CET21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 440
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CET21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 440
File number(s): SYG 1316 of 2021 Judgment of: JUDGE GOODCHILD Date of judgment: 14 June 2023 Catchwords: MIGRATION - reinstatement application - application to set aside Notice of Discontinuance - whether the implied power to set aside is enlivened - where the applicant filed Notice of Discontinuance knowingly and voluntarily - application dismissed with costs Legislation: Federal Circuit and Family Court Act 2021 (Cth) s 140
Federal Court of Australia Act 1976(Cth) s 23
Migration Act 1958(Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.01
Federal Court Rules 2011 (Cth)
Cases cited: Chen v Monash University(2016) 244 FCR 424
DZY17 v Minister for Home Affairs [2018] FCAFC 196
Moussa v Minister for Immigration and Border Protection[2015] FCA 1280
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 21 April 2023 Date of hearing: 24 March 2023 Place: Sydney Counsel for the Applicant: Ms S Finegan Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 1316 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CET21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
14 June 2023
THE COURT ORDERS THAT:
1.The Minister’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application in a Proceeding filed 23 February 2023 be dismissed.
3.The applicant pay the first respondent’s costs in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
INTRODUCTION
These proceedings concern an Application in a Proceeding accepted for filing on 6 March 2023 (“the Reinstatement Application”), where the applicant seeks reinstatement of an Originating Application for judicial review.
The Originating Application for judicial review was filed by the applicant on 13 July 2021 (“the Judicial Review Application”) and is an application under s 476 of the Migration Act 1958(Cth) (“Migration Act”) for the review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).
Pursuant to r 13.01(1) and (2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the GFL Rules”), an applicant may discontinue an application by filing a Notice of Discontinuance at least 14 days before the day fixed for the final hearing of the application, or at a later time with the leave of the Court or a Registrar.
BACKGROUND
The applicant is a 40-year-old citizen of Bangladesh.
The applicant arrived in Australia on 17 February 2016 and on 15 August 2016 applied for a Protection (Class XA) visa. On 14 March 2017 a delegate of the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”), made a decision not to grant the applicant the visa.
The applicant sought a review of the delegate’s decision by filing an application with the Tribunal which was heard on 20 May 2021. On 22 June 2021 the Tribunal affirmed the delegate’s refusal decision.
On 13 July 2021 the applicant filed the Judicial Review Application in this Court.
On 25 August 2022, the applicant filed a Notice of Discontinuance and as a result, the applicant’s Judicial Review Application was discontinued.
The Notice of Discontinuance:
(a)bears the correct proceedings number, SYG1316/2021;
(b)correctly identifies the parties to the proceedings at Part A;
(c)identifies “Migration Application” as the title of the application to be discontinued with a date filed of 22 September 2021 at Part D;
(d)selects “All of them” for the orders sought to be discontinued; and
(e)purports to be “signed by and prepared by” the applicant on 25 August 2022 at Part E.
The Judicial Review Application bears the date 13 July 2021 as the date of filing. I treat the present application as an application to reinstate that Judicial Review Application.
The orders sought in the Reinstatement Application are as follows:
1)The Applicant is granted leave to withdraw the Notice of Discontinuation filed 25 August 2022.
2)The Application filed 14 July 2021 be reinstated.
3)The Applicant be granted leave to amend his Application filed 14 July 2021.
4)The matter be set down for hearing on a date to be fixed.
5)Any further orders as the Court deems fit.
(As per the original)
Initial proceedings before the Federal Circuit Court of Australia
As noted above, on 13 July 2021 the applicant filed the Judicial Review Application in the Federal Circuit Court of Australia (as it was then known) seeking judicial review of the Tribunal’s decision. The Grounds of Application were:
1)Stay in Australia.
2)This is because Bangladesh is too dangerous.
3)I do not feel safety to return Bangladesh.
(As per the original)
On 5 August 2021, the proceedings came before a Registrar in chambers and on that occasion procedural orders were made for the Judicial Review Application to be listed for final hearing on a date to be advised, and that the parties file their respective court material within a specific time-frame. In compliance with those orders, the first respondent filed a Court Book (broken up in two volumes) (“CB1” and “CB2”) on 22 September 2021.
On 6 June 2022, at a time when the substantive proceedings were yet to be allocated a final hearing date, the applicant filed an affidavit deposing to having no proper accommodation and to experiencing deteriorating health (“the applicant’s 6 June 2022 affidavit”). Various documents were annexed to that affidavit, including two medical certificates and a hospital discharge summary form dated 4 June 2022.
On 19 July 2022, initially by way of an email sent to the Court’s Migration Team, and then by filing a Notice of Address for Service, the applicant informed the Court that he had moved interstate. The applicant requested that the Judicial Review Application be transferred to a registry closer to him. This request was opposed by the first respondent and ultimately rejected by the Court.
On 25 August 2022 the applicant filed a Notice of Discontinuance seeking to discontinue the Judicial Review Application. According to court records, on the same day the applicant sent an email to the Court stating that he had withdrawn his application “because [his] health is now well”.
In September 2022, in light of the applicant discontinuing the Judicial Review Application, the first respondent sought a costs order against the applicant in accordance with the scale of costs prescribed in the GFL Rules. Those costs (in the amount of $3,737.00) were later awarded by a Registrar on 4 October 2022.
In mid-September 2022 the Court received further correspondence from the applicant in which he requested that his case be reopened.
In a return email dated 4 October 2022, the applicant was advised by the Court of the correct procedure for filing a reinstatement application and was also encouraged to seek independent legal advice.
THE REINSTATEMENT PROCEEDINGS
By his Reinstatement Application, the applicant seeks, in summary, the following orders:
·that he be granted leave to withdraw his Notice of Discontinuance filed 25 August 2022;
·that his substantive application filed on 13 July 2021 be reinstated; and
·that he also be granted leave to amend that substantive application filed on 13 July 2021.
In support of his Reinstatement Application, the applicant filed two affidavits.
One is an affidavit affirmed by the applicant (“the applicant’s 28 February 2023 affidavit”) and the other by Ms Amy Faram, a Legal Aid solicitor instructed by the applicant (“Ms Faram’s 28 February 2023 affidavit”). Annexed to Ms Faram’s 28 February 2023 affidavit is an “amended” Application for Judicial Review that the applicant would seek to file in the event the Court granted him leave to do so.
On 17 March 2023, the applicant filed an Outline of Submissions, accompanied by a further affidavit of Amy Faram affirmed 17 March 2023 (“Ms Faram’s 17 March 2023 affidavit”). This affidavit annexes a number of documents, including the applicant’s 6 June 2022 affidavit.
Counsel for the first respondent relied upon the following documents:
(a)CB1 and CB2 filed 22 September 2021; and
(b)affidavit of Sivarama Krishnan Valliappan, affirmed and filed 22 March 2023 (including pages missing from the Court Books).
When the hearing commenced before me on 24 March 2023, counsel for the applicant was concerned that insufficient opportunity had been provided to the applicant to make fulsome submissions should the Court determine to reinstate the Judicial Review Application and then go on to consider exercising its discretionary power with respect to those proceedings. In the circumstances, orders were made for the parties to file and serve further submissions with respect to the prospects of success of the applicant’s proposed amended Application for Judicial Review. Those further submissions were filed by the applicant on 19 April 2023 and by the first respondent on 21 April 2023.
Applicant’s evidence
The applicant’s 28 February 2023 affidavit, gives evidence to the following effect:
(a)he has experienced very difficult periods during the last five years including homelessness;
(b)he had been caught up in a dispute in the Buddhist community which ended in proceedings in a court which had a psychological impact upon him. This was a very stressful time;
(c)in July 2022, in what he describes as precarious circumstances, he travelled to Victoria;
(d)he tried to have his migration proceedings moved to Victoria. He spoke to someone in the Registry. He was told to talk to a lawyer. He sought legal advice in July 2022 from Victoria Legal Aid (“VLA”). He was referred to a number of charities by VLA;
(e)he stated he was not thinking clearly and was extremely stressed, that he could not sleep properly because of the problems with his stomach, that he felt sick if he ate and sick if he did not eat;
(f)he stated that he felt dizzy and often had headaches, that he felt terrible and the thought of court made him feel worse and he would start to feel even more nauseated and lightheaded, but could barely think of anything else; and
(g)he stated that on 17 August 2022 he went to hospital in Sunshine thinking that he had a heart attack, but later understanding the pain he was in was caused by the inflammation around his heart from pericarditis as well as Gastroesophageal Reflux Disease (GORD).
Of the circumstances at the time leading up to the filing of the Notice of Discontinuance on 25 August 2022, he says:
26. One of the doctors that I spoke with said that if the court proceeding was causing me so much stress and was clearly so bad for my health, then maybe I should not do it. They said I was too stressed and that I need to prioritise my health. Because of this medical advice, I believed at the time, and still believe, that the Court proceedings was causing stress that was making the symptoms of these illness worse.
27. I could think of nothing else that I could do that might help me feel better, and so on 25 August 2022(sic), I went to the Court to discontinue my proceedings. A very kind lady at the Registry asked me if I had seen a lawyer. I said I hadn’t but that I had to do it. On that day, with the assistance of the Registry, I filed the Notice of Discontinuance.
The applicant was not represented at that time and he did not speak with a lawyer about discontinuing his case.
The applicant further stated:
29.In my mind I thought I would go to Thailand to a Temple there to recover my health and would then return to Australia. I was in a great deal of pain, and I was just wanting to find peace. I would later find out that I couldn’t leave the Australia without a bridging Visa B and I was refused this.
The applicant further states:
41.It was a terrible mistake for me to discontinue my case, I felt like I had no choice at all. I am not safe in Bangladesh and I remain fearful for my life. I humbly ask that the court please reinstate my application, so that the decision in my case can be judicially reviewed.
On 13 September 2022, 16 days after he filed the Notice of Discontinuance, the applicant filed a second application with the Tribunal to review the decision of the delegate. On 24 January 2023, the Tribunal determined it did not have jurisdiction in the matter as the delegate’s decision is no longer a “reviewable decision” in circumstances where the Tribunal had previously received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Migration Act.
Applicant’s written submissions
By written submissions, the applicant submits that, proximal to the time the Notice of Discontinuance was filed, on or around 25 August 2022, he was under extreme stress due to:
(a)suffering from pericarditis with ECG changes, which was diagnosed on 17 August 2022;
(b)suffering from ongoing chronic GORD and gastritis requiring medication and procedural intervention, which was limited by his ability to pay for treatment;
(c)suffering from anxiety and depression, with treatment by his General Practitioner; and
(d)suffering from insecure housing and homelessness.
The applicant relied upon medical records which described the pain caused by his health problems as excruciating. On one occasion the applicant thought that he was suffering from a heart attack, noting that the symptoms of pericarditis and GORD can be very similar to the symptoms of a heart attack.
The applicant submitted that the pain he was suffering, and the untreated underlying anxiety and depression, his housing uncertainty and his employment and visa uncertainty was causing him great stress at the relevant time.
The applicant submitted that his doctor informed him that if the Court proceeding was negatively impacting his health, that reducing stress was important in improving his health and, as such, the applicant should consider not continuing with the Court proceedings. The applicant submitted that after taking into account the advice from a doctor and his severe suffering, he proceeded to file the Notice of Discontinuance. His evidence was that he was not represented at the time and he did not seek advice from a lawyer.
The applicant submits he had a complete lack of understanding of the effect of the filing of the Notice of Discontinuance. The written submissions point to the applicant’s lack of legal advice about the filing of the Notice of Discontinuance or what other options were available to him and the subsequent filing by the applicant of a second application to the Tribunal to review the delegate’s decision, in support of the submission of the complete lack of understanding by the applicant of the effect of the filing of the Notice of Discontinuance.
In support of the submission that he had a complete lack of understanding of the court process the applicant also relies upon an email sent from a lawyer from the VLA Migration Program to the Court’s Migration Team dated 28 September 2022. That email said:
We have been instructed by [CET21] [DOB] to seek clarification regarding the status of his appeal. The Applicant has complex health issues, is very unwell and is confused about what is happening with his court matter.
(As per original)
The written submissions of the applicant assert that the Court and the first respondent were on notice that the applicant was in a state of severe suffering prior to the Notice of Discontinuance being filed. The applicant points to the affidavit that he filed on 6 June 2022, annexing the medical records said to evidence his various issues including health issues and homelessness and seeking advice from the Court regarding his case. In this affidavit the applicant states:
… Day-to-day my health is getting worse and I email you with many questions. This is because I cannot decide anything in my life. Right now my situation is very bad. Please help me fix my issues.
The applicant submitted that the balance of convenience in the matter lies with the applicant such that should the application not be permitted, the applicant faces deportation. The only inconvenience to be suffered by the first respondent, according to the applicant, will be the costs of the Judicial Review Application, which would otherwise have been borne by the first respondent had the Notice of Discontinuance not been filed and resolved at final hearing.
The applicant says that the Notice of Discontinuance was filed at a time in the proceedings when the matter had not progressed significantly.
In oral submissions, counsel for the applicant identified that the “heart” of the argument for the applicant was that the applicant did not file the Notice of Discontinuance in circumstances that were deliberate or informed.
Counsel for the applicant pointed out that the applicant had been “waiting” for 13 months before filing his Notice of Discontinuance, stressing that the applicant had been pursuing his application for a protection visa for over 5 years.
Counsel for the applicant submitted, correctly, that the decision to file the Notice of Discontinuance would need to be both deliberate and informed to satisfy the test, such that if the applicant can prove that it was not deliberate or it was not informed then the applicant succeeds.
Counsel for the applicant submitted that because of the pain and suffering that the applicant was experiencing at the time he filed the Notice of Discontinuance, the filing could not have been a deliberate or informed act. Further, it was submitted that because the applicant did not have legal advice, he could not have known the consequences of what that filing meant.
Counsel for the applicant took the Court in some detail through the applicant’s medical material submitting that on or around 25 August 2022 the applicant was under extreme physical stress which included pericarditis, extreme reflux, anxiety and depression and insecure housing. Counsel submitted that he was suffering from these issues for quite some time and was untreated in the time leading up to the date of discontinuing the proceedings.
Counsel directed the Court to [26] of the applicant’s 28 February 2023 affidavit, which for convenience, I reproduce again:
One of the doctors I spoke with said that if the court proceedings causing me so much stress and was clearly so bad for my health maybe I should not do it. They said I was to stress. I need to prioritise my health. Because of this medical advice I believed at the time and I still believe that the court proceedings causing stress that would make the symptoms of reflux worse.
As I understand counsel’s submissions, the applicant taking this “advice” from a doctor and not a lawyer, in the circumstances of the ongoing severe suffering he was experiencing, accounts for why the applicant proceeded to file the Notice of Discontinuance.
When asked why this did not constitute a deliberate act, counsel for the applicant submitted that it was better characterised as a “last resort type act”, “internal coercion”, the type of act that might be associated with absolute desperation.
Counsel for the applicant does not suggest that the applicant did not have capacity. Counsel drew an analogy with a “battered wife syndrome defence to murder” submitting that ill-managed and untreated chronic chest pain and ongoing suffering over a long period of time led to the applicant’s mental reasoning becoming distorted.
Counsel for the applicant conceded that there was no evidence from a psychologist or psychiatrist that would support the contention that because of the extreme pain that the applicant was suffering, an act undertaken at the relevant time would not have been deliberate.
Counsel submitted that the use of the word “mistake” (at [41] applicant’s 28 February 2023 affidavit) described an error that was made on the day, but did not go to the applicant’s state of mind generally, such that although the applicant acknowledged that he had made an error, that did not mean that he was ultimately responsible for that error.
With respect to informed consent, counsel for the applicant submitted that in circumstances where the applicant did not have legal advice about the effect of filing a Notice of Discontinuance or what other options were available to him, then his action could not be considered “informed”.
Counsel for the applicant relied upon the conduct of the applicant after the filing of the Notice of Discontinuance to further support the submission that his actions were not informed. Because the applicant made a second application to the Tribunal shortly after he filed his Notice of Discontinuance, counsel submitted that Court can infer that he did not understand the consequence of his filing the Notice of Discontinuance.
Counsel for the applicant addressed the Court on the discretion contained within s 140 of the Federal Circuit and Family Court Act 2021 (Cth) (“the FCFCOA Act”) referring to the integrity of the “refugee appeal process”. The submission being that in order to protect the integrity of the refugee processing system where the courts are dealing with people who have suffered under regimes that persecute them and dealing with broken, stressed litigants who are effectively fighting for their lives, the Court’s discretion should be exercised fairly so that the applicant is given the best opportunity to be afforded protection. Counsel for the applicant referred particularly to the applicant as a vulnerable gentleman, as someone who has taken a vow of poverty and dedicated his life to service.
First respondent’s submissions
The first respondent submitted that the evidence does not establish that the applicant did not “knowingly and voluntarily” file a Notice of Discontinuance.
The first respondent submitted that the applicant was aware that the filing of the Notice of Discontinuance would bring an end to his proceedings. The first respondent pointed to three matters in support of that submission:
(a)firstly, the applicant signed the first court date information sheet on 31 July 2021 which advised that at the conclusion of the proceedings the usual order was that the unsuccessful party pay costs and therefore if he was unsuccessful or discontinued he may have to pay the first respondent’s legal costs;
(b)secondly, the applicant was informed in a telephone conversation with a solicitor for the first respondent that the issue of costs will arise once the proceedings were finalised by either his withdrawal or by the dismissing of his application; and
(c)thirdly, the first respondent points to the applicant’s own evidence that he was assisted by the Registry when filing the Notice of Discontinuance and that he wanted to prioritise his health consistent with the suggestion of one of his doctors.
The first respondent submitted that the fact that the applicant did not appreciate the legal consequences of filing a Notice of Discontinuance at the time, namely, the consequences for his visa status, does not establish the applicant did not knowingly and voluntarily file a Notice of Discontinuance.
The first respondent submitted that the applicant’s medical evidence does not establish that his judgement and insight were so impaired at the relevant time that he did not make a deliberate and informed decision to discontinue his proceedings. Of the applicant’s medical evidence, the first respondent submitted:
(a)the letter of diagnosis dated 18 August 2022 and the referral dated 25 August 2022 make no reference to the applicant’s mental health at that time and notes that he was living in residence in Sunshine, Victoria with a friend;
(b)the housing pathways medical assessment postdates the Notice of Discontinuance by almost four months and does not indicate that the applicant’s judgement or insight was impaired; and
(c)the medical certificates annexed to the applicant’s affidavit affirmed 6 June 2022 predates the Notice of Discontinuance by over three months and make no reference to whether the applicant’s capacity was impacted.
The first respondent submitted that the applicant made a deliberate and informed decision to discontinue his proceedings acting on the advice of a doctor and made a conscious decision to prioritise his health and no longer continue with his application for judicial review. The first respondent submitted that there was nothing in the evidence to raise any concern in relation to the advice given by the doctor and nothing to raise an arguable suggestion of fraud or duress. The fact that the applicant has changed his mind because he considered it was a mistake, that he was better able to cope now that he has the assistance of lawyers or that he did not appreciate the difficulties he would encounter in respect of subsequently obtaining a visa, does not establish the applicant did not knowingly and voluntarily file a Notice of Discontinuance.
In oral submissions, counsel for the first respondent acknowledged the health conditions of the applicant and accepted that the applicant had difficulty obtaining accommodation. Counsel submitted that none of those things by themselves indicate that the applicant was not able to make decisions at the relevant time. Counsel submitted that the there was no evidence that the applicant thought that by discontinuing he would be able to start his case again or that he might have been able to go back to the Tribunal again. Counsel accepted that the applicant may not have understood the migration system, but the fact that he was unrepresented and that he may have been generally confused about his options did not matter. All that mattered was that he understood that he was ending the Court case and counsel for the first respondent said that was “plain”.
Counsel for the first respondent submitted that on the applicant’s own evidence he made a deliberate act that he knew would end his court case. Counsel referred to [26] of the applicant’s affidavit and submitted that this evidences that the applicant understood that he was given advice that he should not pursue the case. Counsel submitted that he followed that advice, ending the proceedings so that it would not cause further stress to him.
Counsel for the first respondent submitted that there was no evidence from the applicant that he thought that he might be able to start his court case again despite the filing of the Notice of Discontinuance.
RELEVANT LAW
The parties agree on the legal principles relevant to the Court’s jurisdiction to set aside a Notice of Discontinuance. The difference between the parties lies in how these principles are applied to the facts of this case.
There is no express power to set aside a Notice of Discontinuance under either the GFL Rules or the Federal Court Rules 2011 (Cth). The Court does, however, have an implied power that may be utilised in exceptional circumstances to reinstate a discontinued proceeding.
In Moussa v Minister for Immigration and Border Protection,[1] after considering a number of authorities concerning the setting aside of a Notice of Discontinuance, Perram J at [13] considered the following four principles to be distilled from those authorities:
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 injustice.
3.There is jurisdiction to set aside such a notice 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 (“Moussa”).
In Chen v Monash University,[2] per Barker, Davies and Markovic JJ, at [40], [41] and [46], the Full Federal Court observed in respect to s 23 of theFederal Court of Australia Act 1976(Cth) (“the FCA Act”) that:
[2] (2016) 244 FCR 424 (“Chen”).
[40] The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
[41]We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
…
[46] While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
(Emphasis added)
Section 140 of the FCFCOA Act is in similar terms to s 23 of the FCA Act.
The implied power is not at large. It is only enlivened in exceptional circumstances. In Chen, the Court noted at [47] that:
... we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
The Full Federal Court in DZY17 v Minister for Home Affairs[3] at [46] per Besanko, Griffiths and White stated:
…There is no scope for the applicant to argue that her filing of the notice of discontinuance was an abuse of process having regard to the meaning of that phrase in cases such as Moussa, which stand for the proposition that no abuse of process is involved where a party knowingly and voluntarily files a notice of discontinuance as was the case here…
[3] [2018] FCAFC 196 (“DZY17”).
Even if enlivened, the exercise of the power to reinstate is discretionary, and the prospects of success of the proposed application may also be taken into account in the final exercise of the Court’s discretion: Chen at [48].
CONSIDERATION
Is the Court’s power to reinstate enlivened?
For the reasons that follow, I find that the circumstances of this case are not sufficient to enliven the Court’s power to reinstate the discontinued application. I find that the applicant voluntarily and knowingly signed and filed the Notice of Discontinuance. I find that there is no evidence that the Notice of Discontinuance involved an abuse of process affecting the applicant. Nor is there evidence that its filing was procured by fraud.
The applicant filed his Judicial Review Application in this Court on 13 July 2021 seeking to review the Tribunal’s decision. He was unrepresented. He filed an affidavit on 6 June 2022 where he outlined his then-current circumstances and how he had sought assistance to “help me fix my issues”. He annexed medical records to this affidavit. He was engaged with the litigation.
The applicant first sought legal advice from VLA in July 2022 when he was seeking to have his migration proceedings transferred to Melbourne. In the applicant’s 28 February 2023 affidavit he stated:
[19]Because I was now in Melbourne, I tried to get my matter moved to Victoria but I was told by someone at the Registry that I couldn’t - and that I should talk to a lawyer.
[20]In July 2022, I spoke to a lawyer at Victoria Legal Aid (VLA), and they said that they could look at my case but that it would take many years to resolve and that I wouldn’t get a lawyer for a long time.
The applicant deposed to being very unwell and struggling to feed himself at this time and he was referred by VLA to the Asylum Seeker Resource Centre (“ASRC”) for assistance with food and medical support.
On 25 August 2022, the day the Notice of Discontinuance was filed, the applicant attended the Registry in person. He says that a “kind lady” asked him if he had seen a lawyer. His response was “I hadn’t but I had to do it”. In the circumstances where the applicant had been active in the litigation, filed evidence, sought legal advice, where he has been told that his case would take many years to resolve and that he would not get a lawyer for a long time, there is no explanation from the applicant why he did not again seek assistance from a lawyer prior to the filing of the Notice of Discontinuance, especially in circumstances where he was urged to seek that advice. In light of the advice given in July 2022 that his case would take many years to resolve, it is difficult to accept that the applicant did not know the effect of the filing of the Notice of Discontinuance would be to discontinue the proceedings.
Further, the applicant deposed to speaking to VLA again around September 2022 and at [32]:
… explained that I didn’t want to go back to Bangladesh but that I had discontinued my case because my health was so bad
This is not the evidence of a person not making a deliberate decision to discontinue proceedings, knowing that he discontinued his case because of concern for his health.
On 17 August 2022 the applicant attended the hospital in Sunshine as he was in extreme pain. It was initially thought that he was having a heart attack and then he was told he was having a panic attack. At this point he was diagnosed with pericarditis, having previously been diagnosed with GORD.
Having regard to the basis upon which the applicant puts his case, a close consideration of the applicant’s medical records reflects the following:
Date Practitioner/Hospital Summary 9 April 2022 Dr P. S. Medical Certificate … is suffering from stress and anxiety along with gastritis & GORD - currently on medication &ref him to gastroenterologists for further review & mx. it would be great help for him if you could extend his assignment submission date, so that he can complete this assignment. 9 May 2022 Dr S. V. – To whom this may concern …Life has been a struggle…He has difficulty with his studies having no proper accommodation and financial support. He had seen a psychologist and psychiatrist in the past. His immigration status in Australia is unclear which adds to his stresses affecting his health. 4 June 2022 Royal Prince Alfred Hospital ED Discharge Summary after o/n stay. …presented to RPA ED with an exacerbation of his known GORD. He is already on esomeprazole and gaviscon which provides some relief. His symptoms are particularly bad at night when lying superfine and cause his pain in the throat and breathing difficulty until setting up. 18 August 2022 Sunshine Hospital Emergency Department
To GPDiagnosis PERICARDITIS… Presented to ED today the central chest pain radiating to interscapular region… Consistent with pericarditis… Reported dizziness nausea and headache 16 December 2022 Royal Prince Alfred Hospital Attendance as outpatient 16 December 2022 First Care Medical Centre Enmore NSW Medical Assessment for Department of Housing showing history of Hiatus hernia, GORD and medication. Psychological issues affect his capacity to cope.
I agree with the first respondent’s observations with respect to the medical evidence relied upon by the applicant. A close consideration of that evidence indicates the records either pre-dated or post-dated the date when the applicant attended the Registry in person and filed the Notice of Discontinuance. Further, whilst it is not disputed by the first respondent that the applicant has been suffering from a number of medical conditions, some chronic over a period of time, there is no evidence that on the day in question or closely proximate to the day in question, that the applicant was so affected by the medical conditions that his judgement or insight was impaired.
The evidence is that, because of the medical advice he received at the time, the applicant believed that the Court proceedings were causing him stress and making the symptoms of his illnesses worse and that is why he made the decision to discontinue the proceedings.
There is no evidence that the applicant’s mental health at the time of the discontinuance was such as to impair his capacity to act voluntarily and knowingly when he lodged the Notice of Discontinuance.
Counsel for the applicant did not suggest that the applicant’s case was one where he lacked capacity at the relevant time. Counsel for the applicant agreed that there was no evidence from a psychologist or a psychiatrist that would support a submission that, because of the extreme pain that the applicant was suffering, his actions at a particular time would not have been deliberate.
There is no evidence to support the submission that the applicant did not understand the effect of the Notice of Discontinuance at the time of filing. The applicant stated that in his mind, he thought he would go to Thailand to a temple to recover his health and would return to Australia. On his own evidence, the applicant explained that he did not want to go back to Bangladesh, but he had discontinued his case because his health was so bad.
The fact that the applicant considers the discontinuing of his case to be a terrible mistake does not mean that at the time that he filed the Notice of Discontinuance it was not an act undertaken knowingly and voluntarily. Nor does the fact that the applicant now has legal assistance, is able to manage better and has realised that it was a terrible mistake to discontinue his case, establish that the applicant did not knowingly and voluntarily file the Notice of Discontinuance at the relevant time.
With respect to the applicant’s submission that the Court’s discretion contained within s 140 of the FCFCOA Act may be enlivened to preserve the integrity of the refugee appeal process, the authorities make it clear that the implied power is not at large and it would be inconsistent with the principle of finality that, notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason: Chen at [47].
The applicant’s filing of the Notice of Discontinuance was a deliberate and informed act. I am not persuaded that in order to protect the integrity of the Court’s processes that an order should be made to reinstate the application.
The merit of the Judicial Review Application or the Amended Judicial Review Application is not relevant to the question of whether the implied power is enlivened and it is unnecessary for the Court to consider the applicant's prospects of success if the Court finds the implied power is not enlivened.[4]
[4] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048 at [21] per Gleeson J; CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [173] per Kenny J.
In the circumstances, the Court’s implied power under s 140 of the FCFCOA Act to set aside the Notice of Discontinuance is not enlivened.
As I have found that the Court’s implied power to set aside the Notice of Discontinuance is not enlivened, the Reinstatement Application must be dismissed and I will so order. It remains to say that the Court has utmost sympathy for the circumstances of the case. It would be desirable that consideration be given by the first respondent to any available avenue of Ministerial intervention.
COSTS
The first respondent seeks costs against the applicant in the scale amount of $4,189.38.
Given the circumstances of this case, and noting that the applicant was wholly unsuccessful in his application, I also order that the applicant pay the first respondent’s costs in the amount of $4,189.38.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 14 June 2023
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