AGX16 v Minister for Immigration

[2016] FCCA 2445

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGX16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2445

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – application for summary dismissal – earlier application for an extension of time having been discontinued – new application for an extension of time – whether new application is an abuse of process.

Legislation:
Migration Act 1958, ss.36(2B)(c), 486D
Federal Court of Australia Act 1976, s.23
Federal Circuit Court of Australia Act 1999, s.15
Federal Circuit Court Rules 2001, r.13.10(c)

Cases cited:
Applicant A26 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050
Bailey v Marinoff (1971) 125 CLR 529; [1972] ALR 259; (1971) 45 ALJR 598; [1971] HCA 49
BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471
BZAGD v Minister for Immigration and Border Protection [2016] FCA 670
Chen v Monash University [2016] FCAFC 66
Joshi v Minister for Immigration and Border Protection [2016] FCCA 2168
MZAER v Minister for Immigration and Border Protection [2016] FCCA 782
SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137
SZSML v the Minister for Immigration, Multicultural Affairs & Anor [2013] FCCA 1253
Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485; (1994) 11 EPLJ 446c; [1993] HCA 77

Applicant: AGX16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 263 of 2016

Judgment of: Judge Riley

Hearing date: 12 September 2016

Date of last submission: 12 September 2016

Delivered at: Melbourne

Delivered on: 12 September 2016

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: Corrina Ford Immigration Lawyers

Counsel for the first respondent: Andrew Yuile

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 for summary judgment filed on 5 September 2016 be dismissed.

2. Order 2 made on 4 July 2016 be vacated.

3. The application for an extension of time and, if successful, the substantive application filed on 12 February 2016 be listed for hearing on 16 November 2016 at 10am.

4. The costs of today be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 263 of 2016

AGX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application brought by the Minister for Immigration and Border Protection under r.13.10(c) of the Federal Circuit Court Rules 2001 (“the Rules”) to summarily dismiss an application brought by the applicant on 12 February 2016. That application is an application for an extension of time to review a decision of the Refugee Review Tribunal.

2. The applicant made an application for a protection visa on 26 August 2012.  That application was refused by a delegate of the Minister on 28 March 2013.  The applicant applied within time for review by the Tribunal, and the Tribunal affirmed the delegate’s refusal on 18 July 2013.  The applicant then sought review of the Tribunal’s decision by this court on 27 September 2013.  The applicant was about one month out of time and sought an extension of time in which to bring his review application in this court.  The application for an extension of time was listed for final hearing on 29 April 2014.

3. However, about 12 days before the scheduled final hearing, the applicant filed a notice of discontinuance.  An affidavit filed by his now solicitor says that the applicant was advised by Victoria Legal Aid (“VLA”), who were then assisting the applicant, that the application did not have “sufficient prospects of success” for VLA to take on the case.  The applicant then sought Ministerial intervention.  The Minister refused that application on 31 October 2014.

4. About 15 months later, the applicant again applied to this court for an extension of time in which to bring an application to review the Tribunal’s decision of 18 July 2013.  The application was about two and a half years out of time.  The extension of time application has been set down for a show cause hearing at 10am on 16 November this year.

5. On 5 September 2016, the first respondent filed the summary judgment application that is presently before the court. That application sought orders that the application for an extension of time be dismissed as an abuse of process of the court pursuant to r.13.10(c) of the Rules.

6. The application was supported by an affidavit setting out the basic history of the matter, including that the applicant had filed a notice of discontinuance in respect of his previous application.  The Minister and the applicant both filed written submissions.  When the matter came on for hearing today, both the applicant and first respondent were represented by counsel.

7. The Minister referred, firstly, to the High Court’s decision in Walton v Gardiner (1993) 177 CLR 378 at 393; (1993) 112 ALR 289; (1993) 67 ALJR 485; (1994) 11 EPLJ 446c; [1993] HCA 77 where Mason CJ and Dean and Dawson JJ said:

   Yet again, 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.

8. The proceedings in that case had been stayed without judicial determination by the Court of Appeal.  Subsequently there was a Royal Commission and, according to the headnote, there were reformulated complaints laid.  The question was whether it was oppressive, in the circumstances of that case, to permit the matter to be brought before the court again.  The headnote also says:

   The grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the Tribunal affording the affected party a fair hearing.

9. The Minister, in this case, also relied on a decision of this court in the matter of MZAER v Minister for Immigration and Border Protection [2016] FCCA 782. That was a decision of Judge McGuire. It seems that what happened in that case was that the applicant sought judicial review, discontinued the application, filed another application for judicial review, and failed to attend court on the return of that hearing. The matter was dismissed for non-appearance, and then the applicant sought, with the benefit of legal assistance, to reinstate the second application for review.

10. Judge McGuire noted, at [13], that there was no application in that case to set aside the notice of discontinuance.  His Honour noted that the applicant had simply filed a second application seeking the same remedy in respect of the same subject matter.  His Honour set out an extract from the decision of Ryan J in SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137, where his Honour stated that there was nothing in the rules of this court that permitted a notice of discontinuance to be set aside or to reinstate proceedings which have been regularly discontinued. However, Ryan J noted at [18] of SZFOZ that, if the discontinuance itself involved an abuse of process, the court could set aside the notice of discontinuance.

11. Judge McGuire also referred to the High Court’s decision in Bailey v Marinoff (1971) 125 CLR 529; [1972] ALR 259; (1971) 45 ALJR 598; [1971] HCA 49, which emphasised that a matter disposed of by a court finally is beyond recall. His Honour also noted SZSML v Minister for Immigration, Multicultural Affairs & Anor [2013] FCCA 1253 where Judge Driver of this court said at [18]:

    ... the weight of authority supports the proposition that the Court has an inherent power to set aside a Notice of Discontinuance in exceptional circumstances in order to prevent injustice or abuse of its process.

12. Judge McGuire also referred to Applicant A26 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, where Mansfield J set aside a notice of discontinuance filed by the former solicitor for the applicant without the applicant’s knowledge or consent.

13. In the matter of MZAER, Judge McGuire noted, at [13], that there was no application to set aside the notice of discontinuance. His Honour said, at [14]:

    There is no suggestion of fraud or duress in the filing of the Notice of Discontinuance. … It is simply then impermissible to contemplate further applications in respect of the same issue, seeking the same remedy.

14. Judge McGuire said that the second application represented an abuse of process and should be dismissed.  His Honour went on to consider the extension of time application itself.  His Honour said that there was no excuse for the delay in that case, because the applicant had simply sought ministerial intervention.  His Honour also considered that the merits of the case were so unlikely to succeed that it was not proper to permit the extension of time.  The Minister relied on MZAER and said that it is relevantly indistinguishable.

15. The applicant submitted that the court should not follow MZAER.  The applicant argued that a significant distinction between that case and the present case is that the applicant in this case wishes to bring a new application on new grounds and is evidently bona fide in wishing to bring those grounds.

16. The Minister argued that the same subject matter arises in the present application and the earlier application because the new application deals with the same decision of the Tribunal that the applicant sought to have set aside in the earlier application, and the fact that the applicant now seeks to run new grounds is beside the point.

17. The Minister also referred to the decision of Judge Jarrett of this court in BZAGD v Minister for Immigration and Border Protection & Anor [2015] FCCA 3471. That was a case where the applicant had discontinued an application for review, and then sought an extension of time to commence another application to review the same Tribunal’s decision. The parties in that case decided that it would be appropriate for the applicant to seek leave to withdraw the notice of discontinuance and the matter was adjourned for that purpose. The court said that it had power to set aside the notice of discontinuance, but ultimately determined that it would not do so. In that case, Judge Jarrett considered the prospect of success of the extension of time application. Ultimately, his Honour concluded that the applicant did not have any real prospect of success.

18. The matter went on appeal before Rangiah J in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670. In that case, at [16], his Honour accepted that the Federal Circuit Court had an implied power to set aside a notice of discontinuance. However, Rangiah J disagreed with Judge Jarrett’s conclusion that a notice of discontinuance may be set aside in the interests of justice.

19. Rangiah J said that to set aside a notice of discontinuance in the interests of justice was inconsistent with the decision of the Full Court of the Federal Court in Chen v Monash University [2016] FCAFC 66. In that case, the Full Court said, at [41], that there was an implied power in s.23 of the Federal Court Act 1976, which is substantially the same as s.15 of the Federal Circuit Court of Australia Act 1999, to “reinstate a discontinued appeal in order to prevent an abuse of process”.  However, their Honours went on to hold at [50] that the court is not possessed of an express or implied power to reinstate a discontinued appeal in the interests of justice.

20. The Full Federal Court in Chen noted, at [46], that:

    While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.

21. In the present case, it is clear that the notice of discontinuance was filed as an informed and deliberate act.  That much is clear from the affidavit filed by the applicant’s solicitor where she said that the applicant was advised by VLA that he did not have “sufficient prospects of success”, and accordingly filed the notice of discontinuance.

22. The present case is not an application to set aside the notice of discontinuance or to reinstate the original extension of time application.  The applicant has frankly told the court that he has no basis whatsoever to set aside the notice of discontinuance.  He is not able to allege fraud or duress or any other ground that might warrant the notice of discontinuance being set aside.

23. Rather, the applicant submitted that, with the benefit of better legal advice that he now has, he is aware that there are new grounds that he could run.  The applicant argued that it is not an abuse of process for him to be permitted to run those new grounds.

24. The parties also referred to Joshi v Minister for Immigration and Border Protection [2016] FCCA 2168. That was a decision of Judge Nicholls of this court. In that case, an application for review of the Tribunal’s decision was discontinued. The applicant then brought a second application to review. Judge Nicholls dismissed the applicant’s second application for review as incompetent on the grounds that it did not comply with s.486D of the Migration Act (“the Act”).  That section required the application to set out the details of any previous application for review of a Tribunal’s decision.  The applicant, in his application, did not provide details of the earlier application to review.  On that basis, Judge Nicholls dismissed the second application for an extension of time.

25. Although his Honour dealt with the matter on the basis of incompetence for failing to comply with s.486D of the Act, his Honour also went on to consider the extension of time application itself and, for reasons his Honour gave, said that he would have refused the extension of time.

26. In that context, Judge Nicholls considered the abuse of process argument.  Judge Nicholls said that the Minister’s application to dismiss was formulaic and did not comply with his obligations as a model litigant.  His Honour also seems to have thought that the abuse of process argument depended on the applicant’s case being utterly hopeless.  However, the abuse of process argument in Joshi rested on the principle of the finality of litigation.

27. In any event, Judge Nicholls declined to follow MZAER.  His Honour said that Judge McGuire should not have dealt with the matter as he did, but should have required the applicant to file an application to set aside the notice of discontinuance.  That approach is not possible in this case because the applicant has conceded that he has no proper basis on which to seek to set aside the notice of discontinuance.

28. The applicant said that the court should not follow MZAER because Judge McGuire did not specify exactly why it is an abuse of process for a second review application to be filed in respect of the same Tribunal decision.  The applicant said that if this were an Anshun estoppel case, the Minister would need to prove that it was unreasonable for the applicant not to have brought the grounds that he now wishes to bring in the first proceeding.  It was also submitted that if, for example, the law had changed between the first application and the second application, it would have been reasonable for the applicant to have not brought in the first application the grounds that he now wishes to argue in the second application.

29. In the present case, the applicant said there is a new ground that he wishes to run, but does not say it is because there has been a change in the law.  He said it is because he now has better legal advice than he had when the notice of discontinuance was filed.

30. The court has not been referred to any case that is similar to this one where it is sought to run entirely new grounds.  In MZAER, it appears that the application was only to reinstate the earlier application that had been discontinued.  Joshi was decided on a completely different basis.  In BZAGD, it does not appear that there was an attempt to run new grounds.  However, I note in Walton v Gardiner the reference to a reformulated complaint. It says in the headnote at 380:

    Although the complaints were not the same as the earlier complaints, they arose out of the same pattern of professional conduct as gave rise to the earlier ones, and there was a substantial degree of overlapping between the issues to which the new complaints gave rise and the issues that would have arisen under the previous complaints.

31. The present case is somewhat different in that the original application to this court appears to have been prepared without the benefit of legal assistance.  It simply said, in relation to grounds of application, “Jurisdictional error”.

32. The new application has clearly been prepared with the benefit of legal assistance.  It sets out particulars relating to the question of complementary protection and alleges that the Tribunal did not consider an aspect of the complementary protection claims that were before it.

33. The applicant said that it would not be enough for him to show that there were new grounds.  He said that what would be required would be new grounds that were clearly bona fide.

34. I accept that the new grounds do appear to be bona fide.  I also accept that this case is different to Walton v Gardiner.  In that case the new complaints sought to be run overlapped with, and were substantially similar to, the old ones.  In the present case, the new grounds are entirely separate and new.

35. The Minister relied on the bare fact of the new application being in respect of the same Tribunal decision as the earlier application.  The Minister has not pointed to any manner in which there would be an abuse of process, apart from that bare fact.  The Minister has said that he would suffer prejudice in having to occur additional costs.  Of course, a costs order could be made in the Minister’s favour, upon an appropriate application being made.

36. This is a very difficult and finely balanced case.  However, in all the circumstances, I consider that it is not appropriate to summarily dismiss the application.  It does not seem to me, in the circumstances of this case, where there are entirely new grounds that are clearly articulated, that have been formulated with the benefit of legal assistance, and that appear to be bona fide, that it would be appropriate to conclude that there is an abuse of process.

37. I am also mindful that in refugee matters there is, potentially, a very great deal at stake, perhaps even the applicant’s life.  This means that, without actually considering the merits of the case, it is necessary to be extremely cautious and an abuse of process should be clearly established. 

38. Having said that, I have serious doubts about the application that the applicant now wishes to run. The ground seems to be a failure, on the Tribunal’s part, to consider the issue of sporadic violence, in the context of complementary protection. Of course, s.36(2B)(c) of the Act says that it is not significant harm, as defined, if the risk is faced by the population of a country generally. I note that the applicant, without being in a position to fully argue this point today, said that there might be an argument that the risk of sporadic violence is faced more in particular areas of Afghanistan than in others and those particular areas might be populated by people of a particular type, such as the applicant, who is a Hazara Shia. In any event, it is not appropriate, at this point, to consider the merits of the case and I do not do so.

1. The application for summary judgment filed on 5 September 2016 will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     21 September 2016