Ase17 v Minister for Immigration
[2018] FCCA 2458
•7 September 2018
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 as applicable to the applicant’s circumstances.
Particulars
The Tribunal did not correctly identify elements in the relevant law stated above, as applicable to the applicant.
2. The Tribunal wilfully ignored relevant material in a way that affected the exercise of powers vested in it that amounted to a jurisdictional error.
Particulars
The applicant provided substantial evidence in relation to his protection claim orally, and in writing. He substantiated his claims with the provision of documentary evidence. The Tribunal failed in its duty to properly consider the relevant material as significant to his claim of protection in a way that affected the exercise of its powers.
The third order the application in a case seeks is that the “applicant to be allowed to file the application in a case to re-open the matter for the administration of justice”. I have taken this to constitute the seeking of an order that the notice of discontinuance be set aside.
The application in a case is supported by an affidavit affirmed by the applicant on 20 July 2018. The applicant deposes he came to Australia on 8 July 2013 holding a student visa, and that he applied for protection on 27 August 2013 on the ground that he feared persecution because of his religious beliefs as a devout Shia Muslim, his religious practice, his identity, and his association with a number of Shia organisations. After referring to matters I do not need not set out in these reasons, the applicant deposed as follows:
[6] . . . . I discontinued my application on 04 June 2018. This was because I was suffering from depression and anxiety at the time and was in a condition where I could not make wise decisions. I was not in a position to cope with the ongoing pressure of having a court matter.
[7] I submitted my application in a case to the FCCA registry via express post on 4 June 2018, however due to unknown reasons it was received on 10 July 2018. I was informed by the registry that by the time the registry, received the application, a decision on my notice of discontinuance was made by the Registrar Segal. Hence, my application in a case was subsequently not accepted being incomplete/invalid.
[8] I was required to prepare my new affidavit or amend the existing one to lodge my application again.
[9] My fiancé/partner is 18 week [sic] pregnant and currently is in . . . . Correctional centre. I believe, at this stage she needs my attention, my emotional, social, financial and psychological support more than anything else. When she was informed about my decision she did get upset and she counselled me and gave me new courage to seek justice for myself only but for our expected baby also.
[10] I have now realised that I should have continued my application as I feel that there will be a miscarriage of justice by not pursuing this application. I believe that the respondents erred when they refused to take into account, circumstances relevant to my matter.
There is annexed to the applicant’s affidavit a report dated 28 June 2018 prepared by a psychiatrist (Report). The Report describes the applicant as a young male who stated he “is currently in Australia on an asylum visa”, and states that the applicant’s partner is five months pregnant and in jail due to repeated driving offences. The Report also states the applicant presented “with symptoms of adjustment disorder comprising of poor sleep with early morning awakening, as well as excessive worrying, “low mood/ anhedonia, for the last few weeks, in the context of the above stress”. After noting a number of other matters, the Report states:
These symptoms have impacted on his ability to function in various domains – and as a result he temporarily withdrew his visa application (as he was finding it hard to cope with the process, as a result of the symptoms).
The Report then sets out observations under the heading “Mental State Examination”, and concludes as follows:
There were no perceptual disturbances in any modalities. Cognitively there was no deficit. His abstract thinking was not impaired. He had reasonable insight into his illness and the need for treatment. His judgment was not impaired, as evidenced by him not taking unwarranted risks with his own and others’ safety, and by making good choices regarding his psychiatric treatment, , family and finances
There is also annexed to the applicant’s affidavit a letter dated 19 June 2018 addressed to the “Department of Immigration” from a person who describes herself as the partner of the applicant. The letter states the author and the applicant have been engaged since a date in December 2017; the applicant is the father of the author’s unborn child; the author in a correctional facility but is due to be released in September 2018; the applicant has had a major impact on the author’s life; and the author expects the applicant will be a good father. The letter concludes that when making a final decision about the applicant’s visa account be taken of the impact of the decision on not only the applicant but also on the author of the letter.
Hearing before me
At the hearing of the application in a case the applicant, who is not legally represented, submitted he was not “in the correct state of mind” when he decided to discontinue the proceeding. I asked the applicant what he proposed to do if I were to set aside the notice of discontinuance. The applicant said he would again fight his case. When I suggested to the applicant that he had done nothing in the proceeding, the applicant said his circumstances had now changed. He said that before, his father was attacked and had broken his leg and, “in that pressure”, the applicant’s brother “had already left” (by which I understand the applicant intended to say that his brother was in Australia but he returned to Pakistan), that the applicant was “thinking of going back”, but now his circumstances had changed; his wife is in jail but will be released in September 2018, the applicant is expecting a baby, and he cannot “go from here now”. When I asked the applicant what that had to do with the proceeding, given that the applicant had done nothing in the proceeding other than file a notice of discontinuance, the applicant said his brother had already left; the applicant’s life is in danger; he had just made a decision to go back and leave everything behind; he was scared to face his responsibilities, but now his wife told him not to go, and the applicant’s family also told the applicant not to go back, noting that his brother is not living a life he is supposed to be living.
I asked the applicant what it is he proposes to do to fight his case. The applicant said he will hire a lawyer and obtain evidence. In response to my question of why had had not already engaged a lawyer, the applicant said he could not afford it. He answered in the affirmative my question whether he now says he would be able to afford a lawyer.
The applicant also submitted that he attempted to file the application in a case on 5 July 2018 but the Registry rejected the filing of the application. The applicant said he attempted to do this before he received a sealed copy of an order a Registrar made on 10 July 2018 that the applicant pay the Minister’s costs. The applicant was under the impression that the order was made as a consequence of a judgment of the Court in response to the applicant’s having filed the notice of discontinuance. I explained to the applicant that the order was simply an order for costs, and that the notice of discontinuance operated to discontinue the proceeding as soon as it was filed, and that it had that effect without any judgment of the Court.
Principles
The principles that are relevant to my determination of the application before me are those stated by Perram J in Moussa v Minister for Immigration and Border Protection.[1] After noting there is no specific rule in the Federal Circuit Court Rules 2001 (Cth), and referring to a number of authorities, his Honour said four principles may be distilled from the authorities:[2]
1.A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.
2.It may also be set aside where its filing was procured by fraud or duress.
3.There is a jurisdiction to set such a notice aside to avoid substantial injustice.
4.None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.
[1] [2015] FCA 1280
[2] [2015] FCA 1280, at [13]
Set aside notice of discontinuance?
Nothing in the material before me suggests the applicant’s filing of the notice of discontinuance constituted an abuse of process, or that the applicant’s decision to file the notice of discontinuance was procured by fraud or duress; and there is nothing in the material before me that suggests substantial injustice would be avoided if I were to set aside the notice of discontinuance.
First, the grounds of application (which, as I have already noted, are repeated in paragraphs 1 and 2 of the orders sought in the application in a case) go no further than making general claims that do not engage with any part of the Tribunal’s reasons for affirming the delegate’s decision. Ground 1 claims the Tribunal did not correctly interpret the law relating to Australia’s protection obligations under s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth), and that it did not identify elements of the law as it applied to the applicant. Stated in those general terms the ground is not arguable. Ground 2 claims the Tribunal wilfully ignored relevant material; but the ground does not identify the material the Tribunal is said to have ignored. The particulars to ground 2 claim the Tribunal failed in its duty to properly consider the relevant material as significant to his claim of protection in a way that affected the exercise of its powers; but the particulars do not identify the material the Tribunal failed to consider, or the respects in which the Tribunal failed to consider the material the applicant submitted. Thus, if the notice of discontinuance were set aside and the application continued by relying on the grounds set out in the application, the application would be bound to fail.
Second, there is nothing before me that could satisfy me that there would be any utility in my setting aside the notice of discontinuance. As I have already noted the applicant said he would hire a lawyer. That statement of intention, however, does not provide a basis for finding the applicant has any realistic prospect of obtaining legal assistance, given that by the time I heard the application the applicant had not engaged a lawyer. Even if I were to be satisfied there was some prospect the applicant would be able to afford a lawyer, that by itself does not suggest there is any prospect the lawyer will identify any arguable case of jurisdictional error by the Tribunal.
That, then, leaves me to assess the significance of the Report on which the applicant relies. The Report does say that the symptoms identified in the Report “impacted on [the applicant’s] ability to function in various domains”, and that “as a result he temporarily withdrew his visa application (as he was finding it hard to cope with the process, as a result of the symptoms)”. That statement, however, must be read together with the observations and conclusions contained under the heading “Mental State Examination”. These include the applicant’s not being afflicted by any “perceptual disturbances in any modalities”, any cognitive deficit, any impairment to the applicant’s abstract thinking, or any impairment of judgment. The Report also observes that the applicant has insight into his illness. The Report does not say that at the time the applicant decided to discontinue the proceeding his mental state was different from that described in the Report under the heading “Mental State Examination”; and the Report does not suggest that the symptoms with which it states the applicant presented prevented the applicant from understanding, or otherwise impaired the applicant’s ability to understand, the nature and significance of his deciding to discontinue the proceeding, or to rationally weigh factors relevant to deciding whether to discontinue the proceeding.
In these circumstances I do not accept that the matters contained in the Report raise any doubt that the applicant voluntarily decided to discontinue the proceeding, and that the applicant did so having knowledge of the nature and significance of his completing and filing with the Court a notice of discontinuance. On the contrary I am satisfied the applicant knowingly and voluntarily decided to discontinue the proceedings by completing and filing a notice of discontinuance.
Conclusion
For these reasons I am not persuaded there is any basis on which I could order that the notice of discontinuance the applicant filed on 4 June 2018 be set aside; and to the extent the question of whether the notice of discontinuance should be set aside involves the exercise of discretion, I am not satisfied that as a matter of discretion I should set aside the notice of discontinuance because I am not satisfied it is in the interests of the administration of justice that I do so. I propose, therefore, to order that the application in a case the applicant filed on 2 August 2018 be dismissed. I will deal with the question of costs at the time I pronounce the order dismissing the application in a case.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 7 September 2018
1
3