BWT19 v Minister for Home Affairs
[2020] FCCA 737
•2 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWT19 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 737 |
| Catchwords: MIGRATION – Application in a case seeking that orders for summary dismissal be set aside – whether the Court exercise discretion to set aside orders made in the applicant’s absence – abuse of process – no prospects of success on the substantive application – application dismissed with costs. |
| Legislation: Federal Circuit Court Rules2001, r.16.05(2)(a) Federal Court Rules 2011, r.36.03 Migration Act 1958, ss.375A, 438(1)(b) |
| Cases cited: Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 SZRJY v Minister for Immigration and Citizenship (No.2) [2012] FMCA 756 SZUFS v Minister for Immigration and Border Protection [2015] FCA 991 |
| Applicant: | BWT19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1406 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 March 2020 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 2 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondents: | Ms Nyabally |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Application in a Case filed 31 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the application fixed in the sum of $1,000.
The time for filing any notice of appeal under Rule 36.03 of the Federal Court Rules 2011 be extended to the date 28 days after publication of the judgment that was delivered orally.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1406 of 2019
| BWT19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
By Application in a Case dated 31 October 2019, the applicant seeks an order setting aside the orders of this Court made on 7 October 2019. Those orders dismissed the applicant’s application for judicial review lodged on 8 May 2019. Those orders were made in the applicant’s absence, pursuant to the Federal Circuit Court Rules2001 (‘Rules’).
Background[1]
[1] Adopted from the Minister’s written submissions filed on 20 September 2019, from paragraphs [4] to [10].
The applicant is a female citizen of the People’s Republic of China. She first arrived in Australia on 10 January 2012 as the holder of a Student Guardian (Subclass 580) visa, which was valid until 31 July 2012. She applied for a Protection (Class XA) visa (‘visa’) on 21 December 2012.
In the statement which accompanied her visa application, the applicant claimed to fear harm from her former business partner, Mr L., due to her having discovered and reported the poor practices of the company that she set up with Mr L. The applicant claimed to have been threatened and assaulted as a result of her conduct and she says she was forced to flee.
A delegate of the Minister refused to grant the visa on 9 August 2013. The delegate found the applicant’s uncorroborated claims to be ‘lacking in substance and credibility’.[2]
[2] Annexure SJN-3 to the affidavit of Siran Jennifer Nyabally affirmed on 9 August 2019, page 17.
The applicant then lodged an application for review of the delegate’s decision with the Tribunal. She participated in a hearing on 9 April 2014 and was assisted by an interpreter in the Mandarin and English languages. On 23 May 2014, the Tribunal affirmed the decision under review. The Tribunal rejected the applicant’s claims as implausible, contradictory and lacking in credibility and identified significant inconsistencies between the applicant’s evidence and her supporting documents.
The Tribunal did not accept that the applicant left the People’s Republic of China due to her fear of Mr L, or that she was threatened or assaulted as claimed. The Tribunal was satisfied that the applicant did not face a real chance of serious harm or a real risk of significant harm if returned to China.
The applicant then filed an application for judicial review in this Court on 16 June 2014 where she sought to challenge the decision of the Tribunal made on 23 May 2014. The matter was listed for a show cause hearing before Judge Emmett on 30 July 2014. At the end of that hearing, Judge Emmett delivered ex tempore reasons dismissing the application for review on the basis that the applicant had not raised an arguable case for the relief claimed.
On 8 May 2019, the applicant filed an application with this Court seeking an extension of time to apply for judicial review of the decision of 23 May 2014. She sought to extend time to review the same decision of the Tribunal which had been dismissed by Judge Emmett. The grounds of review in the May 2019 application contend, inter alia, that the Tribunal erred by failing to disclose to the applicant the existence of a certificate issued pursuant to sections 438 and 375A of the Migration Act 1958 (‘Act’), and to give her an opportunity to make submissions on its validity.
Subsequent to the May 2019 application, the Minister filed an Application in a Case on 9 August 2019 seeking orders pursuant to the Rules to summarily dismiss the substantive application on the basis that it is an abuse of process. On 20 September 2019, the Minister filed written submissions in support of the application for summary dismissal.
The matter was listed for hearing of the Minister’s Application in a Case on 7 October 2019. On that date, the applicant was absent from the hearing and the Court made orders dismissing her application and ordered her to pay the Minister’s costs. On 15 November 2019, the applicant lodged the present reinstatement application, in which she seeks to set aside the 7 October 2019 orders and have the matter listed for hearing.
The application before the Court is therefore an Application in a Case for relief sought under rule 16.05(2)(a) of the Rules. The application is therefore to be treated as an Application in a Case for relief under rule 16.05(2)(a) of the Rules.
Consideration
The principle consideration in this matter is whether it would be in the interests of justice to set aside the orders made by the Court in the absence of a party: see SZRJY v Minister for Immigration and Citizenship (No.2) [2012] FMCA 756 at [15]. The following considerations, as set out by Judge Driver in SZUFS v Minister for Immigration and Border Protection [2015] FCCA 545 and affirmed by Justice Reeves in SZUFS v Minister for Immigration and Border Protection [2015] FCA 991, are relevant to the exercise of the discretion:
a)Whether there was an adequate reason for the non-appearance of the party.
b)Whether there was a delay in making the application to set aside the orders made in the party’s absence.
c)Whether there is any prejudice to the Minister in reinstating the matter that could not be adequately compensated for by an order for costs; and
d)Whether the applicant has a reasonably arguable prospect of success on the substantive application.
The Minister properly concedes that he would not suffer any prejudice arising from the reinstatement of the substantive application that could not be cured by an order for costs. The Minister also concedes that the delay in filing the reinstatement application was not lengthy.
I therefore now turn to deal with whether the applicant has an adequate reason for her non-appearance and whether she has a reasonably arguable case or prospect for success on the substantive application.
The applicant filed an affidavit accompanying the Application in a Case. The affidavit provided the following explanation for her non-attendance:
‘1. I am the applicant.
2. I did not know an application in a case listed on 7 October 2019 for hearing.
3. I have been sick at that time. Annexed and marked “A” is a copy of medical certificate.
4. I now make application to seek orders as mentioned in the Application in a Case.’ (sic)
The certificate accompanying the affidavit simply says that the applicant was suffering from dizziness and imbalance and was unfit for work from 4 October 2019 to 25 October 2019. This assertion that the applicant did not know of the time and date of the hearing on 7 October 2019 cannot be sustained. Communications sent from the Minister’s solicitors disclose that the applicant was informed of the date of the hearing, on 23 August 2019 and 20 September 2019. Further, as I understood her today, she appeared to concede that she knew the date of the hearing.
There is then the medical certificate. There are a number of difficulties with it. It does not provide any details about her illness or prognosis. It does not state how she remains unfit for work or what the criteria for her work are. First and foremost, however, it is a certificate that attests to unfitness for work. Of itself, it is not evidence of incapacity to attend or participate in a hearing. The applicant said today that she was required to undertake a CT scan. She indicated that she has not followed up with that and has not attended the scan. She nevertheless attended the hearing today. Further, she has attended the hearing today and claimed that, even today, she is suffering the same ailments. This further undermines her claim that she was unable, for medical reasons, to attend the last hearing.
In addition to the above, I note that the applicant has made no attempt to advise the Minister’s solicitors in October 2019, in advance of the hearing then, as to her ill health. This is despite having received the information referred to earlier from the Minister’s solicitors. For all of the above reasons, I find the applicant does not have an adequate reason for her non-appearance in October.
I turn to deal with the prospects for success on the substantive application. As I have noted above, the hearing on 7 October 2019 was a hearing to determine the Minister’s application for summary dismissal of the matter. As should be apparent from the chronology that I set out earlier, that application was brought in the following circumstances:
a)First, the applicant was seeking a review of a decision of the relevant Tribunal on 23 May 2014. That is, the relevant decision was made some five years earlier. She was seeking an extension of time to review that decision.
b)Second, the applicant had already sought to review that decision in this Court. That application had been determined unfavourably for her by Judge Emmett on 30 July 2014. I have reviewed the decision of Judge Emmett. It is apparent that Judge Emmett carefully considered the applicant’s claims and analysed them carefully prior to dismissing them.
In my view, two reasons present themselves as to why the present application is weak in the context of assessing prospects of success on the substantive application. The first matter is the abuse of process. The second relates to the considerations around the section 438 certificate, which in my view, are weak. I deal with each of these in turn.
Under the Act and the Rules, the Court has the power to give summary judgment dismissing an application. Relevantly, the power may be exercised if the Court is satisfied that the proceeding or claim for relief is an abuse of process.
The principles relating to abuse of process are set out in the judgment of Chief Justice Mason and Justices Dean and Dawson in the case of Walton v Gardiner (1993) 112 ALR 289:
‘The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. 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.’
(footnotes omitted)
I also note the comments of Justice Gageler in Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 at paragraphs [13] and [14]:
‘[13] The jurisdiction statutorily conferred on the Federal Magistrates Court by s 476 of the Migration Act to review a decision of the Refugee Review Tribunal is relevantly co-extensive with the jurisdiction of the High Court to review a decision of that Tribunal under s 75(v) of the Constitution. The exercise of statutorily conferred jurisdiction of that nature is an exercise of the judicial power of the Commonwealth to quell a controversy about existing legal rights and legal duties. To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution.
[14] The plaintiff’s application in the original jurisdiction of the High Court seeks to re-litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court. Her application is an abuse of the process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules 2004.’
(footnotes omitted)
This is a matter where the applicant has already exercised her right to seek a review of the Tribunal’s decision. That application was heard and determined by this Court. It was open to the applicant to seek to appeal the judgment of Judge Emmett, but she did not do so. She now seeks to agitate for a review again in this Court. It is difficult to think of a more straightforward case of abuse of process.
The applicant’s claims in respect of the section 438 certificate also do not assist her. I have had regard to the affidavit of Ms Nyabally of
9 August 2019. While a checklist on the department file in the applicant’s name suggested that folio 51 of the file contains information covered by section 438(1)(b) of the Act, no non-disclosure certificate appears on either the Departmental or Tribunal files. A review of the affidavit of Ms Nyabally has also identified that the folio is simply a booking slip for an interpreter and could not have materially affected the Tribunal’s decision in these proceedings.
For all of the above reasons, the application for reinstatement should be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 31 March 2020
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