AGGARWAL v Minister for Immigration

[2016] FCCA 2900

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGGARWAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2900

Catchwords:
MIGRATION – Application to set aside notice of discontinuance – applicant knowingly and voluntarily filed a notice of discontinuance – no evidence of fraud or duress – application dismissed.

Cases cited:
SZFOZ v. Minister for Immigration and Citizenship [2007] FCA 1137

Applicant: ABHAY AGGARWAL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1731 of 2014

Judgment of: Judge McNab

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 18 October 2016

REPRESENTATION

Applicant In Person

Counsel for the 1^st Respondent: Mr Young

Solicitors for the 1^st Respondent: Sparke Helmore

ORDERS

1. The application filed 25 August 2014 and the application in a case filed 14 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1443.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1731 of 2014

ABHAY AGGARWAL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. I have before me an application in a case which was filed

   
   

   14 April 2016. By that application, the applicant seeks to reinstate a migration application filed 22 August 2014 which was discontinued by him on 13 May 2015.

2. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa under Migration Act 1958 (Cth) (“The Act”). The applicant gave evidence by way of an affidavit sworn on 14 April 2016 in support of his application to set aside the notice of discontinuance.

3. He gave evidence at [3]- [6]:

   3.That I discontinued these proceedings to avoid the costs of a final hearing as I was seeking that the Minister would intervene in my case through a Ministerial Intervention Request. 

   4.That on 6 April 2016 the Minister has declined to intervene in my case. Annexed is a copy of the Ministerial Intervention outcome letter I have received.

   5.That I have no option left but to continue to proceed with my case in this Court. Seeking redress and relief in this court is now my final and only option.  I must continue with my Migration Application in this court now that the Minister has declined to intervene in my case.

   6.If this court does not allow me to continue with my Migration Application then I will have no option but to return back home overseas and once I am home I will have no avenue to seek redress and relief.

4. The applicant made similar submissions to me before the court today, to the effect that he has been in the country for 10 years and that the application before the court is effectively his only opportunity to overturn the decision of the delegate made in 2012. He stated that he has no future if he returns to India. I am required to deal with the application before me in accordance with law.

5. In circumstances where the applicant has voluntarily filed a notice of discontinuance and has done so in order to pursue a different avenue of redress or relief, in my view, for the reasons that follow, it is not appropriate to set aside the notice of discontinuance. 

6. There is no evidence of any duress, fraud or lack of voluntary will or mistake in relation to the applicant’s decision to file a notice of discontinuance. I refer to the decision of Ryan J in SZFOZ v. Minister for Immigration and Citizenship [2007] FCA 1137 where at [15],

   
   

   His Honour states:

   The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion. As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned any injustice to the appellant. However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected. Rule 13.01 of the Federal Magistrates Court Rules provides a mechanism for discontinuance by stipulating;

   ‘A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.’

7. He then states at [17]:

   17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;

   ‘It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.’

8. At [20], His Honour concludes (with my emphasis):

   20.In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process.  Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.

9. Having regard to a relevant and binding authority and having regard to the particular circumstances of this matter, I dismiss the applicant’s application in a case filed 14 April 2016. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 11 November 2016