Ase17 v Minister for Immigration - [2018] FCCA 2458

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASE17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2458

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside notice of discontinuance – whether substantial injustice would be avoided if notice of discontinuance were set aside – whether applicant filed notice of discontinuance knowingly and voluntarily – application dismissed.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

Applicant:

ASE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 500 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

31 August 2018

Date of Last Submission:

31 August 2018

Delivered at:

Sydney

Delivered on:

7 September 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitor for the First Respondent:

Ms S He of Mills Oakley Lawyers

ORDERS

The application in a case filed by the applicant on 2 August 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 500 of 2017

ASE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Before me is an application in a case that in effect seeks an order that the Court set aside a notice of discontinuance the applicant filed on 4 June 2018.
The proceeding in which the notice of discontinuance was filed was for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). In his application for a Protection visa the applicant, who is a national of Pakistan and a Shia Muslim, claimed he feared harm from Sunni extremists because of his religious beliefs, practices, and identity as a Shia Muslim. The Tribunal did not accept the applicant’s claims largely because it was not satisfied the applicant was a credible witness.
The applicant filed his application for judicial review on 20 February 2017. On 29 June 2017 I made orders for the further conduct of the proceeding. These included orders permitting the applicant to file and serve an amended application and evidence by 1 September 2017, and an order that the matter be set down for hearing before me on 8 November 2018. The applicant did not file any amended application or affidavit. The first step the applicant took in the proceeding after 29 June 2017 was the filing of the notice of discontinuance.

The application to set aside notice of discontinuance

The application in a case that is before me seeks three orders. The first two orders repeat the grounds of application stated in the application, these being (errors in original):
1. The Tribunal did not correctly interpret law relating to Australia’s protection obligations under the ‘refugee’ criterion or on the complimentary protection as stated in s.36(2)(a) and 36(2)(aa) of Migration Act and Schedule 2 to the Migration Regulations 1994…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2458
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, Ase17, sought to set aside a notice of discontinuance filed in proceedings against the Minister for Immigration. The application was heard by Judge Manousaridis in the Federal Court of Australia.

The central legal issue before the Court was whether the applicant had filed the notice of discontinuance knowingly and voluntarily, and if not, whether setting aside the notice would avoid a substantial injustice.

His Honour considered the evidence presented regarding the circumstances under which the notice of discontinuance was filed. The Court applied the principles governing applications to set aside a notice of discontinuance, which require the applicant to demonstrate that the discontinuance was not filed knowingly and voluntarily, and that substantial injustice would result if the notice were not set aside. After reviewing the evidence, Judge Manousaridis found that the applicant had indeed filed the notice of discontinuance knowingly and voluntarily.

Consequently, the application to set aside the notice of discontinuance was dismissed.

Orders