Cob16 v Minister for Immigration
[2018] FCCA 152
•29 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COB16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 152 |
| Catchwords: PRACTICE & PROCEDURE – Application in a case to set aside a notice of discontinuance – whether the power to set aside is enlivened – no power to set aside – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 |
| First Applicant: | COB16 |
| Second Applicant: | COC16 |
| Third Applicant: | COD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2449 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 22 November 2017, 5 December 2017, and 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Teoh |
| Solicitors for the Applicant: | Weighbridge Lawyers |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
ORDERS
The Application in a Case made on 23 October 2017 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2449 of 2016
| COB16 |
First Applicant
| COC16 |
Second Applicant
| COD16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 23 October 2017 that, in effect, seeks that the Notice of Discontinuance (“NOD”) filed by the applicants in this matter on 27 January 2017, and orders made by the Court on 1 February 2017, be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
The background to the AIC is as follows.
An application was made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 9 September 2016, which sought an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 27 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and an affidavit of the first applicant, made on 23 October 2017 in support of the AIC.
Background
There were three applicants in the application to extend time pursuant to s.477(2) of the Act. The first and second applicants are citizens of Fiji (CB 14 and CB 29. The third applicant (in the application to extend time), who was born in Australia, is their child and also a citizen of Fiji (CB 45). The first and second applicants arrived in Australia in December 1999 and January 2000 respectively, as visitors. They applied for protection visas in April 2000. These were refused by the delegate. The then Refugee Review Tribunal affirmed the delegate’s decision in May 2001 (see [2] at CB 120).
The applicants (including the third applicant in the application to extend time), lodged a second application for protection visas, which are relevant to the current proceedings, which was received by the Minister’s department on 10 April 2014 (CB 1 to CB 59). This application was valid on the basis of SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235.
The first applicant claimed that she left Fiji because as a Fijian Indian, her family were being “persecuted by the native Fijian community” and because of “political unrest” (CB 19). She also claimed that a policeman, who was a “native Fijian”, had occupied land that she owned in Fiji, and had threatened to kill her family (CB 20). The second applicant, although he made his protection visa application on the basis that he wanted to submit his own claims for protection, simply claimed that he “left Fiji as [he] feared for [his] life” (CB 34).
The delegate refused to grant the applicants protection visas on 17 December 2014 (CB 76 to CB 99).
The applicants applied for review to the Tribunal on 6 January 2015 (CB 100 to CB 106). The applicants were invited to attend a hearing before the Tribunal on 23 June 2016 by letter dated 5 May 2016 (CB 109 to CB 110). This was later postponed to 27 June 2016 at the applicants’ request (see CB 114 to CB 117). It is apparent from the Tribunal’s decision record that the first and second applicants appeared at the hearing before the Tribunal and spoke also on behalf of their child ([8] at CB 120).
The Tribunal affirmed the delegate’s decision on 27 June 2016 (CB 119 to CB 123).
As noted above, the applicants made an application for an extension of time to the Court on 9 September 2016. On 29 November 2016 the Court made orders by consent, which, amongst other things, provided the applicants with an opportunity to file any amended [proposed substantive] application, and any evidence by way of affidavit, and set down the hearing of the extension of time application on a date to be administratively advised to the parties.
On 27 January 2017, the applicants’ then lawyer filed a NOD. Subsequently, the parties requested that orders be made by consent in chambers.
On 1 February 2017, the Court made the following orders:
“By consent, the Court orders that:
1. The proceedings be discontinued.
2. The first and second applicants pay the first respondent’s costs set in the amount of $1,799.”
As noted above, the applicants have now filed an AIC which, in effect, seeks to have the NOD and those orders set aside. The AIC was made only by the first and second applicants.
The Application in a Case
The AIC seeks the following orders:
“1. The Orders on 27 January 2017 made pursuant to an agreement between the parties be set aside pursuant to the Rule 16.05(2)(c) of the Rules.
2. Directions be made for the conduct of the final hearing of the application.
3. The matter be listed for final hearing.
4. The First respondent pay the appellant’s costs.
5. Any further Order that the Court deems fit.”
The AIC seeks that the orders made by consent on 27 January 2017 be set aside pursuant to “Rule 16.05(2)(c)” of the FCC Rules. In context, this should be a reference to the orders made in chambers on 1 February 2017. There is a question as to whether the orders made on 1 February 2017 were interlocutory. While the applicants were ultimately represented by counsel before the Court (see further below), no submissions were made by the applicants’, or the Minister’s, solicitor in relation to this point.
In my view, the orders made on 1 February 2017 were not interlocutory as they finally determined the rights of the parties. Thus, r.16.05(2)(c) of the FCC Rules is not available to the applicants. This may be the reason that counsel (who only came into these proceedings at a late stage) did not pursue, or press it.
I note that r.16.05(2)(b) of the FCC Rules provides that a Court order may be varied if it is obtained by fraud. However, this rule was not invoked by the applicants. Nor was fraud otherwise pressed as an issue in this matter.
There is an argument to say that order one of the orders made by the Court on 1 February 2017 was not necessary given that a NOD had been filed. In any event, this order, of itself, does not affect the efficacy of the NOD. The order was simply a consequence of the filing of the NOD, and was made by the consent of both parties.
In these circumstances, it is appropriate to focus on the issue of the NOD. This was the way that the applicants (through their counsel), sought to press the AIC.
Therefore, the first question is whether the Court has the power to set aside a NOD. The AIC was initially set down for hearing on 22 November 2017. At that time, a solicitor appeared on behalf of the Minister. There was no appearance by, or on behalf of, the applicants. The Minister had prepared written submissions in this matter (filed on the day of the hearing of the AIC). The Court adjourned the hearing until 5 December 2017 to provide the applicants with an opportunity to attend, and to ensure that they had received reasonable and adequate notice of the hearing of the AIC.
On 5 December 2017 a solicitor appeared on behalf of the applicants. He stated that he had only recently received instructions in this matter and sought a further adjournment to enable him to obtain proper instructions, and to give the matter adequate consideration. The Court adjourned the hearing of the AIC until 15 December 2017.
I noted with the applicants’ solicitor at the hearing of the AIC on 5 December 2017, that, as I had told the Minister’s representative on the previous occasion, the written submissions provided by the Minister did not appear to reflect current authority on the question of the Court’s power to set aside a NOD. It did not appear that on the second occasion of the hearing of the AIC, the Minister had taken any steps to acquaint himself with this more recent authority.
There is no express power in the FCC Rules or the Federal Court Rules 2011 (Cth) to set aside a NOD. However, as the Minister submits, the Court has an inherent power to set aside a NOD in certain circumstances.
In this regard see SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (“SZFOZ”) per Ryan J, there citing Castanho v Brown & Root (UK) Ltd [1981] AC 557, where His Honour stated (at [15] and [17] - [20]):
“[15] The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion. As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned any injustice to the appellant. However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected…
…
[17] There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 …
[18] Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 …
[19] In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court’s inherent power to prevent injustice…
[20] In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.”
In his written submissions the Minister relies on SZSML v Minister for Immigration& Anor [2013] FCCA 1253 (“SZSML”) and MZZIO v Minister for Immigration & Anor [2014] FCCA 618 (“MZZIO”). The Minister submitted as follows. The Court has an inherent power to set aside a NOD in “exceptional circumstances in order to prevent injustice or abuse of its process” (SZSML at [18] per Judge Driver and see [5] of the Minister’s written submissions). The Minister also referred to a set of questions to which he says the Court should consider when deciding whether such “exceptional circumstances” exist to justify the setting aside of a NOD, as set out by Judge Whelan in MZZIO at [14] as follows (and see [5] of the Minister’s written submissions):
“The questions that a Court needs to consider are these:
- Did the applicant knowingly and voluntarily file the notice of discontinuance?
- Was the filing of the notice of discontinuance procured by fraud or duress?
- Was it filed pursuant to a void, or voidable, agreement?
- Did the filing of the notice of discontinuance otherwise involve an abusive process?
- Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
- If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?”
In relying on MZZIO, the Minister submitted that in relation to questions 1 to 4, as set out in that case, the Court should have regard to the relevant circumstances surrounding the filing of the NOD. That is, the applicants were legally represented at the time, and voluntarily instructed their lawyer to file the NOD.
Further, the Minister submitted that there is nothing on the evidence to suggest that any “fraud, duress, abuse of process or a void or voidable agreement” relating to the filing of the NOD. Any mistaken understanding of the law, that the applicants now say existed at that time, is therefore not sufficient to justify the setting aside of the NOD (see [6] – [7] of the Minister’s written submissions the reference there to BZAGD v Minister for Immigration [2015] FCCA 3471 (“BZAGD”)).
It is not clear why the Minister relied on SZSML and MZZIO in light of more recent Full Federal Court authority in Chenv Monash University [2016] FCAFC 66 (“Chen”).
To understand both SZSML and possibly MZZIO, it is necessary to note the following. In Christodoulou v Disney Enterprises Inc and Others [2006] FCAFC 183; (2006) 156 FCR 369 (“Christodoulou”), the context of the scope of such an “inherent power” to set aside a NOD was considered by the Court. In that case, the Court referred to certain authority that suggested the power to set aside a NOD “extends beyond cases of fraud or mistake” to “whenever the interests of justice dictate that that is the appropriate course” (Christodoulou at [27]). However, the Court did not need to decide the question (Christodoulou at [28]).
With respect, there is the possibility of viewing the Court’s statement in Christodoulou as being “obiter dicta”. In this light, the view that I have taken (see for example, CHD16v Minister for Immigration & Anor [2017] FCCA 1679) was that the binding construction of this Court’s relevant inherent power is as set out in SZFOZ which post-dated Christodoulou.
In my respectful view, the matter is beyond doubt when regard is had to Chen. In that case, the Full Court concluded that there was an implied power to “reinstate a discontinued appeal in order to prevent an abuse of process”, but that it was not “possessed of an implied or express power simply to reinstate a discontinued appeal in ‘the interests of justice’”, as suggested in Christodoulou (Chen at
[41] – [42] and see also [47]). The Court in Chen also noted the Court in Christodoulou “inexactly” referred to the jurisdiction as an “inherent” one (Chen at [43]).
Further, the Court in Chen relevantly stated (at [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.]
Even further, the Court in Chen also stated (at [48]):
“We also consider that the power to reinstate an appeal is discretionary in nature so that, when enlivened, the prospects of success of the proposed appeal may also be taken into account in its final exercise, as held in Christodoulou.”
This approach has been followed in this Court in BLR15 v Minister for Immigration & Anor [2016] FCCA 1260 and SZUXV v Minister for Immigration & Anor(No.2) [2016] FCCA 1556.
In this light, is difficult to see why the Minister’s submissions invited this Court to apply what are said to be the relevant questions in the consideration of setting aside a NOD in MZZIO (at [14]) as set out at [5] of the Minister’s written submissions as follows (and see [26] above):
“The weight of authority supports the proposition that the Court has an inherent power to set aside a notice of discontinuance in ‘exceptional circumstances to prevent injustice or abuse of its process.’ In MZZIO v Minister for Immigration [2014] FCCA 618 at [14] (MZZIO), Judge Whelan set out the following questions to which a Court might turn its mind when considering whether there are exceptional circumstances that might justify setting aside a regularly filed notice of discontinuance, namely…”
To the extent that those questions go beyond what was said in SZFOZ and Chen, then I respectfully do not see that it is appropriate to apply them in the Court’s current consideration.
In short, while there may have been some conflict in earlier relevant authorities, the relevant consideration as set out in SZFOZ, and explained in Chen, must be followed.
That is, the power to reinstate an application that has been discontinued and where a NOD to effect that discontinuance also has been filed, is a limited power. As was in my respectful view, made clear in Chen, that power may only be exercised to prevent an abuse of the processes of the Court, or to protect the integrity of those processes (Chen
at [41] – [42]).
Specifically, and in light of the Minister’s written submissions, I note that this Court does not have an express or implied power to reinstate a discontinued proceeding generally “in the interests of justice” (see Chen at [42]). To the extent that the “questions” posed in MZZIO, and addressed by the Minister in his submissions provide otherwise, they cannot be respectfully accepted as relevant to the current consideration.
Therefore, the issue in the current case is whether there is anything in the evidence before the Court to indicate that an abuse of process was involved in the discontinuation of the substantive proceedings (being the application to extend time), or whether the discontinuance was procured by fraud or duress.
As set out above, when the hearing of the AIC resumed on 15 December 2017, the applicants were represented by counsel. It appeared the applicants had come prepared to argue the merits of the proposed application to the Court (that is, the application to extend time). This may have been because, as set out above, the Minister’s written submissions made reference to the questions in MZZIO, and in particular, the last two questions (see [26] above).
I again advised the parties of the view that I had expressed on the earlier occasions, regarding the current authorities relevant to the question to be decided by the Court. The Minister’s solicitor orally agreed that Chen and SZFOZ should “guide”, if not plainly direct, this Court’s current consideration. I granted a short adjournment so that the applicants’ representative could consider the situation.
On resumption of the hearing, the applicants’ counsel sought leave to read the affidavit of the first applicant made on 23 October 2017. Leave was granted. In essence, the argument put on behalf of the applicants was that they relied on Chen at [46] (see above at [33]).
The applicants’ submission was that while on the evidence of the first applicant, the filing of the NOD was a “deliberate” act, it could not be said to be an “informed” act, as the first applicant had given evidence that she did not “understand the case” (see [4] of the first applicant’s affidavit made on 23 October 2017). Further, that the first applicant had “limited English language skills” and “limited knowledge of [the] legal system” (see [8] – [9] of the first applicant’s affidavit of 23 October 2017).
As noted above, the current issue before the Court is whether there is anything in the evidence before the Court, to show that an abuse of process was involved in the discontinuation of the substantive proceedings (that is, the application to extend time), or whether the discontinuance was procured by fraud or duress.
The relevant evidence before the Court regarding the circumstances of the filing of the NOD is contained in the affidavit of the first applicant made on 23 October 2017. The first applicant’s evidence is that the proceedings were discontinued on instruction from the applicants to their then lawyers (see [6] of the first applicant’s affidavit of 23 October 2017).
On the first applicant’s evidence, the applicants were legally represented and while the first applicant’s English is limited, she had the assistance of her “older son who is [an] Australian resident”, when instructing her then lawyers ([7] of the first applicant’s affidavit of 23 October 2017).
There is nothing in the applicants’ evidence to suggest that the discontinuance was procured by fraud or duress or otherwise involved an abuse of process.
On the first applicant’s evidence, the applicants made a decision based on advice from friends, and their lack of funds, to discontinue proceedings in this Court, and to seek Ministerial intervention ([5] of the first applicant’s affidavit of 23 October 2017). No abuse of process arises here.
The first applicant also gives evidence that she has “limited knowledge” of the legal system and that she did not understand the “full implications” of discontinuing the proceedings ([9] of the first applicant’s affidavit of 23 October 2017).
It is relevant to note that the applicants were legally represented at the time of the filing of the NOD. They therefore had available to them, with the assistance of the “older son”, access to legal advice, which could have explained the implications of the filing of the NOD.
In any event, the applicants have not explained what “full implications” could have been unknown to them. Even if the applicants had some mistaken belief that they could discontinue proceedings to pursue another course, and then return to Court to reactivate their application, any discontinuation made in this circumstance still does not rise to an abuse of process or fraud.
On the evidence, the discontinuation of the proceedings was a “deliberate and informed act” (see Chen at [46]). The NOD was signed by the applicants’ lawyer on their behalf, acting on their express and specific instructions (and see [6] of the first applicant’s affidavit of 23 October 2017).
Before the Court, the Minister referred to BZAGD at [18] – [23] (and see [6] of the Minister’s written submissions). The Minister submitted that in that case, the Court found that where a NOD is filed due to a mistaken understanding of the law, the Court’s power to set aside a NOD is not enlivened.
It is important to note that the first applicant’s evidence, when fairly read in the temporal sequence presented, does not support the applicants’ submissions before the Court. The first applicant gave evidence that she retained lawyers in the substantive proceedings ([3] of the first applicant’s affidavit of 23 October 2017). She also gave evidence that she did not understand the case, but at that time deferred to her lawyers. She also gave evidence that she had difficulty in being able to pay legal costs ([4] of the first applicant’s affidavit of 23 October 2017).
However, as is made clear at [5] of the first applicant’s affidavit of 23 October 2017, “later” she obtained advice from “friends” that they should seek Ministerial intervention. Essentially, her evidence was that she had spoken to other people and the decision was made, in light of their lack of funds, that the current proceedings be discontinued. It is clear on the first applicant’s evidence (see, in particular, [6] of her affidavit of 23 October 2017), that the instruction to their lawyers to withdraw the case was based on advice she had received to pursue Ministerial intervention as well as their lack of funds.
In the circumstances, the applicants did discontinue these proceedings having given consideration to advice they received, albeit from laypersons, but in circumstances where they were legally represented and the lawyers followed their instructions.
Conclusion
The circumstances of this case do not come within any of the rare occasions when the Court’s power to set aside a NOD is enlivened. In the absence of any such power, the AIC should be dismissed. I will make the appropriate order.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 January 2018
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