Abdelfattah v Minister for Immigration

[2018] FCCA 3540

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDELFATTAH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3540

Catchwords:
MIGRATION – partner (residence) (class BS) visa – whether application to this court was nullity – it was not – minister’s summary judgment application dismissed.

Legislation:

Migration Act 1958, ss 486D, 486I

Federal Circuit Court Rules 2001, rr 13.01(a), 44.12

Cases cited:

AFM15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

DZY17 v Minister for Home Affairs [2018] FCAFC 196

Spencer v Commonwealth (2010) 241 CLR 118

SZTOG v Minister for Immigration and Border Protection [2018] FCA 112

TCWY v Minister for Immigration and Border Protection [2018] FCA 804

Applicant: EHAB HASSAN MOHAMED ANWAR HASSAN ABDELFATTAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2825 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Melbourne

Delivered on: 29 November 2018

REPRESENTATION

Counsel for the Applicant: Ms G Costello

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the First Respondent:

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application in a case filed on 18 November 2018 is dismissed.

2. The applicant has leave to file and serve an amended application in the form exhibited to the affidavit affirmed by Nazim El‑Bardouh on 26 November 2018.

3. On or before 6 December 2018 the applicant and the first respondent submit agreed directions for the future conduct of this proceeding.

4. The first respondent pay the applicant’s costs of the applications in a case filed on 18 November 2018 and 26 November 2018 as agreed or taxed in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2825 of 2017

EHAB HASSAN MOHAMED ANWAR HASSAN ABDELFATTAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The very discrete point raised by this application is whether a migration proceeding is validly commenced where the solicitor representing the applicant fails to sign the lawyer’s certification required by s 486I of the Migration Act (“Act”).  The minister’s solicitor, Ms Nyabally, contended that the entire proceeding was irregular, ab initio, to use her words, by reason of the absence of the applicant’s solicitor’s signature above the space set out for it on the application for judicial review.

2. On behalf of the applicant, Ms Costello of counsel argued that –

   a)the proceeding was not an irregularity;

   b)no binding authority existed on point to support the minister’s contentions;

   c)the applicant’s proposed amendment should be allowed; and

   d)the minister should pay the costs of the appearance before me on 27 November 2018 by reason of the minister’s resistant attitude to the amendment the applicant proposed.

Synopsis

1. For the reasons that follow, in my judgment the amendments should be allowed, the minister’s summary dismissal application should be refused and costs should be paid by the minister.

Short factual recital

1. The application to commence this proceeding was received by this court at 4:38:55pm on 21 December 2017 and allocated proceeding number MLG 2825 of 2017.  At the time of the filing of the application for judicial review, the applicant filed an affidavit to which he exhibited the decision of the Administrative Appeals Tribunal that he sought to impugn.  Relevantly, the tribunal affirmed the minister’s delegate’s decision not to grant the applicant a partner (residence) (class BS) visa.

2. On 17 January 2018 the minister filed his response. In it, the minister advanced a single ground of opposition to the applicant’s application. It was that the decision under review was not affected by jurisdictional error. No point was taken about any alleged incompetence of the proceeding by reason of the absence of a signature, as required by s 486I of the Act. The proceeding has not passed through the usual step of first directions before a registrar.

3. Instead, competing applications in a case were filed.  The minister’s was issued on 19 September 2018.  In it, the minister sought an order dismissing the entire proceeding.  The minister contended in support of that application –

   a)the proceeding was incompetent by reason of s 486I of the Act; and

   b)the applicant had no reasonable prospects of successfully prosecuting the proceeding under r 13.10(a) of the Rules of the Federal Circuit Court. 

4. The minister sought costs.

5. As mentioned earlier, the applicant sought leave to file and serve an amended application in the form exhibited to his solicitor’s affidavit affirmed 26 November 2018. The applicant sought an order that his costs be paid by the minister. Debate between solicitors for the parties about the competency of the application for judicial review first emerged in late March of this year. On 22 March 2018, a solicitor with the Australian Government Solicitor wrote to the applicant’s solicitor notifying the applicant’s solicitor that in the view if the AGS solicitor the absence of a certification under s 486I rendered the applicant’s application for judicial review incompetent.

6. In support of that contention the AGS relied on a 2011 decision of a magistrate.  I am not bound by a decision of a magistrate I decline to follow it.  At all events in that letter the AGS invited the applicant to discontinue the proceeding and to commence a new proceeding, pointing out that in order to commence any such new proceeding the applicant would be required to obtain an extension of time.  Then the AGS wrote to the effect that the minister would apply to summarily dismiss this proceeding unless this applicant discontinued his application for judicial review in 14 days of the date of the letter.

7. In response, on 10 April 2018 the applicant’s solicitor sought a month to consider the matter.  The AGS gave the applicant until the close of business one week thereafter.  Pausing at that point, the AGS squarely identified that the minister would apply for summary dismissal of the applicant’s proceeding.  In debate with the minister’s solicitor on 27 November 2018 I raised the observations of the High Court in Spencer v Commonwealth[1] and the observations of the Full Court of the Federal Court in AFM15 v Minister for Immigration and Border Protection[2] to the effect that an order for the summary dismissal of the proceeding is not to be lightly made.

   [1] (2010) 241 CLR 118

   [2] (2016) 241 FCR 30

8. When those cautionary comments are translated to the facts of this case it seemed to me that I needed to be persuaded that the minister’s contentions about the incompetence of the application for judicial review had real merit in order to summarily dismiss this proceeding.  For the reasons that follow I am not so persuaded.  It is true that the applicant’s solicitor did not affix his signature above that portion of the initiating application that provided “signature of the lawyer filing application.”

9. Yet as Ms Costello pointed out it was self‑evidently apparent that the applicant’s solicitor prepared the application as his firm’s name and details appeared on the face page of the application.  To that may be added that the unamended grounds on which the applicant relied were sound and they raised issues calling for examination of the tribunal’s treatment of the merits review application.  The applicant raised in those grounds issues of apprehended bias and procedural unfairness.

10. Of the latter point, the applicant’s particulars under ground two identified the tribunal’s unreasonableness in twice refusing applications to adjourn the hearing. On a cursory reading of those grounds, even in their unamended form, they raised reasonably arguable contentions yet in saying that I recognise that I have not yet had the benefit of submissions from the parties. Put differently, the grounds are not in the category of grounds in respect of which a show cause application under r 44.12 of the Rules of the Federal Circuit Court could properly be brought.

11. Accordingly, it became necessary to consider the minister’s contention that the application for judicial review was incompetent by reason of the absence of the applicant’s solicitor’s signature in the appropriate place on the initiating application.  Ms Nyabally was not able to refer me to a binding authority that supported her contention.  At its highest, the minister relied on the decision of Flick J in SZTOG v Minister for Immigration and Border Protection.[3]

    [3] [2018] FCA 112

12. In paragraph 20 of his Honour’s reasons, his Honour said the following –

    In the absence of a meaningful certification as required by s 486I, a proceeding is liable to the very real prospect that it will be summarily dismissed.

13. So much may be accepted as true, namely, an application without certification may be – not “must be” – the subject of an application for summary dismissal.  I do not read his Honour’s observations as mandating a conclusion that an uncertified application for judicial review will or must be dismissed.

14. To test the proposition but in reverse, I have determined countless applications for judicial review in the migration jurisdiction that while validly certified have failed. In other words, no assurance of success is given by the certification contemplated by s 486I. Any such certification has the effect of offering an opinion only, namely, that in the opinion of the certified solicitor the application has reasonable prospects of success.

15. A reading of the grounds will address that issue, however. In fact, on a show cause application, that very matter is put in issue even when the certification under s 486I is given. I do not place much store in the certification given under s 486I. The grounds themselves will point up whether the claim has reasonable prospects of success. In this case, it seemed to me that the grounds even in their unamended form raised an arguable basis for the relief the applicant sought.

16. The application for summary dismissal was forlorn.  Ms Nyabally called in aid of her application for summary dismissal two decisions of the Federal Court of Australia.  The first was a decision of Perry J in TCWY v Minister for Immigration and Border Protection[4] judgment of which was handed down on 1 June 2018 and the second was a decision of the Full Court in DZY17 v Minister for Home Affairs.[5] 

    [4] [2018] FCA 804

    [5] [2018] FCAFC 196

17. In reaching the conclusions to which I have come in this application I have carefully considered both of those decisions.  Several things must be said about those decisions.  First, in TCWY and in DZY17 the court was concerned with s 486D of the Act. Conversely, in this interlocutory debate the propositions advanced by the minister was that s 486I was not met. The two sections related to very different issues.

18. Section 486D related to an applicant not commencing a proceeding in this court unless the applicant when commencing the proceeding disclosed to the court any judicial review proceeding already brought by the applicant in the Federal Circuit Court or in any other court in relation to that decision. Conversely, s 486I related to an applicant’s solicitor certifying certain things. In my view no parallel exists in those two requirements.

19. That in itself was enough to differentiate those two decisions. Section 486D served a very different purpose. If a court has already determined the visa application the applicant must disclose that when filing his or her process. That was not this case. In short, in my view no authority supported the severe consequences that the minister urged me to adopt in this case.

20. Then it became necessary to consider the consequences of acceding to the minister’s proposal.  Several emerged.

21. First, while creating no estoppel a dismissal of the current proceeding would necessitate the filing of a new application thereby placing the applicant further behind in the burgeoning queue of cases awaiting a hearing in this court.  That is highly undesirable. 

22. Next, the applicant would need to seek and obtain leave to commence that new proceeding out of time, something necessary if I were to adopt the minister’s submissions.

23. Both of those matters had merit.  No practical utility was advanced by the minister’s contentions.  I dismiss the minister’s application for the summary dismissal of this proceeding. 

24. Next, it was necessary to address the application to amend.  The amended application proposed is different from the application filed on 21 December 2017 in only two respects, the signature of the applicant’s solicitor above the space for a signature and the date 26 November 2018 instead of 21 December 2017.

25. No alternation was proposed to any of the grounds. 

26. Directions have not yet been given for the conduct of this proceeding.  They must.  I will grant leave to the applicant to amend in the form of exhibit NE‑1 to the affidavit of Nazim El‑Bardouh affirmed 26 November 2018.  That document has been filed already so its status will commence henceforth.  The parties must bring in agreed directions within seven days recognising that the hearing of this proceeding will be on a date to be fixed.

27. Finally, costs.  In my view the minister should pay the applicant’s costs.  The minister’s summary dismissal application failed.  No reason has been suggested that costs should not follow the event.  The minister sought his costs had he been successful in his summary dismissal application.  Conversely, Ms Costello argued that the minister adopted an attitude that was unrealistic and unreasonable by persisting in the dismissal application when the defect in issue was technical at best.

28. Ms Costello refuted the need for the applicant to agree to the minister’s overtures for the applicant to discontinue the proceeding. In my view her contentions were correct. The proceeding was not a nullity by reason of the absence of the signature of the applicant’s solicitor. The minister should have adopted a different approach in this case. The situation may have been different if the application for judicial review had not been certified under s 486I of the Act and the grounds were generic and bereft of particulars.

29. But the grounds in this case were far from generic or wanting in particulars.  Whether the application for judicial review will ultimately succeed remains to be seen.  I will not dismiss it at this stage.  However, in my view the minister must pay the applicant’s costs in resisting the applicant’s application in a case dated 18 September 2018.  The minister must also pay the applicant’s costs of the applicant’s application to file and serve the amended application, such application in a case dated 26 November 2018.

30. This case was heard by me despite the case being under the interlocutory supervision of her Honour Judge Mercuri.  Her Honour was diverted by other court business and unable to hear this application when I did.  I propose to retain control of this case from this point onwards.  A hearing date will be selected from my available diary commitments as soon as possible and I will let the parties know.  They should embed that date in the directions on which they are required to reach agreement and return in seven days.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     4 December 2018