BNJ17 v Minister for Immigration

[2018] FCCA 1359

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1359

Catchwords:
MIGRATION − Judicial review − protection visa − solicitor certification of reasonable grounds of success − no reasonable grounds of success − failure to provide any evidence that there was any basis for certifying that there were reasonable grounds of success− personal costs order − application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A(1)(a), 426A(1)(b), 426B(5), 426A(1A)(b), 477(2), 486F, 486F(1)(a), 486F(1)(c)(i), 486F(1)(c)(ii), 486I

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant: BNJ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 708 of 2017

Judgment of: Judge McNab

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Melbourne

Delivered on: 27 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Hugh Ford Solicitor and Migration Agent

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 7 April 2017 be dismissed pursuant to

   
   

   r. 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. Mr Hugh Ford pay the First Respondent’s costs fixed in the sum of $3,667 pursuant to s. 486F(1)(a) of the Migration Act 1958 (Cth).

3. The costs incurred by the Applicant in the commencement and continuation of this proceeding are not payable to Hugh Ford or Hugh Ford & Associates and Hugh Ford or Hugh Ford & Associates repay to the Applicant costs already paid by the Applicant pursuant to

   
   

   s. 486F(1)(c)(i)-(ii) of the Migration Act 1958 (Cth).

4. By 4pm on 3 May 2018, Hugh Ford file and serve an affidavit disclosing all amounts paid to the Applicant to him for services provided in relation to this proceeding and evidence that that sum has been repaid by him or his firm to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 708 of 2017

BNJ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE (REVISED FROM TRANSCRIPT)

1. This is an application for an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth)(“the Act”).

2. The application was filed approximately 10 weeks out of time and concerns a decision of the Administrative Appeals Tribunal

   
   

   (“the Tribunal”), made on 22 December 2016, to confirm the dismissal of an application made by the Applicant.

3. The decision records that on 6 December 2016, that the Tribunal dismissed the application pursuant to s. 426A(1)(a) and (b) of the Act as the Applicant did not appear before it to give evidence or present arguments at the time and date of the scheduled hearing.

4. The decision also records that the applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with

   
   

   s. 426B(5), and the letter also advised that the reinstatement of the application could be sought within 14 days of receiving the dismissal statement.

5. No application for reinstatement was made and, accordingly, the application was dismissed pursuant to s. 426A(1A)(b) of the Act.

   
   

   That subsection provides, relevantly:

   The Tribunal may, in circumstances where the applicant does not appear before the Tribunal, the Tribunal may, by written statement under s.426B, dismiss the application without further consideration of the application or information before the Tribunal.

6. The Applicant, via her solicitor, filed an application for an extension of time on 10 April 2107. The grounds of the application provide:

   (1)

   The Applicant applied for a protection visa under the

   
   Migration Act 1958

   (Cth).

   (2)The delegate to the Minister for Immigration refused to grant the visa to the applicant on 26 November 2014.

   (3)The applicant, through a migration agent, filed a review application with the Tribunal against the decision of the Minister.

   (4)The matter was set for hearing on 6 December 2016 at the Tribunal before a member.

   (5)The applicant was not made aware about the hearing date by her migration agent at the Tribunal and missed the opportunity to give evidence and to make arguments in favour of her case.

   (6)The authorised migration agent of the applicant, after receiving the decision, never disclosed the outcome of the application to the applicant.

   (7)The Tribunal advised the migration agent about the reinstatement option of the application and that the reinstatement could be sought within 14 days from the date of refusal.

   (8)The migration agent kept the applicant in the dark and did not tell her about the given option of reinstatement and lost the opportunity to appear before the Tribunal.

   (9)The applicant has no choice but to request for the extension of time on the basis that it was not her fault that she could not lodge an application before Court on time.

   (10)The applicant believes she has a good case with every likelihood of success.

   (11)In the interests of justice and fairness, that any delay in the filing of this application may be excused and the application be decided on its merits.

   (12)That the applicant reserves the right to add, amend or delete any of the grounds in support of this application.

7. The application was supported by a lawyer’s certification which is found in page 6 of the court book, which provides:

   I, Hugh Ford, the lawyer filing this document commencing migration litigation certify that there are reasonable grounds for believing that this migration litigation has reasonable prospect of success.

   That was certified by the applicant’s solicitor, Mr Hugh Ford, on

   
   

   7 April 2017.

8. Similarly, Mr Ford swore an affidavit on the same date, 7 April 2017, stating that the Applicant has reasonable grounds to appeal to the Federal Circuit Court against the decision of the Tribunal.

9. By an email dated 10 October 2017, Mr Brown, a solicitor for the

   
   

   First Respondent, wrote to Mr Ford in relation to the matter, stating:

   As briefly discussed today, we have reviewed the grounds of this application for an extension of time and note that they bear no relationship to the factual circumstances of the matter. We are puzzled as to why you have signed the 486I certification as at 7 April 2017, when the grounds contended for complain about the Applicant being kept in the dark by a migration agent, yet at all times in the course of the proceeding, the Applicant was communicated with by the Tribunal at the email address provided by her in the application for review, lodged on 19 June 2015, and a migration agent only came onto the record in April 2017, more than three months after the Tribunal decision was made and communicated to your client. We do not propose to enter into consent orders in relation to a matter where the grounds pleaded are patently false and we look forward to your client discontinuing her application.

10. Notwithstanding the clear terms of that communication, the application was not then discontinued or amended until an amended application was filed on 5 April 2018. The grounds of the application for an extension of time provide:

    (1)The Applicant approached a friend to help her in her appeal in the Administrative Appeals Tribunal.

    (2)The appeal was lodged with the Tribunal within time.

    (3)The Tribunal advised the friend, not the Applicant, that there would be a hearing in the matter.

    (4)The friend did not tell the Applicant about the hearing.

    (5)The Tribunal conducted a hearing into the matter. Neither the friend nor the Applicant were present at the hearing.

    (6)The Tribunal decided to dismiss the matter because the parties were not present.

    (7)The Tribunal has the legal authority to dismiss the matter if parties are not present.

    (8)The Tribunal, however, should have looked at the papers which were already before the Tribunal and made a decision on the papers. The Tribunal should have assessed the applicant’s claims for protection and made a decision as to whether the Applicant had a well‑founded fear of persecution.

    (9)It was not reasonable for the Tribunal to dismiss the application without assessing the Applicant’s claims in support of the application. The fact that the Applicant did not attend the hearing does not, of itself, mean that the Applicant does not have a well‑founded claim for persecution.

    (10)There is no logical or probative link between the failure of the Applicant to attend the hearing and the decision by the Tribunal to dismiss the application. It appears that the Tribunal is of the opinion that the failure of the Applicant to attend the hearing means that the Applicant did not have a well-founded fear of persecution.

    (11)The decision of the Tribunal to dismiss the application is a denial of procedural fairness. The matter should have been adjourned to allow the Applicant the opportunity to present her case.

    That application is, similarly, certified by Mr Ford on 4 April 2018.

11. The Applicant’s submissions are in much the same terms as the application dated 12 April 2018.

12. The First Respondent’s submissions, which were filed on 13 April 2018, put the Applicant’s solicitor, Mr Hugh Ford, on notice that costs would be sought against him, personally, as a result of his conduct in the proceeding.

13. The grounds for extending time have not been supported by any affidavit from either the Applicant or the friend of the Applicant referred to in the material. No explanation has been given for the

    
    

    10 week delay in making the application.

14. One of the factors to consider in an application of this kind is the length of the Applicant’s delay in lodging an application, the explanation for the delay, any prejudice to the Minister if the extension of time is granted, and whether the substantive application has any reasonable prospects of success. In that regard, I refer to

    
    MZABP v Minister for Immigration and Border Protection

    [2015] FCA 1391 (MZABP).

15. There was some discussion between the bench and Mr Ford and he contended that even if a case is hopeless, it may be in the interests of justice to run a hopeless case before the Court. In that regard, I refer to what Mortimer J said in MZABP at [62]:

    It will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court.[1]

    [1] [2015] FCA 1391.

16. In my view, there is no merit to the application and it is, indeed, a hopeless application. Section 426A(1A)(b) of the Act, the provision relied upon by the Tribunal to dismiss the application, expressly provides that it may dismiss the application without any further consideration of the application or information before the Tribunal.

17. The Applicant’s ground is the Tribunal has failed to accord her procedural fairness and the Tribunal should have and must have considered the written material put before it by the Applicant. This is even though there was no appearance by the Applicant, either before the Tribunal on 6 December 2016, nor was there any application to reinstate the proceeding. Given that the legislation clearly makes provision for the Tribunal to do exactly what it did, it cannot be said that the Tribunal acted in breach of the legislation.

18. The Applicant has provided to the Department an email address in the application for review of the delegate’s decision document.[2] This email address is in the name of the Applicant and was provided as the email contact by the Applicant. There is no evidence of failure to accord procedural fairness to the Applicant.

    [2] Court Book 62

19. Before the Court today, Mr Ford contended that the Applicant does not have an email address and the email address in her name is, in fact, not her email address but her friend’s email address or some other person’s email address. That strikes the court as fanciful. Furthermore, the Applicant communicated with the Tribunal via the aforementioned email address, as demonstrated by an email bearing her name dated

    
    

    26 June 2015.[3]

    [3] Ibid 66.

20. In opening remarks to the Court, Mr Ford, on behalf of the Applicant, stated that the Applicant accepts that there was valid notification of the hearing before the Tribunal. In those circumstances, in my view, the interests of justice are not served by extending time to file an Application in the court as there are no reasonable prospects of the outlined grounds succeeding.

21. In relation to the application by the Minister for costs pursuant to

    
    

    s. 486F of the Act, the Applicant’s solicitor, Mr Ford, has been put on notice of this application by the written submissions of the Minister and those are put in plain terms and clearly set out.

22. In my view, the Applicant’s solicitor, Mr Ford, is in breach of s. 486I of the Act in certifying that in regards to both the original application and the amended application that:

    [t]here are reasonable grounds for believing that this migration litigation has reasonable prospect of success.

23. In fact, there was no reasonable prospect of success in relation to the amended application. That ground was without reasonable prospects because it was based on a fundamental misreading of the legislation. Further no evidence was filed to support any of the assertions said to give rise to the grounds. In my view, when you make an allegation in a document filed with the Court that a registered migration agent has been involved in a case, and then you make no efforts to ascertain who that registered migration agent was and when they were appointed, that information is essential to determine whether it can be alleged that there was representative error on the part of the migration agent.

    
    

    He could not have certified that there were reasonable grounds without taking those steps. It shows a serious lack of due diligence on the part of the legal practitioner to fail to ascertain whether, in fact, there was any proper basis to the claim.

24. The solicitor for the Minister seeks costs in the sum of $3,667, being the scale costs. He has not sought the costs of this exercise to the client, but simply sought the costs on the scale and, in my view, it is appropriate that Mr Ford be ordered to pay those costs pursuant to

    
    

    s. 486F(1)(a).

25. I also note that s.486F(1)(c) provides that:

    The Court may order that where the person is a lawyer who has acted for the litigant in the migration litigation:

    (i)an order that the costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer; and

    (ii)an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.

26. In my view, it is appropriate that Mr Ford repay to the litigant the costs already paid by the litigant and I order that any costs incurred by the litigant in the commencement or continuation of the migration litigation are not payable to Mr Ford. It would be unsatisfactory for

    
    

    Mr Ford to receive payment for professional services when these services are of no value and the application should not have been brought on the grounds relied upon.

27. Mr Ford was given an opportunity to be heard in relation to the costs orders. Amongst other things, he submitted that because a costs order had been made against him personally by Judge Neville in this Court sitting in Canberra, he was being subjected to workplace bullying in breach of the Fair Work Act 2009 (Cth). He also asserted that the First Respondent’s solicitor was acting in breach of codes of professional conduct (bullying) by seeking a costs order against him personally.

    
    

    I reject these submissions.

28. He also stated that he was a practitioner with particular expertise in the field of migration law and had been a leader in the field for about

    
    

    30 years. That comment was made in response to a comment from the Court that he should consider obtaining some assistance from his professional body in relation to his approach to practising.

29. I require an affidavit to be filed by Mr Ford, setting out the amounts that have been paid by the applicant to him. I order that by

    
    

    4 pm, 3 May 2018, Mr Hugh Ford file and serve an affidavit disclosing all amounts paid by the applicant to him for services provided in relation to this proceeding and evidence that that sum has been repaid by him or his firm to the Applicant.[4]

    [4] The Court notes that Mr Ford filed an affidavit sworn 10 May 2018 stating that the sum of $5,500 had been repaid to the Applicant.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 28 May 2018