2003 they filed a notice of discontinuance. On 16 September 2003 they filed an application in the High Court of Australia for orders nisi for the issue of writs of prohibition and certiorari to quash the decision of the Tribunal. On 16 February 2004 Heydon J remitted their application to the Federal Court. On 21 October 2004 Jacobson J dismissed the application.

42 On 9 November 2004 the appellants lodged an appeal in the Federal Court against the judgment of Jacobson J. That appeal was dismissed on 13 May 2005 by a Full Court comprising Wilcox, Gyles and Downes JJ. The appellants were ordered to pay the Minister’s costs of the appeal. The appellants then applied to the High Court for special leave to appeal from the judgment of the Full Court. That application was dismissed by Gummow and Heydon JJ on 7 March 2006.

43 On 1 February 2007 a fresh application seeking judicial review under s 476 of the Act in respect of the decision of the Tribunal given in September 2002 was lodged. The application and affidavit in support of it acknowledged that actual notification of the Tribunal’s decision had occurred prior to December 2005. It was not in contest that if s 477 of the Act were legally effective and constitutionally valid, the application was incompetent.

44 On the Minister’s application the application was dismissed as incompetent on 26 June 2007 by Smith FM with an order that the appellants pay the Minister’s costs in the sum of $5,000.

45 On 17 July 2007 the appellants filed a notice of appeal in this Court against the decision of Smith FM. The Minister filed a notice of objection to competency on 23 July 2007. The objection was taken on the basis that the purported appeal was from an interlocutory judgment of the Federal Magistrates Court and that, pursuant to s 24(1A) of the Federal Court Act, the appellants required leave to appeal against the decision. The appellants argued that leave to appeal was not required as the decision appealed from was final.

Grounds of appeal

2. His Honour erred in dismissing the appellants’ application for a remedy under section 476 of the Migration Act 1958 (the "Act") as incompetent on grounds of strict time limits found in section 477 of the Act in circumstances where section 477 is constitutionally invalid because it "stultifies the exercise of the judicial power of the Commonwealth" (Abebe v Minister (1999) 197 CLR 510 at [134] per Gummow and Hayne JJ) by curtailing the constitutionally entrenched right to seek a review of an administrative decision.

Particulars

a. His Honour was bound to follow the recent Full Court decision in SZICV v Minister [2007] FCAFC 39.

b. However, SZICV did not consider the High Court decisions in Abebe and Bodrudazza v Minister [2007] FCA 14.

c. While Parliament may be acting within the power conferred by the Constitution whenever it authorises a federal court such as the Federal Magistrates Court ("FMC") to determine rights, duties liabilities of litigants which arise out of controversies that fall within paragraphs (i) – (v) of the section 75 of the Constitution, it nevertheless acts outside the Constitution by completely curtailing the right to any such remedy if not brought within the limitation period created by Parliament. [sic]

d. It is constitutionally impermissible for Parliament to so restrict entitlement to constitutionally guaranteed rights of review.

3. His Honour also referred in dismissing the appellants’ alternative statutory construction argument – viz, the structure of Div 2 of Part 8 of the Act reveals an inconsistency considering that one of the central provisions enacted to ensure uniform time limits was recently held by the High Court in Bodruddaza to be constitutionally invalid.

4. His Honour also erred in applying the test deeming the review application an abuse of process for reason of either res judicata or Anshun estoppel.

Particulars

a. His Honour stated that "none of the arguments provide the requisite ‘special circumstances’ or explain why it was now ‘reasonable’ to permit new grounds to be raised in fresh proceedings.

b. His Honour referred to medical evidence showing psychological disabilities suffered by one or both appellants.

c. In the preceding circumstances it was not unreasonable that the fresh grounds now sought to be raised were not raised in the original applications and amount to a special circumstance especially considering that the appellants’ [sic] were not legally represented before the most recent application.

d. The appellants reiterate and rely on the grounds of review adumbrated in the application filed on 1 February 2007 in the Federal Magistrates Court in Matter No SYG 315/2007.

The Minister’s cross appeal

46 The Minister filed a cross appeal on the single ground that:

His Honour erred by failing to order that the Application be dismissed as an abuse of process under rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), on the ground that the Applicants were precluded from raising the issues canvassed in the Application by principles of res judicata and/or Anshun estoppel.

SZABG and SZABI – factual claims and Tribunal disposition

47 The appellants are husband and wife. The husband is a Tamil from the province of Jaffna in the northern region of Sri Lanka. Prior to 1980 he was employed in the Sri Lankan Department of Irrigation as an irrigator. In 1980 he became a soil tester. This job involved him travelling around various areas in the north of Sri Lanka including Jaffna. He had a vehicle which was allocated to him. In the course of his work he claimed to have encountered many difficulties and to have been subject to considerable mistreatment by both the Liberation Tigers of Tamil Eelam (LTTE) and the security forces as the LTTE borrowed his vehicle which was a jeep in the late 1980s. In the early 1990s the police also demanded the use of his jeep. He claimed that in April/May 1993 he was detained at Thalady Camp by the army and accused of being an LTTE supporter. He said he was released after paying a bribe.

48 The appellant husband claimed that he was afraid to stay in Colombo whenever he visited there. He felt unsafe in his work given the threats from the army and the pressure from the LTTE. He had a friend in Brunei who arranged for him to get a work visa there.

49 In 1993 the appellant husband left Sri Lanka and stayed in Brunei working until August 1999. He said he returned to Sri Lanka in September 1995 to collect his wife and take her back with him to Brunei. He was unable to find her and left Sri Lanka returning to Brunei paying bribes at various points on his way out of the country. He was unemployed between October 1996 and February 1997 in Brunei but obtained further employment there in February of 1997. He had to return to Colombo to get a work visa and renew his passport. He stayed in Sri Lanka for a couple of weeks and then returned to Brunei in March 1997. He said he arranged for a visa for his wife to join him in Brunei.

50 When he finished his employment in Brunei in July 1999 the appellant husband returned to Sri Lanka and stayed at a lodge in Colombo. He believed he could not get back to his village because of demands for bribes and threats from the security forces. He decided to go to Australia to avoid the continued threats and demands for money from the police. He said in his application that he was afraid to return to Sri Lanka because he feared persecution from security forces who thought he was a supporter of the LTTE when he worked in the Irrigation Department. He said he came from the Jaffna area and did not think it was safe for him to live anywhere in Sri Lanka because he was a Tamil and had had some involvement in the LTTE.

51 The Tribunal found in its reasons for decision that the appellant husband and his wife had returned several times to Sri Lanka since the last time he claimed to have experienced mistreatment or harm in 1993. They had been able to enter the country and leave it without much difficulty. The Tribunal acknowledged that the appellant husband had had to pay bribes at various points but found that this was a common practice in Sri Lanka.

52 The Tribunal found that the Sri Lankan police and security authorities were not interested in the appellant husband immediately prior to his departure from Sri Lanka in 1993 and that he had no reason to believe that they would have any continuing interest in him. Nor was it satisfied on his evidence that there was any likelihood that the LTTE would seek him out or cause him harm as he had done nothing to antagonise or threaten them. On the contrary, he had assisted them when required to do so.

53 The Tribunal did not accept that the fact that the appellants were Tamils would cause them any special difficulty in their particular circumstances as they had not experienced such difficulties in past travel in and out of the country. Such difficulties as they did encounter were resolvable with the payment of a bribe.

The objection to competency

54 For the reasons stated in the cognate application of SZAJB the learned federal magistrate’s order dismissing the application as outside the time limits imposed by s 477 was interlocutory in character and leave was necessary in order to bring the appeal. The objection to competency therefore succeeds.

Abuse of process

55 The question whether leave could or should be granted to appeal against the decision of the Federal Magistrates Court in this case in the end turns, as in the cognate case, upon considerations of its utility. The constitutional and constructional arguments related to s 477 have already been mentioned. However even were leave to be granted to agitate those unpromising points, the application in the Federal Magistrates Court would properly be characterised as an abuse of process.

56 It was submitted on behalf of the appellants that the history of the litigation reveals that they have not had the benefit of legal representation at any stage of the litigation in their application for review of the Tribunal decision and that from at least 2 August 2002 the male appellant, who was the active participant in the litigation, had been diagnosed as "mentally traumatised" and as suffering from "depression and anxiety due to the unfortunate treatment that he had in the hands of political factions in Sri Lanka".

57 The appellants contended that the previous Full Court’s finding that there could not be a clearer case for the application of those principles of res judicata, issue estoppel and abuse of process was not fatal to the prospects of the present application. The appellants contended that the issues sought to be argued in the proceedings before the Federal Magistrates Court were distinct from those argued in the previous litigation sufficient to found a separate cause of action for the purposes of res judicata or issue estoppel. They also contended that it was not unreasonable not to have raised the present grounds of review, in particular with regard to the relocation principle, notwithstanding that these were relevant to the previous proceedings.

58 In my opinion these matters do not defeat the characterisation of the proceedings in the Federal Magistrates Court as an abuse of process. While there may have been circumstances personal to the appellants which had the result that they did not present their cases as fully as they ought to have been presented, this is not a basis upon which the litigation can be reopened. Had leave been sought, leave to appeal would have been refused in this case.

Conclusion

59 For the preceding reasons the appeal in SZABG and SZABI should be dismissed.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 16 May 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1388 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZABG First Appellant SZABI Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE:	16 MAY 2008
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJB Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

ALLSOP J

60 Before the Court are two proceedings in the appellate jurisdiction of the Court. In both proceedings, important Constitutional questions about the validity of the Migration Act 1958 (Cth), s 477(1) were argued.

61 Section 477 is in the following terms:

(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.

(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

62 The background to the arguments put in both proceedings was the decision of the High Court in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 14; (2007) 228 CLR 651, in which the High Court unanimously concluded that s 486A of the Migration Act was invalid because it curtailed or limited the right or ability of an applicant to seek relief under s 75(v) of the Constitution so as to be inconsistent with the place of that provision in the Constitutional structure.

63 Section 486A was in substantially identical terms to s 477, except that it specifically, and only, applied to the High Court’s original jurisdiction in relation to migration decisions. Its terms were:

(1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction 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.

(1A) The High 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 High Court is satisfied that it is in the interests of the administration of justice to do so.

(2) Except as provided by subsection (1A), the High 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.

(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

64 The essence of the submissions put in each of the proceedings can be taken from the introduction to the lucid and helpful submissions of Dr Mantziaris, who appeared for SZAJB after a request made of the Bar Association, pursuant to an order under Order 80 of the Federal Court Rules:

(a) As a matter of statutory construction, s 477 should be read down so that the conferral of ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution’ is just that, and should not be made subject to a time limit on applications which has been held to be invalid in Bodruddaza.

(b) Section 477 lacks constitutional validity, as it is an impermissible intrusion into the judicial power of the Commonwealth, directing the Federal Magistrates Court as to the manner and outcome of the exercise of its power to extend time limits and directing it to a differential application of the law in respect of like applications. Decisions validating time limits under ‘the old Part 8’ are distinguishable.

(c) Section 477 should be severed from the Migration Act, either because it is invalid, or because it is inextricably linked to s 486A by reason of the legislative scheme of the Migration Litigation Reform Act 2005 (Cth).

(emphasis in original)

65 Settled doctrine requires that Constitutional questions not be addressed unless it is necessary to do so. For reasons that are referable to the particular circumstances of the moving parties in these proceedings, both proceedings can be resolved without dealing with the Constitutional questions.

SZAJB

66 On 30 July 2007, SZAJB filed an application for an extension of time to file and serve a notice of appeal in respect of orders made by the Federal Magistrates Court on 9 July 2007. On that day, the Federal Magistrates Court made orders dismissing the application made by SZAJB as both incompetent and as an abuse of process, requiring the applicant to pay costs and preventing further applications being filed without leave of the Federal Magistrates Court.

67 If the orders made were final, no extension of time was required; the 21 days provided for by Order 52 rule 15(1) of the Federal Court Rules had not expired on 30 July 2007. If the orders made were interlocutory, leave was required and should have been sought within seven days: Order 52 rule 10(2A)(b). Thus, not only leave to appeal, but also an extension of time to file and serve an application for leave, would be required.

68 In support of the submission that the order for dismissal of the proceeding based on incompetency was interlocutory, the Minister relied on the authorities collected by Lindgren J in SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6]. Not all these cases concerned questions of a found lack of jurisdiction. Some certainly did: see in particular the Full Court in Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [18]; and Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695. However, as Merkel J said in Fifita (his Honour reserving the question for an occasion with a proper contradictor) there is some tension between Minogue v Williams [2000] FCA 125; 60 ALD 366 and the view of the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of the Ship ‘Zoya Kosmodemyanskaya’ (1997) 79 FCR 71 at 80, an authority to which the Full Court in Minogue v Williams was not referred. No real debate took place on this issue before this Court in either proceeding. I have had the advantage of reading in draft what French J has said on this issue in his reasons. His Honour’s reasons, if I may say so, clearly illuminate some of the difficulties in this area. For the reasons given by French J, I am prepared to accede to the proposition that the order in this case was interlocutory. The only additional comment that I would make is that at some point how The ‘Zoya Kosmodemyanskaya’ 79 FCR 71 fits into this analysis harmoniously may need to be addressed.

69 It is clear, however, that dismissal of the proceedings on the basis that it was an abuse of process is interlocutory in character: Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [18] (Full Court, Finn, Marshall and Goldberg JJ).

70 Thus, I agree with French J that leave to appeal was required.

71 In order to appreciate why the Federal Magistrate was correct to dismiss the application as an abuse of process, and why no leave to appeal should be granted, one needs to examine the history of the matter. I will hereafter refer to SZAJB as the appellant. The appellant arrived in Australia in February 2001 as a visitor. On 20 March 2001, he applied for a protection visa. On 26 April 2001, a delegate of the Minister refused the application. On 29 May 2001, the appellant lodged an application for review by the Refugee Review Tribunal (the "Tribunal") of that decision. On 28 February 2003, the Tribunal made a decision affirming the delegate’s decision not to grant a protection visa. The Tribunal handed down the decision on 21 March 2003.

72 Prior to the Tribunal reaching its decision, it examined the appellant’s file and on the basis that, without hearing from him, it could not make a decision favourable to him, invited him to attend a hearing, telling him of these matters in the letter of invitation. The Tribunal recorded that the appellant was told that if he did not attend the hearing or seek to postpone it, a decision might be made without further notice. The applicant did not attend the hearing. The Tribunal made a decision on the material before it. In its reasons, the Tribunal set out some of the difficulties in the appellant’s material, such as the generality of his claims and the lack of corroborating material. After identifying such matters, the Tribunal said the following:

These are all matters which it would have been possible to discuss at a hearing before the Tribunal but as referred to above the Applicant did not respond to the letter inviting him to come to a hearing. I am unable to be satisfied on the evidence before me that the Applicant had a high political profile as a member of the PML in Pakistan, as he claims, that he was arrested because of his support for the PML in September 1999 as he claims, or that there is a real chance that, if he returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted by reason of his political opinion. This being the only claim that he made I am unable to be satisfied on the evidence before me that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.

73 From these reasons, it can be concluded with confidence that the reason for the decision (for the purposes of the Migration Act 1958 (Cth), s 424A) was the lack of information before the Tribunal, leading to a state of lack of satisfaction about matters in Art 1A(2) of the Refugees Convention.

74 The appellant sought relief in the Federal Magistrates Court in proceeding SZ 540 of 2003. The reasons for judgment of Raphael FM ([2004] FMCA 86) reveal that the appellant blamed his migration agent for what had occurred, in particular that he had not been told about the Tribunal hearing date. It should be noted, however, that Raphael FM in his reasons said that on 23 December 2002, the Tribunal had sent a letter to the appellant at the address that he had recently given to the Tribunal. Further, the appellant’s explanation to Raphael FM was consistent with his knowing of the hearing, as was what the appellant said to Branson J on appeal (see below). After carefully examining all the facts, Raphael FM concluded that there had been no failure to afford procedural fairness. He also rejected an application for a six month adjournment for the appellant to collect documents in Pakistan to corroborate his statement that had been given to the Tribunal. The application was dismissed on 20 February 2004.

75 On 8 June 2004, Branson J dismissed an appeal from these orders. In her reasons, Branson J said the following:

Today the appellant has told me that he feared that if he attended the Tribunal hearing he would be detained. He has further told me that he now knows that that is not the case and he requests a second opportunity to attend a Tribunal hearing. On this appeal from the decision of the Federal Magistrate it is not open to me simply to give the appellant a second chance to attend a Tribunal hearing.

[emphasis added]

76 On 23 August 2004, Heydon J dismissed the appellant’s application for an order nisi in the High Court’s original jurisdiction.

77 On 10 March 2006, Hayne and Heydon JJ dismissed the appellant’s application for special leave from the orders made by Branson J, dismissing the appeal from the Federal Magistrates Court. On this application, the appellant was represented by Mr Perram and Mr Foreman, of counsel.

78 Twenty days later, on 30 March 2006, the appellant filed another application in the Federal Magistrates Court. On 29 June 2006, Raphael FM dismissed this application on a motion brought by the Minister for summary dismissal. His Honour gave two reasons: first, the application was outside the 84 days provided by the Migration Act, s 477(1) and (2) and thus the Court had no jurisdiction; and, secondly, that the claim faced res judicata problems illustrated by the decision of the Full Court in SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 85. Raphael FM also said the following about the appellant’s explanation as to why he filed another application:

Before me today the applicant told me that the reason that he had filed the current proceedings was because of the manner in which he had been let down by his migration agent. Unfortunately for him this is not a new argument. I know that I dealt with the problems relating to the migration agent in paragraph 13 of my judgment of 29 February 2004 where I referred to M172 v the Minister [2004] FMCA 23 and B41 of 2003 [2004] FCA 30.

79 On 14 September 2006, Jessup J in this Court dismissed an application for leave to appeal against these orders. In his reasons, Jessup J said:

As to the second basis upon which the application before the Federal Magistrate was dismissed, I agree with him that the jurisdictional challenge which the applicant then sought to make to the decision of the Tribunal in March 2003 had already been made and had been disposed of by a binding judgment in favour of the Minister. The cause of action embodied in the present application in the Federal Magistrates Court has been determined by the earlier judgment and no longer exists. Accordingly, this too was a proper basis upon which the application in the present case might have been dismissed.

...

In the present case it is clear beyond argument that the judgment of the Federal Magistrate given on 29 June 2006 was correct, and it follows that I have not been persuaded that the judgment was attended by any doubt, much less sufficient doubt to warrant it being reconsidered by the court.

80 On 24 May 2007, Hayne and Crennan JJ dismissed the application for special leave that the appellant brought in respect of the orders made by Jesssup J.

81 On 19 June 2007, the appellant filed yet another application in the Federal Magistrates Court. The grounds of the application were stated to be:

1. The decision is not a decision with the meaning of the Migration Act 1958

2. The decision does not bar the applicant under s 48B of the Migration Act 1958

3. The decision of the Tribunal now falls under the application of SZEEU and SAAP

82 The appellant sought an extension of time under s 477. But, if s 477 is valid, no extension could be given since it was outside the 84 day period provided for by s 477(1) and (2).

83 The affidavit of the appellant in support stated the following:

The decision by the RRT now falls within the application of High Court decision in the matter of SAAP, where the court made new ruling about the definition of s 424A of the Migration Act. Although the matter was heard by the court once already the decision of SAAP was in force when the matter was in the Federal Magistrate Court and I could not make the argument.

I would like to seek leave from the court to make this new line of argument on the basis that at the time of my matter before Federal Magistrates Court the decision of SAAP was not in force, and therefore there was a miscarriage of justice. I believe that it is important for the shake [sic] of natural justice that my application be allowed for filing. RRT file (NO1/28866) attached.

84 As is clear, no articulated basis for the possible application of s 424A was identified. In the light of the basis for the Tribunal’s decision, being the lack of satisfaction based on absence of knowledge, it is difficult to conceive of any possible basis: cf SZEZI v Minister for Immigration and Multicultural Affairs [2005] FCA 1195 at [26]- [29]; and SZECI v Minister for Immigration and Multicultural Affairs [2005] FCA 1202 at [24].

85 It was this application that was dealt with by Scarlett FM below. His Honour concluded that the application was an abuse of process. His reasons can be seen in [7]-[9] of his reasons, after he had recounted some of the history:

The Applicant today of course has raised concerns about his migration agent, but he has sought to argue that on two previous occasions. In the proceedings before Raphael FM on 29^th June 2006, SZAJB v Minister for Immigration & Anor [2006] FMCA 964, his Honour said at [7]:

Before me today the applicant told me that the reason that he had filed the current proceedings was because of the manner in which he had been let down by his migration agent. Unfortunately for him this is not a new argument. I know that I dealt with the problems relating to the migration agent in paragraph 13 of my judgment of 29 February 2004 where I referred to M172 v the Minister [2004] FMCA 23 and B41 of 2003 [2004] FCA 30.

The Applicant has raised this argument a third time, although I note it was not mentioned in his supporting affidavit.

In any event, on 29^th June 2006 Raphael FM dismissed the application with costs. The Applicant then brought an application for leave to appeal on 20^th July 2006 in the Full Court of the Federal Court. On 14^th September 2006 Jessup J dismissed that application with costs. Again the Applicant sought special leave to appeal to the High Court of Australia, this time on 11^th October 2006. That application for special leave to appeal was dismissed by Hayne and Crennan JJ on 24^th May 2007. The Applicant then commenced these proceedings.

This is a matter where the Applicant is endeavouring to go around the circuit for the third time. Apart from the fact that the application is out of time and the Court has no jurisdiction, the application is a most blatant abuse of process. It will be dismissed. I note that the reason why this application has been able to be dealt with at the First Court Date is that the solicitors for the Respondent Minister, and in particular Ms Megan Palmer of Sparke Helmore Lawyers, acted extremely promptly in filing a Response setting out all of these points and in fact filing an outline of submissions a week before the matter was due to come to Court. This promptness in dealing with an obvious abuse of process is to be commended.

86 The affidavit of the appellant filed in this Court is no more illuminating as to any possible application of s 424A.

87 Leaving aside res judicata, plainly all of the issues sought to be raised (even assuming, contrary to what appears plain, that there is a valid issue under s 424A) properly belonged in the earlier proceedings, absent special circumstances: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598-602; and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 422; (2004) 146 FCR 1 at 17-18 [37]- [38].

88 There are no special circumstances. The application is manifestly an abuse and was rightly characterised as such. Thus, even if s 477 is bad, as asserted in the submissions, on the construction and Constitutional issues, the Federal Magistrate was correct to characterise the application as an abuse. The application for leave to appeal should be dismissed with costs.

89 For those reasons, the questions of construction of s 477 and under the Constitution do not arise.

SZABG AND SZABI

90 This proceeding arises from a notice of appeal filed on 17 July 2007 against orders of the Federal Magistrates Court (Smith FM) made on 26 June 2007. If the orders were final, the notice of appeal was filed in time.

91 There was some debate in writing in this proceeding about the question whether the order was final or interlocutory, but it did not engage the issue beyond counter-assertion. For the reasons expressed earlier, I am prepared to conclude that the decision below was interlocutory in character.

92 The application before the Federal Magistrates Court was filed more than 84 days after notification of the decision of the Tribunal. Given the date of the decision (16 October 2002), the Federal Magistrate gave effect to the transitional provisions in the Migration Legislation Reform Act 2005 (Cth) and took 1 December 2005 as the date of deemed actual notification. Given the way that it is proposed to dispose of the appeal, it is unnecessary to examine whether Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 required another approach to be taken.

93 The basis for the dismissal of the application was that the Federal Magistrates Court had no jurisdiction by reason of the Migration Act, s 477. That conclusion is attacked on the same basis as the attack was made in SZAJB – on the reading down of s 477 and on the asserted Constitutional invalidity of s 477. The Federal Magistrate also examined the history of the appellants’ claims and litigation and came to the view that had the application been within jurisdiction, he would have dismissed it as an abuse of process.

94 For the reasons expressed below, this was a sound conclusion and one which provides a basis for the dismissal of the appeal without the need to address the construction and Constitutional questions.

95 The appellants are husband and wife who are Sri Lankan nationals. They arrived in Australia on 16 August 1999. On 17 September 1999, they lodged an application for protection visas. On 20 March 2000, a delegate of the Minister refused to grant the visas. On 3 April 2000, the appellants applied to the Tribunal for review of that decision. The appellants attended a hearing on 17 July 2002 at which they gave oral evidence. On 22 September 2002, the Tribunal decided to affirm the decision of the delegate, handing down the decision on 16 October 2002. After an apparently careful review of the evidence of the applicants and detailed country information, the reasons of the Tribunal were expressed as follows:

...The Tribunal is not satisfied that the Applicants face a real chance of persecution upon return to Sri Lanka or in the reasonably foreseeable future.

The Tribunal accepts that the Applicant husband has experienced persecution as set out in the application for a protection visa and statutory declaration dated 17 September 1999 and in the Applicant husband’s testimony before the Tribunal. However, the Tribunal finds that the nature of the harm and mistreatment he received from the security forces and the use to which he and his vehicle were put by the LTTE many years ago when he was actively employed in the field are most unlikely to occur again if he returns to Sri Lanka.

The Tribunal accepts that the Applicants have a genuine fear of persecution on return to Sri Lanka, but the Tribunal is not satisfied, on the evidence, that there is a real chance that they will be persecuted on return to Sri Lanka or in the reasonably foreseeable future.

The Tribunal finds that the Applicant husband last experienced mistreatment or harm in 1993, before he left Sri Lanka to work in Brunei. The Tribunal finds that the Applicant husband the Applicant wife have returned several times to Sri Lanka and have been able to enter the country and leave it without much difficulty. The Tribunal acknowledges that the Applicant husband has had to pay bribes at various points, but the Tribunal finds that this is a common practice in Sri Lanka.

The Tribunal finds, on the evidence, that the Sri Lankan police and security authorities are not interested in the Applicant husband, that they were not interested in him immediately prior to his departure from Sri Lanka in 1993 and that he has no reason to believe that they might have any continuing interest in him. As far as any possible interest the LTTE may have in the Applicant husband, the Tribunal is not satisfied, on his evidence, that there is any likelihood that the LTTE would seek him out or cause him harm as he has done nothing to antagonise or threaten them. On the contrary he has assisted them when required to do so.

The Applicants’ preparedness to return to Sri Lanka and their capacity to enter and depart the country without impediment, apart from having to pay bribes at various points, satisfied the Tribunal that the Sri Lankan authorities have no interest in the Applicants at all. The Tribunal does not accept that the fact that they are Tamils will cause them any special difficulty in their particular circumstances as they have not experienced such difficulties in past travel in and out of the country, and such difficulties as they did encounter were resolvable with the payment of a bribe.

The Tribunal accepts that the Applicants may face routine questions at the airport on return to Sri Lanka, but that they will have no difficulty satisfying the authorities as to their long stay in Australia, which on the Applicant husband’s record of working overseas, should convince security officials that their return carries no security implications for them.

The Tribunal notes articles in the BBC of 30 August 2002 and 16 September 2002 and 18 September 2002 regarding the peace talks between the Sri Lankan Government and the LTTE in the Thai coastal town of Sattahip. The Tribunal accepts that, notwithstanding some optimism being expressed about the progress with the talks, the situation in Sri Lanka is largely unsettled and volatile and there are many political and social problems that are obstacles in the way of a lasting resolution of the long conflict. However, the Tribunal is satisfied that the Applicants can safely return to, and reasonably re-establish themselves in, Sri Lanka.

The Tribunal is not satisfied, on all the evidence, that there is a real chance of the Applicants being persecuted for a Convention reason by the Sri Lankan Government or the LTTE on return to Sri Lanka or in the reasonably foreseeable future. In the circumstances, the Tribunal is not satisfied that the Applicants have a well-founded fear of persecution under the Convention.

96 On 7 November 2002, the appellants sought judicial review of the Tribunal’s decision. The application asserted, without any particularity, that the Tribunal had "exceeded its jurisdiction" and "constructively failed to exercise its jurisdiction". The application was heard on 16 June 2003 by Driver FM. His Honour dismissed the application. At the hearing before Driver FM, the appellants handed up written submissions that asserted legal errors in the Tribunal’s decision: (a) a lack of procedural fairness by not being given an opportunity to comment on some of the country information; and (b) that the Tribunal failed to deal with an element of the appellants’ claims. The Federal Magistrate, after rejecting both arguments, examined the decision to ascertain whether there was any other basis for review. He found none, other than an evident typographical error.

97 On 4 July 2003, the appellants filed a notice of appeal. The grounds were directed to the rejection of the two arguments pressed in the written submissions.

98 On 9 September 2003, the appeal was discontinued by consent.

99 On 16 September 2003, the appellants filed draft orders nisi in the High Court. The particulars asserted that they had been misled in that the Tribunal had not looked at the Departmental file, having said that it had; and that procedural fairness had not been afforded by not being given an opportunity to answer country information.

100 On 16 February 2004, Heydon J made an order remitting the proceeding to the Federal Court. On 21 October 2004, the application came on for hearing before Jacobson J. On that day, his Honour made orders that the application be dismissed.

101 An appeal was filed on 9 November 2004, and was heard by Full Court (Wilcox, Gyles and Downes JJ on 13 May 2005). The Full Court stated [2005] FCAFC 133 at [4]- [8]:

On 7 November 2002 the appellants brought a proceeding in the Federal Magistrates Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking certiorari prohibition and mandamus against the Minister and the Tribunal. On 16 June 2003 Driver FM dismissed the application and gave detailed reasons for that decision. An appeal against that decision was discontinued. On 16 September 2003 the current proceeding was commenced in the High Court. The relief sought is indistinguishable from that sought in the proceeding in the Federal Magistrates Court.

Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process. There could not be a clearer case for the application of those principles (including Anshun estoppel). There is no hint of any basis for avoidance of them. It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]–[39] (special leave refused 4 February 2005). This proceeding is a transparent attempt to relitigate the same matter that was previously litigated. The attempt should not have gone as far as it did.

Jacobson J took the course of considering the merits of the attack upon the Refugee Review Tribunal’s decision afresh. In our opinion, that course was unduly favourable to the appellants. In the event, all grounds of attack were rejected in a reasoned decision.

The appellants again seek to argue the merits of the matter today. In our opinion, no appealable error has been identified in the reasons of Jacobson J. We cannot improve upon those reasons for rejecting the claims of the appellants.

The appeal is dismissed with costs.

102 On 5 August 2005, the applicants filed an application for special leave in the High Court from the Full Court’s orders. On 7 March 2006, the High Court (Gummow and Heydon JJ) made orders dismissing the application.

103 On 1 February 2007, the application that was dealt with by Smith FM was filed.

104 In these earlier proceedings, the following was asserted:

(a) that the Tribunal exceeded its jurisdiction, without any particulars whatsoever;

(b) procedural unfairness (in particular, failure to provide an opportunity to comment on country information);

(c) failure to deal with an "element" of the appellants’ claims (ie that the husband had had to pay bribes);

(d) procedural unfairness again (in particular an argument based on Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601), and another argument that country information was not disclosed; and

(e) another unspecified allegation of legal error going to jurisdiction.

105 In the present proceeding, the asserted jurisdictional errors focussed on:

(a) an asserted failure to address relocation properly;

(b) the making of a critical finding said not to be open on the evidence;

(c) an asserted failure to apply the correct text for persecution;

(d) an asserted failure to have regard to whether the appellants’ claims about extortion and bribing raised in their circumstances a ground of Convention persecution;

(e) an asserted failure to deal with an integer of the clams; and

(f) making a finding said to be illogical and not open on the evidence.

106 All of these issues, whether raised before or not, "properly belonged to the subject of the earlier proceedings" and in the absence of special circumstances, the Federal Magistrate rightly concluded that they were not to be permitted to be propounded: Wong [2004] FCA 422; 146 FCR 1 at 17-18 [37]- [38] and Anshun [1981] HCA 45; 147 CLR 589.

107 There are no sufficient special circumstances here and Smith FM was correct so to conclude. The fact that (if correct) the appellants have not had the benefit of legal assistance hereto is not a basis to allow these points to run now.

108 The asserted present depression and anxiety in the husband is likewise not a special circumstance.

109 The asserted relocation error is misconceived. The Tribunal did not rely on relocation. If the point is relevant, the more recent cases (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 237 ALR 634) are only an elaboration of pre-existing principles: see for example Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.

110 The appellants raise, supposedly as new, the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, delivered on 9 December 2003. This was decided 10 months before the hearing before Jacobson J. In any event, as the reasons of the High Court made clear (see in particular 216 CLR at 491-492 [48]) the point was not a new one. (See also in this respect Wang v Minister for Immigration and Ethnic Affairs [2000] FCA 1599; (2000) 179 ALR 1 and Farajvand v Minister for Immigration and Ethnic Affairs [2001] FCA 795 at [25].) The Full Court in S395 (Kabir v Minister for Immigration and Multicultural Affairs [2002] FCAFC 20) had rejected the appeal on the basis that the issue was not before the Tribunal. This had been the approach of the trial judge also. A majority of the High Court disagreed with that and then developed the point in the context of homosexuality. The approach of the trial judge and the Full Court (incorrect, according to the majority) that the issue did not present itself at the Tribunal can be clearly seen in the dissenting judgment of Gleeson CJ: 216 CLR at 478-482 [1]-[15].

111 This is an attempt to relitigate a controversy that has been legitimately finally quelled. The application, if within jurisdiction, should be dismissed by application of Anshun [1981] HCA 45; 147 CLR 589 and as an abuse of process. The Federal Magistrates Court was correct so to characterise it.

112 In the circumstances, leave to appeal is necessary and would be refused. The appeal is therefore incompetent.

113 For the above reasons, I would agree with the orders proposed by French J.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 16 May 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1482 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE:	16 MAY 2008
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1388 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAGB First Appellant SZABI Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent MINISTER FOR IMMIGRATION AND CITIZENSHIP Cross-Appellant SZABG First Cross-Respondent SZABI Second Cross-Respondent REFUGEE REVIEW TRIBUNAL Third Cross-Respondent

JUDGES:	FRENCH, ALLSOP AND TRACEY JJ
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

TRACEY J

114 I agree with the orders proposed by French J. I do so for the reasons given by his Honour. In particular, I agree that the decisions of the Federal Magistrates Court which it is sought to challenge were interlocutory in character and that the High Court’s decision in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 14; (2007) 228 CLR 651 does not compel a finding that s 477 of the Migration Act 1958 (Cth) is invalid.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:
Dated: 16 May 2008

Counsel for the Applicant in NSD1482 of 2007:	Dr C Mantziaris acted pro bono
Counsel for the Appellants and Cross-Respondents in NSD1388 of 2007: Solicitor for the Appellants and Cross-Respondents in NSD1388 of 2007:	Dr J Azzi Davidson James & Associates
Counsel for the First Respondent in NSD1482 of 2007 and NSD1388 of 2007 and the Cross-Appellant in NSD1388 of 2007:	Mr G Kennett
Solicitor for the First Respondent in NSD1482 of 2007 and NSD1388 of 2007 and the Cross-Appellant in NSD1388 of 2007:	Australian Government Solicitor

Date of Hearing:	29 October 2007
Date of Judgment:	16 May 2008