BLR15 v Minister for Immigration & Anor
[2016] FCCA 1260
•24 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1260 |
| Catchwords: PRACTICE AND PROCEDURE – Discontinuance of proceedings – application to set aside the discontinuance – no exceptional circumstances demonstrated – hence the Court’s discretion to grant relief is not enlivened. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Chen v Monash University [2016] FCAFC 66 Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 Kansra v Minister for Immigration & Anor [2014] FCCA 2726 MZZDN v Minister for Immigration & Anor [2015] FCCA 69 Skipworth v State of Western Australia & Ors (No. 2) [2008] FMCA 544 SZFOZ v Minister for Immigration [2007] FCA 1137 |
| Applicant: | BLR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2028 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Solicitors for the Respondents: | Ms P Blackadder of Sparke Helmore |
| Solicitors for Mr Jay Williams: | Mr M Newman of Newman & Associates |
INTERLOCUTORY ORDERS
The Application in a Case filed on 20 April 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2028 of 2015
| BLR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 24 May 2016 I dismissed (with costs fixed in the sum of $3,000) an Application in a Case in which the applicant sought “leave to withdraw” a Notice of Discontinuance he had e-filed on 6 April 2016[1] in the principal proceedings. The principal proceedings were an application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa. The following are my reasons for the orders I made on 24 May 2016.
[1] The Notice was signed on 4 April 2016 and foreshadowed to my Associate the following day. I granted leave by consent on 5 April 2016 for the Discontinuance to be filed
The background to this matter is as follows.
The applicant, a citizen of Lebanon, made an application for a protection (Class XA) visa on 13 June 2013. He claimed to fear harm in Lebanon from radical Sunni Islamists as well as Hezbollah and their Lebanese allies.
The applicant was represented in relation to the visa application by his registered migration agents, Firmstone & Associates (Firmstone), who lodged his visa application. They remained the applicant’s representatives at all relevant times.
By letter dated 19 November 2013, the applicant was invited for an interview with the Minister’s delegate. On 11 December 2013, Firmstone advised that the applicant would not be able to attend the interview due to illness, foreshadowing the provision of a medical certificate by 5.00pm that day. No medical certificate was ever sent to the Minister’s Department, despite two reminders by the Minister’s Department. The Minister’s Department rescheduled the interview and sent a further invitation to the applicant. No response was received from the applicant and he did not attend the interview.
On 17 January 2013, the applicant, through Firmstone, made an application to the Tribunal for review of the delegate’s decision. By a letter dated 20 May 2014, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited the applicant to (a) provide a written submission and any witness statements by 28 July 2014 and (b) attend a hearing scheduled for 4 August 2014.
By a letter dated 22 May 2014, Firmstone provided the applicant’s response to the hearing invitation, indicating that both the applicant and his representative (Mr Sam Issa) would be attending the hearing. Neither appeared at the hearing.
On 4 August 2014, the Tribunal proceeded to make its decision on the review, pursuant to s.426A of the Migration Act 1958 (Cth) (Migration Act), without taking any further action to enable the applicant to appear before it. The Tribunal decided to affirm the delegate’s decision.
On 10 October 2014, the applicant, through Firmstone, submitted a request to the Minister for intervention under s.417 of the Migration Act. By a letter dated 24 June 2015, the Department informed the applicant that his request for Ministerial intervention had been unsuccessful.
On 20 July 2015, the applicant lodged an application to show cause in this Court.
Tribunal’s findings
The Tribunal accepted that the applicant was a national of Lebanon. However, it found the applicant’s claims to be lacking in detail in significant respects. On the basis of the evidence before it, the Tribunal could not be satisfied as to why the applicant left Lebanon or whether he could not or would not return to the country because he feared harm as he claimed. It did not accept any of the applicant’s claims and was not satisfied that there was a real chance that the applicant would face serious or significant harm for the purposes of s.36(2)(a) and (aa) of the Migration Act.
The proceedings in this Court
The application for judicial review was made significantly after the expiry of the time limit prescribed by s.477(1) of the Migration Act. The judicial review application sought an extension of time pursuant to s.477(2) of the Migration Act on the basis that the applicant had sought Ministerial intervention pursuant to s.417 of the Migration Act. Procedural orders were made by a registrar of the Court to prepare the case for a hearing (including on the extension of time issue) on 5 April 2016. On 4 April 2016 the applicant signed a Notice of Discontinuance. The Notice had been prepared by Mr Jay Williams, the applicant’s barrister acting on a direct access brief. On 5 April 2016 I made orders by consent granting leave to the applicant to discontinue the matter and awarding costs against him, fixed in the sum of $5,800.
The Application in a Case seeking leave to “withdraw” that Notice of Discontinuance was filed on 21 April 2016 and was prepared by the applicant’s current solicitor, Mr Sam Issa.
The Application was supported by an affidavit made by the applicant on 5 April 2016 and filed with the Application in a Case.
The Application in a Case came before me on 5 May 2016. I adjourned the hearing until 24 May 2016 and ordered that the Application in a Case and supporting documentation be served on Mr Williams, having regard to allegations made in the applicant’s affidavit about Mr Williams.
On 23 May 2016 Mr Williams indicated to my associate by email that he wished to appear and to introduce evidence bearing upon the Application in a Case. He stated, however, that he was not available at the time fixed for the commencement of the hearing. My associate informed Mr Williams that he should arrange alternative representation. At the hearing on 24 May 2016 I gave leave for Mr Newman to appear on behalf of Mr Williams. As matters transpired, it was not necessary to call on Mr Newman to make any submissions or deal with any evidence. This was on the basis that, as agreed between the representatives of the applicant and the Minister (and the Court) I would first consider whether the Court had any jurisdiction which was enlivened to deal with the Notice of Discontinuance. I proceeded on the basis that it would only be if I found that the Court had jurisdiction which was enlivened to give rise to the exercise of discretion, that it would be necessary to test the applicant’s evidence and to deal with any evidence that Mr Williams might seek to introduce.
Consideration
Principles concerning setting aside a Notice of Discontinuance
I agree generally with the Minister’s submissions concerning the relevant principles to be applied, which were not disputed by the applicant.
If and once it is established that the power exists to set aside the Notice of Discontinuance, the Court must then consider whether it should set aside the Notice. Notably, a Court cannot set aside a Notice of Discontinuance in the absence of exceptional circumstances such as abuse of process, fraud, or mistake. Only once it is established that power to set aside the Notice of Discontinuance exists can the Court consider the merits of the substantive application.
Power to set aside Notice of Discontinuance
There is no express power contained in the Federal Circuit Court Rules 2001 (Cth) to set aside a Notice of Discontinuance.
The Federal Circuit Court is, like the Federal Court and the Family Court, a court of statutory jurisdiction and, as this Court is not a superior Court, it may lack inherent jurisdiction[2]. That said, there is an implied power to make orders necessarily incidental to express powers. Therefore the Federal Circuit Court has incidental powers shaped by the relevant statutory provisions. This includes a power to set aside a notice of discontinuance in exceptional circumstances in order to prevent injustice or abuse of its process.
[2] Skipworth v State of Western Australia & Ors (No. 2) [2008] FMCA 544 at [35]-[38] per Lucev FM
In SZFOZ v Minister for Immigration[3] Ryan J upheld a judgment of this Court refusing an application to set aside a Notice of Discontinuance. At [15], [17] and [20], his Honour held relevantly:
[3] [2007] FCA 1137
[15] 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.
…
[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.
…
[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 [[1981] AC 557] and Applicant A26 [[2003] FCA 1050] 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.
The approach of Ryan J in SZFOZ set out above, has been followed by this Court in Kansra v Minister for Immigration & Anor[4] and in MZZDN v Minister for Immigration & Anor[5].
[4] [2014] FCCA 2726 at [23]-[25] per Judge Turner
[5] [2015] FCCA 69 at [51]-[55] per Judge Burchardt
The Minister’s submissions noted that there has previously been conflicting authority, which suggests that the “inherent” power extends beyond cases of fraud or mistake, and extends to whenever the interests of justice dictate that that is the appropriate course[6]. The Minister submitted that this authority should not be followed, and that the narrower construction set out in SZFOZ is the preferred construction of the Court’s power to set aside a Notice of Discontinuance. My own view is that the interests of the administration of justice is a general concept and the particular circumstances in which those interests will compel the Court to intervene to set aside a Notice of Discontinuance are exceptional.
[6] Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 at [27]-[28]
Support for this construction has recently been provided by the Full Court of the Federal Court in Chen v Monash University[7], where it was held that the implied power to relieve against an abuse of process will only be enlivened where an appellant who filed a Notice of Discontinuance did not do so as a deliberate and informed act (in that case the Notice was filed as a result of fraud and the appellant was not complicit). Then, once that power is enlivened, it is discretionary in nature so that, when enlivened, the prospects of success of the proposed application may also be taken into account in its final exercise.
[7] [2016] FCAFC 66
Application of the principles
The applicant does not allege duress on the part of Mr Williams (or anyone else). The applicant’s allegation is that on 1 April 2016 Mr Williams advised him that he would be in contact with him shortly about “next steps” and that he did not need to do anything at that stage, but on 4 April 2016 (the day before the scheduled hearing) Mr Williams asked the applicant to contact him urgently and, when the applicant attended Mr Williams’ chambers with his brother that evening:
a)Mr Williams advised that the applicant would need to provide evidence of his dealings with an alleged unregistered migration agent in the Tribunal proceedings;
b)the applicant demurred because it was too late to obtain the evidence;
c)Mr Williams advised that the judicial review application would fail in the absence of evidence and that the only evidence then available (an affidavit by the applicant) was false[8];
d)the applicant and his brother insisted that the affidavit was true;
e)Mr Williams advised that Mr Issa “had a lot of complaints against him alleging fabrication” and “strongly suggested” that the applicant make a complaint against Mr Issa because it was apparent that he had fabricated the contents of the affidavit for the applicant;
f)the applicant “strongly denied” this; and
g)Mr Williams gave the applicant two choices, namely to discontinue the proceedings or deal with the case himself[9].
[8] That affidavit had been prepared with the assistance of the applicant’s current solicitor, Mr Issa, who had also represented him before the Tribunal
[9] allegedly on the basis of a concession that the contents of the affidavit filed in support of the application were not true
In the circumstances, the applicant contends that he had “no choice but to agree with what was put to me and sign [the] Notice of Discontinuance”. The applicant states that if Mr Williams had provided him with more time then he would have been able to produce supporting evidence about the alleged unregistered migration agent.
In my opinion, the most that could be said about Mr Williams’ conduct is that his advice was provided very late and in circumstances where the applicant had little or no evidence to support his judicial review application.
In the circumstances, in my opinion, there is no evidence that the preparation and filing of the Notice of Discontinuance was anything other than a deliberate and informed act done by counsel under instructions of the applicant. The applicant was understandably concerned that Mr Williams provided his advice on the evening before the scheduled hearing and felt that he had no alternative. However, in his affidavit, the applicant acknowledges that Mr Williams gave him the opportunity to run the case himself (in other words, if the applicant would not act on his counsel’s advice, counsel would have returned the brief).
It appears from the applicant’s affidavit that Mr Williams advised the applicant not to rely on the affidavit which had been filed in support of the judicial review application. I am not in a position to say whether there was anything wrong with that advice. The applicant could have sought a second opinion from Mr Issa, who had represented him before the Tribunal, indeed he may have done so. The applicant’s affidavit was made on 5 April 2016, the day of the scheduled hearing, when the applicant had evidently changed his mind about relying upon Mr Williams’ advice. The applicant knew, from Mr Williams’ advice, that he had a choice to run the case himself and, if the applicant had changed his mind overnight, it is very surprising that he did not act immediately. Instead, there was a two week delay between the making of his affidavit in support of his Application in a Case and the filing of that application. The Notice of Discontinuance was clear on its face and not readily capable of being misunderstood. If the applicant was in any doubt as to the content of the Notice and the effect of its filing, it was incumbent on him to seek assistance at the time and not wait some weeks after the Notice was filed.
Conclusion
The filing of the Notice of Discontinuance by the applicant’s legal representative cannot be characterised as an abuse of process on the basis that it was not done without instructions. No duress is alleged. In the circumstances, I find that the Court’s implied power to prevent injustice is not enlivened and the occasion does not arise for the Court to consider exercising a discretion to set aside the Notice of Discontinuance.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 May 2016
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