Chahine v Minister for Home Affairs
[2018] FCCA 2454
•14 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAHINE & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2454 |
| Catchwords: MIGRATION – Application sought to set aside interlocutory orders of the Court in a previous proceeding dismissing an application for an extension of time – application in a case seeking to dismiss the application as an abuse of process – whether principles of res judicata and issue estoppel applied – whether extension of time application had reasonable prospects of success – application in a case granted. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 15, 16, 17, 18 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.10, 16.05 Federal Court of Australia Act 1976 (Cth), ss.22, 23 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5F, 65, 351, 395AA Migration Regulations 1994 (Cth), cl.802.211 |
| Cases cited: AQB18 v Minister for Home Affairs & Anor [2018] FCCA 1541 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 Chahin & Anor v Minister for Immigration & Anor (No. 2) [2017] FCCA 2097 Chen v Monash University [2016] FCAFC 66 |
| First Applicant: | HELENE CHAHINE |
| Second Applicant: | YOUSSEF NASSIF SAM |
| Second Applicant: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 958 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 14 August 2018 |
| Date of Last Submission: | 14 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Mr Turner, Turner Coulson Immigration Lawyers |
| Solicitors for the First Respondent: | Ms Dejean, Australian Government Solicitor |
ORDERS
THE COURT:
ALLOWS the application in a case filed by the First Respondent on 5 July 2018.
VACATES [1] of the orders made by Registrar Cho on 27 April 2018.
DISMISSES the application and the amended application pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the Applicants have no reasonable prospect of successfully prosecuting the proceeding, and pursuant to r.13.10(c) of the Rules on the basis that the proceeding is an abuse of process.
ORDERS that the Applicants pay the First Respondent’s costs on an indemnity basis.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 958 of 2018
| HELENE CHAHINE |
First Applicant
| YOUSSEF NASSIF SAM |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
Introduction
By application filed 6 April 2018, the Applicants originally sought an extension of time in which to seek judicial review of a decision of the First Respondent, the Minister for Home Affairs, made on 17 January 2018 in which the Minister determined that it would not be in the public interest to intervene under s.351 of the Migration Act 1958 (Cth). Before me today, Mr Turner, solicitor for the Applicants, conceded that this Court had no jurisdiction in relation to that application. However, by amended application filed 28 June 2018, the Applicants sought an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal dated 18 February 2016, and, pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth), to set aside the decision of Judge Manousaridis dated 1 September 2017 in a previous proceeding refusing to grant the extension of time to file an application for judicial review of the Tribunal’s decision.
The Tribunal affirmed a decision of the Delegate of the Minister to refuse the First Applicant, Ms Chahine, a Partner (Temporary) (Class UK) Visa under s.65 of the Act. The Second Applicant, Mr Sam, who is Ms Chahine’s son, was included in the application for Visa as a member of the family unit.
On 5 July 2018, the Minister filed an application in a case seeking to have the application to this Court dismissed as an abuse of process pursuant to r.13.10(c) of the Rules, in sum, because the amended application has already been the subject of a previous application for an extension of time which was refused, and, on the principles of res judicata and issue estoppel, such an attempt should be rejected. This is the application before me for hearing today.
Background
By way of brief background to the present proceeding, Ms Chahine, is a citizen of Lebanon, and Mr Sam is her adult son. Ms Chahine entered Australia on 25 August 2002 after being granted a Temporary Work (Skilled) (Subclass 457) visa as a dependant of her late husband who died in 2012. On 28 June 2014, Ms Chahine applied for the Visa, relying on her second marriage, with her second husband being the sponsor for that Visa.
I am informed by Mr Turner, the Applicants’ solicitor, from the Bar table that Mr Sam, arrived in Australia with his mother; and, whilst there is no indication from Judge Manousaridis’ or the Tribunal’s decision, it appears that the Mr Sam is now a young man, possibly in his twenties. As Mr Turner conceded, if Ms Chahine failed to satisfy the primary criteria for the Visa which Ms Chahine applied for, her son would not meet the secondary criteria applicable to him.
As is apparent, the Delegate refused the Visas (sought by Ms Chahine and Mr Sam) on 14 November 2014. The Applicants lodged an application for review of that decision with the Tribunal on 1 December 2014.
On 7 January 2016, the Applicants attended a hearing before the Tribunal. The Tribunal decision records that the Applicants appeared before the Tribunal with the benefit of an interpreter. They were also accompanied by a registered migration agent, who, it is apparent from [7] and [17] of the Tribunal’s decision, appeared at the hearing and requested additional time to provide a written response after the hearing, but did not provide any further submissions. I note that Ms Chahine was also invited to provide additional documents after the hearing regarding her and her sponsor’s relationship. But again, no further information was received prior to the Tribunal’s decision.
On 18 February 2016, the Tribunal affirmed the Delegate’s decision on the basis of its finding that Ms Chahine did not meet the definition of “spouse” under s.5F(2) of the Act, and so did not meet cl.820.211 in Schedule 2 of the Migration Regulations 1994 (Cth).
On 8 June 2016, the Applicants, at that time self-represented, filed an application for an extension of time to seek review of the Tribunal’s decision in this Court. On 10 August 2017, the Applicants attended the hearing before Judge Manousaridis. They were self-represented.
From [8], [18] and [19] of his Honour’s judgment in Chahin & Anor v Minister for Immigration & Anor (No. 2) [2017] FCCA 2097, it is apparent that the Applicants had the benefit of an interpreter at the hearing before Judge Manousaridis, and were given an opportunity to make submissions. In addition, it is apparent at [8] of his Honour’s judgment, that his Honour accepted statements from the Bar table about why they did not file their application within 35 days.
Grounds for extension of time and review
The grounds for the application for extension of time as set out in the amended application are as follows (without alterations):
1. The Applicants were "assisted" throughout their visa process by a Mr. Toufic Laba Sarkis.
2. Mr. Sarkis is neither a Solicitor or a Registered Migration Agent.
3. He has been described by the Full Federal Court as a con man whose conduct amount to fraud on the Federal Circuit Court.
4. The conduct of Mr. Sarkis in relation to the Applicants' dealings with the Department of Home Affairs, Administrative Appeals Tribunal and the Federal Circuit Court can also be described as fraud on these bodies.
The amended application sets out the following 3 grounds and particulars for judicial review (again, without alterations):
1. The Second Applicant was denied procedural fairness.
PARTICULARS
a. By requiring the Second Applicant to wait outside the hearing room while the First Applicant gave her evidence, the Second Applicant was denied procedural fairness.
2. The Tribunal failed to carry out its statutory duty.
PARTICULARS
a. The Migration Act 1958 s.425 requires the Tribunal to invite an applicant to appear to give evidence and present arguments.
b. By requiring the Second Applicant to wait outside the hearing while the First Applicant gave her evidence, the Tribunal denied the Second Applicant the opportunity it was obliged to give.
3. The Tribunal misapplied the law to the facts as found.
PARTICULARS
a. The Tribunal found inconsistencies in the evidence where none existed.
b.
i. The Tribunal found at [41]:
"There is little independent evidence of any commitment to the relationship by either party"
ii. There was sworn evidence from a witness and two statutory declarations.
Mr Turner’s affidavit, affirmed 6 April 2018, annexes the Tribunal decision, but does not otherwise provide any evidence in support of the application for extension of time nor for any evidence in response on the Minister’s application in the case.
Grounds and submissions previously before Judge Manousaridis
Before Judge Manousaridis, the Applicants relied on one written ground of review, as set out in [18] of his Honour’s judgment as follows:
1. The Tribunal failed to consider and act on Schedule 3 criteria and failed to consider my compelling circumstances at the time of application and at the time of the decision.
At [22] the judgment set out the submissions made by Mr Sam as follows:
[22] That leaves the submissions the [S]econd [A]pplicant made before me. That the Tribunal asked the [S]econd [A]pplicant to leave the hearing room while the [A]pplicant gave her evidence does not raise any arguable case of jurisdictional error.
The submissions made by the Mr Sam before Judge Manousaridis are the same as those set out as grounds of judicial review in the amended application in this proceeding as particulars for the ground 1 and ground 2. In relation to ground 3, whilst it may be said that it is broadly encompassed in the grounds before Judge Manousaridis, they are not expressly the same.
Submissions
The Minister’s submissions
The Minister’s solicitor puts forward, in substance, 3 reasons in support of the application in a case, namely:
(a)firstly, the doctrines of res judicata and issue estoppel apply to judicial review applications of administrative decisions: Taylor v Ansett Transport Industries Limited [1987] FCA 127; (1987) 18 FCR 342 and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; (2004) 204 ALR 722;
(b) secondly, the substratum of facts giving rise to the right to review in the proceeding before Judge Manousaridis and the proceeding before me are exactly the same; and
(c) thirdly, the issues raised in the two proceedings are substantially the same, that is, having regard to the interests of administrative justice, whether time should be extended to the Applicants to seek judicial review of the Tribunal’s decision has been determined in the negative by Judge Manousaridis, and to allow the Applicants to pursue the same course of action, raising the same issues, would be contrary to the principle of finality of litigation underpinning the doctrine of res judicata and issue estoppel.
Before me, as well as referring to Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; (1981) 147 CLR 589, the Minister’s solicitor relied on and took me to the decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; (2003) 132 FCR 222 at [37].
The Applicants’ submissions
For the Applicants, Mr Turner submitted firstly that r.16.05(2)(c) permits the Court as a whole to set aside a judgment or order after it has been entered if it is an interlocutory judgment or order, and the breadth of the Court’s power is confirmed by subparagraph (3) of r.16.05. Secondly, Mr Turner, refers to the decision of Judge Manousaridis delivered on 1 September 2017, and draws attention to the decision at [8] as to the evidence before Judge Manousaridis of why the Applicants did not file their application for judicial review in time in that proceeding.
There, Judge Manousaridis sets out Ms Chahine’s statement that she consulted a “Mr Laba”, whom his Honour considered may possibly be a reference to a Mr Laba Sarkis. Mr Sam, made statements to the similar effect, that they consulted Mr Laba about what they needed to do regarding their judicial review application.
Mr Turner submitted that Mr Laba Sarkis is a fraudster, that he is neither a migration agent nor a solicitor, and that adverse statements have been made concerning him by Judges both of this Court and of the Federal Court. Mr Turner also, separately, relied on [19] of Judge Manousaridis’ judgment (Ms Chahine said she cannot return to her country, Mr Sam said he was asked by the Tribunal to leave the room when his mother gave evidence and that the Tribunal accepted his evidence).
Mr Turner took me to 2 cases. The first, a decision of Judge Cameron of this Court in SZVGM v Minister for Immigration & Anor [2016] FCCA 1602, in which his Honour considered an applicant’s application in a case seeking to set aside a notice of discontinuance of proceedings. In the decision his Honour observed, at [5], that:
a notice of discontinuance does not prevent the discontinuing party from pursuing their claim at a later time within the applicable limitation period.
And that, in migration cases:
there is a practical advantage in re-instating a proceeding rather than starting a new one and having to seek an extension of time for the bringing of the proceeding.
His Honour identified that there was “no express power” in either the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) or the Rules of this Court to set aside a notice of discontinuance; but found, by considerations applicable in cases before the Federal Court and s.23 of the Federal Court of Australia Act 1976 (Cth), which is relevantly identical to s.15 of the FCC Act, that there was implied power.
His Honour concluded at [11], in the circumstances of that case, that:
Because there was no reason to suspect that the discontinuance represents or involved an abuse of process, the Court’s implied power to prevent such an abuse is not engaged.
Noting that there was no express power to set aside a discontinuance, he dismissed the application in a case. I note that SZVGM is, however, concerned with a different matter than the present, namely, an action by a party themselves in filing a notice of discontinuance.
The second case which Mr Turner drew my attention is a decision of Registrar Ng delivered on 13 June 2018 in AQB18 v Minister for Home Affairs & Anor [2018] FCCA 1541. This was an application in a case seeking to re-instate an originating application where the applicant had not appeared on the first court date. When the applicant did not appear on the first court date, Registrar Tesoriero dismissed her application under r.13.03C(1)(c) of the Rules.
Registrar Ng, on the application for re-instatement, considered that the applicant brought her application under r.16.05 of the Rules. In the circumstances, Registrar Ng was “not satisfied that there was reasonable excuse for the applicant’s non-attendance” and, even if he were to be so satisfied, in the Registrar’s view, the applicant did not have any “reasonably arguable prospects of success in the substantive application”. The application for re-instatement was dismissed.
In argument, Mr Turner referred to a judgment of Judge Street of this Court, in which, Mr Turner submitted, his Honour held that there was a breach of the natural justice rule where the Tribunal had asked an applicant to wait outside while a witness gave evidence. I find that that decision, which I have not been able to identify, and neither party has identified for me, is distinguishable from the present case, including for the reasons that Ms Chahine was present before the Tribunal, and Mr Sam’s evidence was, it appears, accepted. The Tribunal’s decision in the present case does not appear to give rise to any breach of natural justice, given also that the Tribunal had put the inconsistent evidence to the parties.
Legislative framework and principles
Rule 39.05 of the Federal Court Rules2011 (Cth) is in substantially the same terms as r.16.05 of the Rules in this Court.
The Federal Court has the same ancillary powers as a common law superior Court of record and does not become functus officio merely upon the making and entry of a judgment or order that determines the rights of the parties. Instead, the Court retains power, in the same suit, to make supplemental orders subsequently. Those ancillary powers flow from its authority under ss.22 and 23 of the Federal Court of Australia Act to resolve the whole of the controversy between the parties.
Sections 14, 15, 16 to 18 of the FCC Act provide this Court with authority to resolve the whole of the controversy between the parties within its jurisdiction. As Judge Cameron held in SZVGM, the Court also has implied power to correct abuse of its processes, noting that s.23 of the Federal Court of Australia Act is relevantly identical to s.15 of the FCC Act. Indeed, at [7] of his Honour’s judgment, his Honour helpfully identifies that the absence of an express power will not prevent a statutory court such as this Court from restraining an abuse of process of the Court, referring to Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214, in the context of a discontinuance, to the comments of the Full Court of the Federal Court in Chen v Monash University [2016] FCAFC 66.
The scope of the power to vary or set aside an order or judgment after entry in this Court is much more circumscribed than that provided by the Federal Court Rules, and by r.16.05(1) of the Rules of this Court before an order has been entered. This is clear from the circumstances identified in r.16.05(2).
The case law in relation to r.39.05 in the Federal Court Rules makes apparent that the exercise of the scope of power to vary or set aside an order or judgment after entry is limited to “truly exceptional circumstances”, and must be exercised with caution, mindful of the overarching principle of the finality of litigation: see Australian Securities and Investments Commission v Active Super Pty Ltd(No. 4) [2013] FCA 318 at [6], and Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (No. 2) (2012) 209 FCR 123, amongst other cases.
The discretion under both the Federal Court Rules and the Rules of this Court is not, in terms, confined, but must be exercised judicially. The Court is to have regard to all of the evidence before it, and all the arguments advanced at the time of the application.
It must be remembered that an application under r.16.05(2) is not an appeal, nor is it an alternative to the appellate procedure, and, therefore, it is not an appropriate avenue, for example, by which to contend that orders of the Court were made in excess of statutory jurisdiction: Active Super Pty Ltd (No.4) at [15]. I note that is not the present case.
Consideration
I do not consider that the interlocutory orders sought in the amended application are simply seeking to set aside an order of a procedural nature. Although the extension of time application was an interlocutory application, Judge Manousaridis’ order had the effect of finalising the litigation.
The principle of finality of litigation has a role to play, and regard must also be had to considerations of case management. The fundamental principle is that a party should be bound by a decision if they had full notice and a proper opportunity to appear and oppose the proceeding. That occurred in the present case. It is not a case where a party was absent.
I have had regard to Judge Manousaridis’ consideration (the first extension of time application), in which hearing the Applicants made submissions before his Honour, although I note that those submissions were not comprehensive.
The argument that Mr Sam was required to wait outside the hearing room while the Ms Chahine gave her evidence, and, was thereby denied procedural fairness does not give rise to procedural unfairness in circumstances where the Tribunal canvassed with the Applicants their evidence, and where it is apparent from the Tribunal’s decision, at [12], that Mr Sam gave his evidence in a generally open and straightforward manner. The Tribunal has placed some weight on his evidence.
The Tribunal reached its decision relying on significant inconsistencies in the evidence of the Ms Chahine and her sponsor. Those inconsistencies are canvassed by the Tribunal, including under headings from [23] through to [41].
I also note that the Tribunal received evidence from another witness, a Ms Estefan, whose evidence was inconsistent with the evidence given by Ms Chahine about certain matters.
I note that the Tribunal, at [14] and following, put inconsistencies in the parties’ evidence to Ms Chahine in accordance with s.359AA of the Act at the hearing as well as details of a number of allegations received by the Department of Immigration and Border Protection that the relationship was contrived. I note that the Tribunal also dealt with an allegation relating to the Mr Sam at [19].
I have had regard to the principles for an extension of time cases, and, in particular, the approach urged by Justice Mortimer in MZABP v Minister for Immigration and Border Protection & Ors [2015] FCA 1391; (2015) 242 FCR 585, particularly at [58] through to [63], and at [64] to [66], to her consideration of the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719.
Following the approach urged by Mortimer J, I am not satisfied that the Applicants have reasonable prospects, or, indeed, any prospects in the underlying case in grounds 1 and 2 of the amended application in this proceeding. I also consider that grounds 1 and 2 seek to revisit the matters that were determined by Judge Manousaridis.
In relation to ground 3, the particulars identify an allegation that the Tribunal found inconsistencies in the evidence where none existed by reference to [41] of the Tribunal’s decision. The argument appears to be that there was sworn evidence from a witness and two statutory declarations. Having regard to the detailed consideration of the Tribunal of the explanations put by Ms Chahine, her sponsor, Mr Sam, and the oral witness, I do not consider, and I do not find, that the Applicants have any reasonable prospects of success on ground 3.
Particular (b)(ii) to ground 3 of the review does not contradict the Tribunal’s finding at [41]. The Tribunal in preceding paragraphs had identified a lack of knowledge about a number of basic things in one another’s lives of Ms Chahine and her sponsor, and I consider that the conclusion reached by the Tribunal was open to it on the evidence before it, and that at a contested hearing on ground 3, the application would not succeed.
Thus, I do not find that there are any exceptional circumstances in which to allow the interlocutory order in the amended application, to set aside the orders of Judge Manousaridis, and to grant the application for extension of time. And having regard to the substantive grounds of review sought in the amended application, I am not satisfied that those grounds have any prospects of success.
As Ms Dejean for the Minister submitted before me, the Applicants had a number of courses open to them following on from Judge Manousaridis’ dismissal of their application, including an application to the Federal Court under s.39B of the Judiciary Act 1903 (Cth), or attempting to set aside the orders made by Judge Manousaridis by filing an application in the case in that proceeding. They have done neither.
Further, there is no evidence before me which would indicate any prospect of success were they to seek to set aside the orders made by Judge Manousaridis by filing an application in that proceeding, for the reasons I have already adverted to and the principles applicable by analogy with the case law relevant to r.39.05 in the Federal Court Rules.
I turn now to the question of costs. I note that in support of an application for indemnity costs payable by the solicitor personally, Ms Dejean has annexed to her affidavit, affirmed 5 July 2018, correspondence from the period 22 June 2018 to 27 June 2018. In that correspondence Ms Dejean for the Minister raised the matters she has put in submissions today, namely, that the application sought an extension of time to review, first, the Minister’s decision, as to which this Court does not have jurisdiction, and, secondly, in seeking an extension of time to seek review of the decision of the Tribunal made 18 February 2016, that that decision has already been the subject of a judicial review application dismissed by Judge Manousaridis on 1 September 2017. In her correspondence to Mr Turner, Ms Dejean foreshadowed her present application in the case, but the parties remained apart.
The Applicants’ solicitor has been aware of the Minister’s position since at least 22 June 2018, and chose to pursue an amended application rather than discontinue, and pursue the other courses of action which I have outlined above. In the circumstances, the application was hopeless. It was pursued in circumstances notwithstanding the invitation not to so pursue it.
I will order that costs be payable on an indemnity basis. I will not, in the circumstances, order that they be payable personally by the solicitor.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 4 September 2018
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