CTY20 v Minister for Immigration
[2020] FCCA 1900
•15 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTY20 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1900 |
| Catchwords: MIGRATION – visa application – review of claim – abuse of process – new evidence |
| Legislation: Migration Act 1958 (Cth), ss.5J(1)(a), 36(2), 473CB, 473DC(2), 473DD(b), 473FB(5), 477(1), 486D |
| Cases cited: AGX16 v Minister for Immigration and Anor [2016] FCCA 2445 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1695 |
| First Applicant: | CTY20 |
| Second Applicant: | CUB20 |
| Third Applicant: | CUC20 |
| Fourth Applicant: | CUD20 |
| Fifth Applicant: | CTZ20 |
| Sixth Applicant: | CUA20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 330 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 April 2020 |
| Date of Last Submission: | 9 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 15 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moxon |
| Solicitors for the Applicant: | Sydney West Legal and Migration |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 16 June, 2020 be dismissed.
The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG330 of 2020
| CTY20 |
First Applicant
| CUB20 |
Second Applicant
| CUC20 |
Third Applicant
| CUD20 |
Fourth Applicant
| CTZ20 |
Fifth Applicant
| CUA20 |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek an extension of time to apply for judicial review of a decision of the second respondent made on 20 April, 2018 which affirmed a decision of a delegate of the first respondent to refuse the grant of a Safe Haven Enterprise visa. Their application was originally filed on 9 October, 2019. On 26 March, 2020 they filed an amended application whereby they seek to abandon all of the grounds in the application as originally filed and replace it with a single different ground of review.
The applicants previously brought proceedings seeking relief of the same nature as sought in the present proceedings on 8 May, 2018 (BRG441/2018). However, they discontinued those proceedings on 24 December, 2018 less than a month before they were due to be heard on 15 January, 2019. The applicants were ordered to pay the first respondent’s costs.
The first respondent opposes the present application. The second respondent enters a submitting appearance.
The applicants accept that they require the Court’s leave to rely upon the amended application filed on 26 March, 2020. I will address the question of leave to amend as part of the consideration of the application for an extension of time because the question of the proposed merits of their fresh ground of review is a factor relevant to both applications.
Both parties have filed written submissions. The applicants have filed theirs outside of the time limited for that purpose by a directions order made on 3 December, 2020. I have nonetheless considered those submissions.
The present application was made 502 days outside the 35-day time limit prescribed by s.477(1) of the Migration Act 1958 (Cth). However, the Court may extend time for the making of an application if the applicant makes an application for an extension of time in writing and the Court considers that it is necessary in the interests of justice to extend time.
The discretion to extend time is at large and matters to which the Court may have regard in considering whether to extend time under s.477 of the Act are unconfined, although are usually said to include:
a)the length of the delay;
b)whether there is a reasonable and adequate explanation for the delay;
c)whether the substantive application is sufficiently arguable to support the application for an extension of time;
d)whether there is any prejudice to the respondents if the extension is granted; and
e)the prejudice to the applicant if the extension is not granted.
The delay in this case is lengthy. The explanation is for the delay is, on the applicants’ own submissions, unsatisfactory. As I have set out above, the applicants had initially commenced judicial review proceedings in 2018. They discontinued those proceedings on the basis of legal advice. Instead they pursued an application for ministerial intervention which was ultimately unsuccessful. They then obtained legal advice, the product of which is the ground of review they wish to pursue in their amended application presently before the Court.
The evidence before me demonstrates that applicants made a conscious decision, informed by legal advice, to pursue an alternative avenue of relief. They only reconsidered their decision after their ministerial intervention request was unsuccessful. I am unable to assess how quickly the applicants moved to engage further legal representation when the ministerial intervention request failed. In any event, the applicants concede “that the applicants ‘made a conscious decision, informed by legal advice, to pursue an alternative avenue of relief’. Overall, while there is some explanation for the delay, that explanation is not satisfactory.”
I accept that the only prejudice to the first respondent sounds in costs. No other prejudice was identified by the first respondent.
I turn to consider the merits of the proposed application in its proposed amended form. Before doing so, it is necessary to set out the factual background to the applicants’ visa applications.
Background
For the purposes of the hearing before me, the first respondent has filed written submissions which extensively set out the background to the present application. I have considered that material carefully and I am satisfied that it is an accurate recitation of the factual matters leading up to this application including the Tribunal’s decision. The applicants did not take issue with the background matters set out in the first respondent’s written submissions. That which appears in this part of these reasons for judgment is drawn from the first respondent’s written submissions.
On 24 December, 2012 the first applicant, his wife, their two minor daughters and their two minor nieces arrived in Australia as unlawful maritime arrivals for the purposes of the Act. Each of them is an applicant in these proceedings.
On 9 March, 2016 the applicants were invited to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven (Enterprise) visa. On 27 May, 2016 they applied for a Safe Haven (Enterprise) visa. Only the first and second applicants made claims in their own right. Their claims were set out in the statements of claims of the first and second applicants that were provided to the Department on 5 July, 2019 and 14 July, 2019.
In summary, they claimed:
a)the applicant’s brother was forced to join the Liberation Tigers of Tamil Elam and was killed by the Sri Lankan Army;
b)the applicant drove a vehicle delivering goods for the LTTE for approximately five years between 1990 and 1995. He received basic weapons training in 1993 and was shot in 1994;
c)the applicant was arrested and tortured by the authorities. Between 1998 and 2000, he was held in Kalutara Prison on suspicion of being an LTTE member;
d)the second applicant’s brother and his wife were forcibly recruited by the LTTE and were killed in 2007. In 2010, the first and second applicants arranged to take custody of their two children (the fifth and sixth applicants);
e)in around June, 2012 the Sri Lankan authorities attempted to remove the fifth and sixth applicants from the first and second applicants’ care on the grounds that they were the children of known former LTTE members. They refused to give them up;
f)approximately ten days later, two army officers carrying guns came to the house. The officers called the first applicant by name and took him into a black van. His family were screaming which alerted neighbours who then surrounded the van. The neighbours prevented the van from moving. The neighbours told the officers that they would prevent the van from leaving unless they released the first applicant which they did;
g)approximately one month later, unknown people abducted the third applicant who was on her way to tuition and sexually assaulted her; and
h)following that, unknown men came to the family home looking for the first applicant and burnt the house down.
On 5 July, 2017 the first respondent’s delegate requested that the first and second applicants attend an interview on 19 July, 2017. Following the interview, on 17 August, 2017 the applicants’ representative wrote to the delegate advising that all applicants were raising protection claims. The applicants’ representative provided written submissions, statutory declarations from the second applicant and the third applicant, reports from the Queensland Program of Assistance to Survivors of Torture and Trauma in respect of the minor-aged applicants, and health records of the applicant.
On 29 September, 2017 the delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia had protection obligations
On 4 October, 2017 the applications were referred to the second respondent for review under Part 7AA of the Act. On 18 October, 2017 the applicants’ representative provided submissions to the second respondent (which annexed a copy of the submissions provided to the delegate). On 30 November, 2017 the applicants’ representative provided a decision of the Upper Tribunal (UK) containing new country information.
In its reasons for decision, the second respondent decided that it had regard to the material referred to it by the Secretary of the first respondent’s Department pursuant to s.473CB of the Act. The second respondent confirmed that one of the submissions provided by the applicants had previously been submitted to the Department and was therefore not new information.
The second respondent also had regard to the argument against the delegate’s findings included in the second submission. It noted that a range of country information was included in the second submission, some of which was referred to in the earlier departmental submission. The second respondent noted that there were two other documents not referred to in the earlier submission and that they also comprised new information.
The second respondent noted that the new information in the second submissions was from publically available documents that were published before the date of the delegate’s decision and it was not satisfied that the information could not have been provided to the delegate prior to the date of the decision. The second respondent observed that the character of the information was very similar to that of the country information in the first departmental submission and was not satisfied that the new information was not previously known and may have affected considerations of the applicants’ claims. The second respondent found that the new information was not personal information for the purposes of s.473DD(b)(ii) of the Act and that, as neither limb of s.473DD(b) was satisfied, it was prevented from considering it.
The second respondent confirmed that the UK Upper Tribunal decision provided by the applicants was new information that was not before the delegate. It noted that, contrary to the Practice Direction for Applicants, Representatives and Authorised Recipients, no explanation had been provided as to why the decision was relevant. The second respondent confirmed that a copy of the Practice Direction had been sent to the applicant, and that he was represented by a solicitor and migration agent. The second respondent expected that a solicitor and migration agent would be familiar with the Practice Direction. While the second respondent accepted that there were some superficial similarities between the circumstances of applicant in Australia and the applicant in the UK decision, it was not satisfied that the minor similarities outweighed the considerable differences in their relevant circumstances. Pursuant to ss.473DC(2) and 473FB(5) of the Act, the second respondent decided not to accept the document.
The second respondent had regard to the reports of Queensland Program of Assistance to Survivors of Torture and Trauma, which indicated that:
a)the second applicant suffered from anxiety, depression and PTSD like symptoms, was psychologically vulnerable and may not be able to provide accurate answers to questions or openly discuss her past;
b)the third, fourth, fifth and sixth applicants may be psychologically vulnerable, suffer from symptoms of PTSD and/or suffer from symptoms that were indicative of depression; and
c)the first applicant had an alcohol dependence and suffered from PTSD.
Although the second respondent accepted that the applicants may suffer from such vulnerabilities and that some of the inconsistencies in the applicants’ accounts were partly attributable to various mental health conditions, it concluded that the applicants had embellished and exaggerated aspects of their claims for the purpose of enhancing their claims for protection in Australia.
The second respondent accepted that the applicant was a supporter of the LTTE between 1990 and 1995 and that during that period he worked as a driver, conducted various transportation tasks, and received basic weapons training. The second respondent was not satisfied that he was shot, though it accepted that he was injured in 1994 and stopped working for the organisation in 1995.
The second respondent was prepared to accept that the applicant had been detained between 1998 and October 2000. It noted that there was considerable country information about the mistreatment of suspected LTTE members in Sri Lanka during the war. It accepted that the applicant was mistreated during his detention.
The second respondent also accepted that the second applicant’s younger brother, the brother’s wife, and their child, were killed during the final phase of the war and that the brother and his wife had some LTTE involvement.
The second respondent accepted that the applicant’s younger brother disappeared in 2008 but it was not satisfied that his disappearance was related to the LTTE. The second respondent was of the view that this claim had been invented to enhance the applicant’s claim for protection.
The second respondent summarised the “key elements” of the applicant’s protection claims as comprising four principal elements, namely, the government’s attempt to obtain custody of the fifth and sixth applicant, the attempted kidnapping of the applicant and his subsequent period of hiding, the kidnapping and sexual assault of the third applicant, and the ongoing harassment of the family unit by the Sri Lankan authorities which culminated in the destruction of the family home through arson.
The second respondent was not satisfied that the Sri Lankan security forces attempted to obtain custody of the fifth and sixth applicants. It did not accept that, had they intended to secure custody of the girls, they would have been dissuaded by the first applicant’s verbal refusal. The second respondent was unconvinced that this event occurred and concluded that it had been fabricated to strengthen the applicants’ claims of protection in Australia.
The second respondent was also not satisfied that, had members of the Sri Lankan security forces intended to abduct the applicant, they would have been able to be prevented by persons from the neighbourhood. The second respondent noted that ‘white van abductions’ were a credible feature of life in Sri Lanka at that time, but was unpersuaded by the circumstances described by the applicants. The second respondent was also not satisfied that the applicant went into hiding at any time.
The second respondent was not satisfied that the family home was burned down as the result of deliberate arson by State actors. While the second respondent was willing to accept that their house had burned down at some time, it did not accept that state actors were responsible.
The second respondent also did not accept that the family suffered a series of harassing and threatening visits from security officials.
The second respondent accepted that on or around 30 June, 2012 the third applicant was abducted and sexually assaulted on her way to school, however, it was not persuaded that the perpetrator was working for the government.
The second respondent accepted that sometime after the abduction and assault of the third applicant, the second, third, fourth, fifth and sixth applicants departed Jaffna, for Colombo, where they spent approximately one month. It accepted that they went to Puttalum from Colombo and after meeting up with applicant, departed Sri Lanka on a boat bound for Australia.
The second respondent accepted that Sri Lankan police officers visited the second applicant’s sisters in order to determine the whereabouts of the applicants, but concluded that the most likely reason for the visit was to make further enquiries about the sexual assault of the third applicant in 2012.
The second respondent had regard to country information in relation to the treatment of women in Sri Lanka but found that there was no credible evidence to suggest that any of the difficulties faced by women in Sri Lanka were the result of discriminatory policy or were endorsed in any way by the State. It found that if the applicants were to return to Sri Lanka, they would continue to live as a single household.
While the second respondent accepted that the third applicant was abducted and sexually assaulted, it was not satisfied that she would face a real chance of similar harm if returned to Sri Lanka. Having regard to country information, it was not satisfied that any societal discrimination suffered by the third applicant as a result of her sexual assault would amount to serious harm.
The second respondent accepted that the applicant’s brother was an LTTE member and was killed in 1992; that the applicant was a member of the LTTE between 1990 and 1995; that the applicant was gaoled between 1998 and 2000 for his LTTE activities; and, that the second applicant’s brother and his wife were members of the LTTE at the time of their death in 2009. However, having regard to country information, the second respondent was not satisfied that the applicants would face a real chance of harm because of their involvement with the LTTE or by reason of their Tamil ethnicity.
The second respondent was also not satisfied that any psychological re-experiencing of their claimed past traumas in the event the applicants returned to Sri Lanka would amount to serious harm.
The second respondent accepted that the applicants departed Sri Lanka illegally and that, if returned to Sri Lanka, they would likely face charges arising from breaches of the Immigrants and Emigrants Act. However, having regard to country information, it was not satisfied that any questioning, brief detention or the imposition of a fine amounted to serious harm, or that it involved discriminatory conduct for any of the reasons specified in s.5J(1)(a) of the Act.
The second respondent was not satisfied that the applicants would face a real chance of persecution arising from their status as failed asylum seekers who departed illegally or any combination of their claims if returned to Sri Lanka. The second respondent therefore found that the applicants did not meet s.36(2)(a).
The second respondent was not satisfied that psychological re-experiencing of past trauma, societal discrimination inflicted upon the third applicant as a victim of sexual assault, or being charged for breaching immigration laws would amount to significant harm for the purposes of s.36(2)(aa) of the Act.
Having regard to its anterior factual findings, the second respondent also found that there was no real risk of significant harm arising from their family and personal links to the LTTE, their past experiences in Sri Lanka, their status as failed asylum seekers, their Tamil ethnicity, or gender. The second respondent found that the applicants did not meet s.36(2)(aa) of the Act.
On 20 April, 2018 the second respondent affirmed the decision of the delegate not to grant the applicants the visa.
Proposed ground of review
The ground of review that the applicants wish to pursue is in the following terms:
The second respondent failed to consider a claim which arose squarely on the material before it, namely that the first applicant would be subjected to serious harm or alternatively significant harm as a result of psychological re-experiencing of treatment while detained by the Sri Lankan authorities.
Particulars
a. The second respondent accepted that the first applicant was detained between 1998 and October 2000 and that he was mistreated during his detention.
b. The second respondent accepted that the third to sixth applicants would be likely to undergo psychological re-experiencing.
c. The second respondent accepted that all of the applicants, including the first applicant, were vulnerable.
d. The second respondent accepted that the first applicant was suffering from PTSD like symptoms in 2015.
e. The second respondent did not consider whether, in light of the first applicant’s personal circumstances, being his detention and mistreatment as well as previous history of PTSD, psychological re-experiencing on the part of the first applicant amounted to serious or significant harm.
The applicants concede that it was never a part of the first applicant’s claims in his visa application, or before the second respondent, that his detention and mistreatment as well as previous history of PTSD, would or might result in “psychological re-experiencing” on his part such that tit would amount to amount to serious or significant harm for the purposes of the relevant visa criterion. There is no dispute that the second respondent made no reference to such a claim by the first respondent at all. There is also no dispute that, as a matter of principle, the second respondent’s duty to review extends to claims which, even if not expressly articulated by an applicant nonetheless arise clearly from the material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60].
There is no doubt that the applicants, other than the first and second applicants, advanced such a case before the second respondent. It was dealt with by the second respondent and its findings about that claim are not challenged. As to those claims, the second respondent reached the following conclusions:
Psychological re-experiencing
69. QPASTT reports submitted to the Department indicate that if returned to Sri Lanka, applicants 3 - 6 may suffer from a 'high risk of psychological 're-experiencing' of their past traumas'. The effects of such a re-experiencing are not outlined in the QPASTT reports, but a plain reading of this phraseology would suggest that they might be expected to experience feelings of fear, loss and other psychological factors from their earlier life in Sri Lanka such as flashbacks, should they be returned.
70. Whilst these issues may be presumed to be difficult for each of the applicants affected, and the wider family group, on the evidence before me, I am not satisfied that any psychological re-experiencing would amount to serious harm.
Although the first applicant did not advance a similar claim, he now argues that the prospect of him undergoing re-experiencing ought to have been appreciated by the second respondent and considered by it. He argues that given that:
(a) the IAA accepted (in effect) that re-experiencing was a psychological condition or occurrence that would arise where a person had previously experienced physical or psychological trauma: Decision [69];
(b) it follows that if there was material before the IAA which indicated the first applicant had previously suffered physical or psychological trauma as a result of his time in Sri Lanka, the IAA should have considered whether first applicant might re-experience that trauma if returned to Sri Lanka;
(c) there was such material before the IAA. The IAA expressly accepted that all of the applicants were ‘vulnerable’ (Decision [19]-[20]);
(d) with respect to the first applicant, the IAA accepted that he had been detained by the Sri Lankan authorities in 1998 by reason of his suspected connection to the Tamil Tigers (Decision [29]-[30]); and
(e) while not making specific findings about what happened to the first applicant in detention, the IAA accepted that he had been mistreated given the ‘considerable country information about the mistreatment of suspected LTTE members in Sri Lanka during the war’ (Decision [30]).
However, I cannot accept this submission.
First, the second respondent did not accept, in effect or otherwise, that re-experiencing was a psychological condition or occurrence that would arise where a person had previously experienced physical or psychological trauma. Its finding on this matter was set out in paragraph 69 of its reasons that I have extracted above. At best, in [69] of its reasons, the second respondent found “applicants 3 - 6 may suffer from a 'high risk of psychological ‘re-experiencing' of their past traumas’.”. That was a finding specific to “applicants 3 – 6” and it was not a finding that the described condition would arise but rather that it may arise. The former indicates a probability or certainty and the latter a possibility.
Second, it does not follow from the finding in [69] of the tribunal’s reasons, as framed by the applicants’ arguments or as it appears in the decision record, that if there was material before the second respondent which indicated the first applicant had previously suffered physical or psychological trauma, the second respondent should have considered whether the first applicant might re-experience that trauma if returned to Sri Lanka. That is because the finding in [69] was specifically about the applicants identified in that paragraph. There was no attempt to put the same type of specific evidence that existed in respect of those applicants before the second respondent in respect of the first applicant. In the absence of such evidence, and given the way in which the applicants presented their claims, a claim by the first respondent based upon “re-experiencing” was not squarely open on the material.
As the first respondent submits, the evidence concerning the first applicant’s mental health was very different to that provided about the third, fourth, fifth and sixth applicants. That evidence, which took the form of a discharge summary from a hospital some three years prior to the second respondent’s decision, said nothing about the risks that first respondent may suffer “psychological re-experiencing” upon return to Sri Lanka or at all. The second respondent engaged with the different nature of the evidence in respect of the first applicant compared with the evidence concerning the third, fourth, fifth and sixth applicants. That engagement is apparent from [17] of the second respondent’s reasons for decision:
Unlike the QPASTT reports, the Discharge Summary does not provide any firm conclusions about the state of the applicant, or his mental condition, or how these factors might impact on the applicant at interview. The document is not a ‘case history’ of the applicant; rather it is a record of treatment he received during the applicant’s stay in hospital in 2015. I note that in other evidence applicant 2 has advised the Department that applicant 1 has ceased the consumption of alcohol since his hospitalisation.
Further, I accept the first respondent’s submissions as follows:
51. The applicant did not attempt to use the discharge summary as the basis of a “psychological re-experiencing” protection claim. The document was instead called in aid of very different purposes, namely:
51.1 To explain deficiencies in the applicant’s evidence as given in the protection visa process (CB 327, [17]-[18]); and
51.2 To explain why the applicant was at a greater risk of being detained and interrogated by reason of the fact that his PTSD and alcohol-induced poor memory means that “he is highly likely to provide inconsistent information to the authorities raising their suspicion further that he is hiding information. In this context [the applicant] faces more than a remote chance of being arbitrarily detained, torture, and treated inhumanly” (CB 355, [170]).
Third, whilst in [19] – [20] the second respondent recorded its acceptance that the applicants were “vulnerable”, it also went on to observe that it was not satisfied that the applicants “have been entirely truthful. While I accept that some of the inconsistencies are partly attributable to various mental health conditions as described in the QPASTT reports, I conclude that the applicants have embellished and exaggerated aspects of their claims for the purpose of enhancing their claims protection Australia.”
I cannot accept the applicant’s argument that the findings made by the second respondent about the first applicant should have led the second respondent to consider whether he would re-experience his time in detention and whether that would amount to serious or significant harm. Whilst I accept that the second respondent had evidence before it of a psychological condition enlivened by suffering trauma, that evidence only established that applicants 3 – 6 suffered from that condition. It was not for the second respondent to embark upon a medical or psychological diagnosis of the first applicant in the absence of any medical or psychological evidence relating to him about that matter.
The first applicant argues that all the second respondent “had to do was connect two concepts that were present in the material before it”. However, in my view, given that the applicants were legally represented throughout the visa application process and the review process, and given that the relevant psychological evidence was only presented in respect of some of the applicants the second respondent was relieved of any obligation to construct a case for the first applicant by “joining the dots”. The very fact that such a case was not pressed on behalf of the first applicant but was pressed in respect of other applicants is inconsistent with the proposition that the second respondent should nonetheless have considered such a case in respect of the first respondent. In my view, the claim was not one the “apparentness of” which arose “sufficiently from the material [so] as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1695 at [15].
The first respondent directs my attention to AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] where the Full Court said:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
These words are apposite here. The case that the first applicant now wishes to prosecute was not merely obscure or less certain than other parts of his claim before both the delegate and the second respondent. It is a claim that he never articulated in any form. To suggest now that the second respondent ought to have appreciated that he might have had a claim similar to that advanced by the third – sixth applicants is to place an illegitimate obligation upon the second respondent.
In my view, the unarticulated claim that the first applicant now wishes to pursue was not a claim that was apparent on the material before the decision- maker. The second respondent therefore did not err by not resolving it.
In oral submissions, the first respondent advanced an alternative argument to the effect that the second respondent had in fact appreciated that argument on the part of the first applicant and had dealt with it in its reasons at [70]. On balance, however, I do not think that the second respondent was overly dealing with such a claim on the part of the first applicant. Rather, the comments that appear in [70] appear to me to be a comment upon the effect upon the first and second applicants of the matters dealt with in [69] upon all of the other applicants.
Nonetheless, even at a reasonably impressionistic level, the applicants do not propose a ground of review that has any reasonable prospects of success. The grant of the extension of time sought by the applicants would be an exercise in futility. That matter, coupled with the delay in filing the application and the unsatisfactory nature of the explanation for the delay means that the application should be refused.
Abuse of process
As an alternative to his main argument, the first respondent submits that it is an abuse of process for the applicants to file and prosecute the second application. Having commenced proceedings and then chosen to discontinue them, the first respondent submits that it is an abuse of process to recommence proceedings in relation to the same subject matter. That is especially so where it would be unlikely that the notice of discontinuance would be set aside.
The first respondent suggests that the authorities as to whether an applicant who has discontinued proceedings must seek to set aside the notice of discontinuance rather than pursue a second judicial review application are in conflict. However, I perceive no conflict in the authorities. Each of them seems to have taken a particular course depending upon the way in which the applicant prosecuted the application and the first respondent’s response to it. In none of them is there a determination that before proceeding on a second application, a discontinuance of an earlier but separate proceeding in relation to the same decision must be set aside.
In SZFOZ v Minister for Immigration and Anor [2007] FMCA 465 the Court treated “an application … seeking orders that a judicial review application be reopened on the basis that the applicant now has fresh evidence to support his case or, in the alternative, that a further application be entertained in this Court” as, “in substance, [an] application [that] seeks the reinstatement of a judicial review application, notwithstanding a notice of discontinuance filed on 31 May 2006.” The dismissal of the application on that basis was upheld by Ryan J on appeal: SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137. In that case, however, there was no second proceeding. The application to reinstate was made in the first proceeding.
In BZAGD v Minister for Immigration and Another [2015] FCCA 3471 the applicant discontinued an application for judicial review and then sought an extension of time to commence another application to review the same Tribunal decision. The Minister argued (and the applicant appears to have accepted) that the extension of time application was, in substance, an application by him to withdraw the notice of discontinuance in the earlier proceeding. The Court dismissed the application to set aside the notice of discontinuance and those orders were upheld on appeal: BZAGD v Minister for Immigration and Border Protection [2016] FCA 670. But the application was treated in the way it was upon the urging of the first respondent and the acquiescence of the applicant. There was no determination about the appropriate way the application should proceed.
In DZY17 v Minister for Home Affairs and Anor [2018] FCCA 1987, the Court was presented with the same factual situation as in this case but, unlike this case, the applicant had not complied with s.486D of the Act in the second judicial review application. Contrary to the first respondent’s submissions here, the Court did not decide to treat the second judicial review application as if it were an application to set aside the notice of discontinuance in the first judicial review application. What the Court at [20] said (my emphasis):
For completeness, I also proceed to consider the Applicant’s argument that the second judicial review application was an application to set aside the Notice of Discontinuance filed 5 September 2017.
The Court made no determination about how the application should proceed. It had already been dealt with by the Court on the s.486D point and the Court had decided that the second application was incompetent for that reason. The decision was upheld on appeal: DZY17 v Minister for Home Affairs and Anor [2018] FCAFC 196.
The first respondent submits that in MZAER v Minister for Immigration and Anor [2016] FCCA 782 the Court followed the approach in DZY17, but that is not so. In MZAER the Court accepted the Minister’s submission that the filing of the second substantive application when the first one had been voluntarily discontinued was arguably an abuse of process. To determine whether it was an abuse of process, the Court determined to apply the principles that might otherwise be applicable to an application to set aside a notice of discontinuance. In determining that issue the Court said:
13. In the matter before me, however, there is no application to set aside the Notice of Discontinuance. Rather, this applicant has simply filed a second application seeking the same remedy in respect of the same subject matter. I see no reason to make distinction in respect of the above principles and their bases.
The Court continued:
14. There is no suggestion of fraud or duress in the filing of the Notice of Discontinuance. That Notice of Discontinuance otherwise deals with and finalises the application. It is simply then impermissible to contemplate further applications in respect of the same issue, seeking the same remedy. It follows that I accept the submissions of counsel for the first respondent that the second application represents an abuse of process and should be dismissed.
MZAER was upheld on appeal: MZAER v Minister for Immigration and Border Protection [2016] FCA 1426. However, the appeal was disposed of on the basis that the applicant’s proposed ground of review in the second application demonstrated no reasonable prospects of success. Importantly, however, Logan J said this:
22. The absence of any reasonable prospect of success in respect of an appeal is reason enough to dismiss this application. I prefer to dismiss the application on that basis. That is because I am by no means persuaded that the mere filing of a second application for extension of time and judicial review following a unilateral notice of discontinuance is in itself an abuse of process. I prefer to leave that as an open question. As to that, I note that r 13.02(3) of the Federal Circuit Court Rules 2001 (Cth) could be read as being premised on it not being an abuse of itself to institute a further proceeding. I say that because the rule seems to assume a power to stay the further proceeding until the costs which followed the earlier discontinuance have been paid.
In Joshi v Minister for Immigration and Anor [2016] FCCA 2168 the Court expressly declined to follow the approach in MZAER. In that case, an applicant had commenced a second application for an extension of time within which to commence an application for judicial review after discontinuing an earlier application, commenced within time, for the same relief. The first respondent submitted, amongst other things, that the second proceedings should be dismissed as an abuse of process because no application had been made to withdraw the notice of discontinuance in the first proceedings. The court rejected that argument. Relevantly, the Court said (my emphasis):
87. An order in this case that would, in effect, strike out the application to the Court without the relevant hearing of that application, should only be made where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1] and Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]). It may even be the case that to dismiss the application as an abuse of process it must be plain and obvious that the grounds of the application are unarguable or that it is a hopeless case that would fail if it were to proceed (Xie v Immigration Department [1999] FCA 365).
88. The absence of such consideration in the Minister’s submission leaves these submissions, in my view, with an approach which can only be described as formulaic. In essence, the Minister proposes that in all cases, an application to extend time which is in relation to the same Tribunal decision, which was the subject of a Notice of Discontinuance of an earlier application for judicial review, should simply be dismissed on that basis.
The first respondent promotes the same argument here. The Court went on:
99. It is the case that the repeated bringing of similar applications, where it would be unjustifiable, oppressive or vexatious, or would bring the administration of justice into disrepute, may be an abuse of process (see Walton and Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at [4] – [6]). It is also the case that there is a public interest in the finality of litigation and that a party should not be repeatedly vexed in the same matter (Johnson v Gore Wood & Co [2002] 2 AC 1 at [22] – [34] per Lord Bingham).
100. However, none of these arguments were raised by the Minister in the current proceedings. In my view, the Minister’s position would have been strengthened if he applied to himself the same standard as he requires from an unrepresented applicant.
The Court rejected the course adopted in MZAER and expressed agreement with the course adopted in BZAGD.
MZAER has also not been followed in two further cases to which the first respondent drew my attention: AGX16 v Minister for Immigration and Anor [2016] FCCA 2445; CVA15 v Minister for Immigration and Anor [2017] FCCA 132.
In AGX16 the Court rejected the first respondent’s argument that the filing of a subsequent application to extended time to commence a further judicial review application, where that application relied upon different grounds to those in the earlier discontinued application, was sufficient, without more, to be an abuse of process and thereby justify the summary dismissal of the extension application: [35] – [36].
In CVA15 the Court again rejected the approach in MZAER and pointed out the remarks I have extracted above from the appeal judgment in that case where the appeal court expressed a failure to be persuaded that the mere filing of a second application for extension of time and judicial review following a unilateral notice of discontinuance is in itself an abuse of process. The Court drew further from SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 which was an appeal from a judgment of this Court on a similar issue. The passages relied upon in CVA15 from SZFOG bear repeating (my emphasis):
27. I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be ‘unjustifiably vexatious and oppressive’, the Court also made it clear that this should only occur in an extreme or exceptional case.
28. In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour’s reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour (Applicant S503) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all.
As was pointed out in CVA15 at [13] that SZFOG is binding in this Court. The remarks set out above are part of the ratio of that decision.
None of the cases I have reviewed above, save for the primary decision in MZAER stands for the proposition advanced by the first respondent in this case. It was doubted in the decision on the appeal in MZAER. It has been expressly not followed and has not been applied since. It troubles me that I am being asked to decide a case according to an argument that has been rejected many times now and which the first respondent must know has been rejected and is the subject of contrary authority that binds this Court in SZFOG. Indeed, the only reference to that binding authority is in the first respondent’s submission is fleeting at best:
62 The Minister submits that this Court should follow the approach in SZFOG, BZAGD, DZY17, and MZAER, with the result that the applicants’ failure to apply to set aside the notice of discontinuance in the first application renders the second application an abuse of process.
I reject the first respondent’s arguments that it is an abuse of process for the applicants to:
a)file and prosecute the second application, on that basis alone; and
b)pursue the second application without applying to set aside the notice of discontinuance in the first application.
Both propositions are contrary to established principle.
So that it is clear, the filing of a notice of discontinuance preserves the cause of action the subject of the proceedings that is discontinued. Discontinuing a proceeding creates no estoppel or res judicata. It is an act taken by a party to the proceeding, not by the court in which the proceeding is pending. It is different to an order dismissing proceedings which has the potential to act as a determination of the issues in the proceedings as between the parties which thereafter binds them. That is the primary point of distinction between discontinuing proceedings – an act of one of the parties – and dismissal of the proceedings – an act of the Court.
It is not the case that the recommencement of proceedings following a discontinuance might not amount to an abuse of process. But everything depends upon the facts of the case at hand: Williams v Spautz (1992) 174 CLR 509; Walton and Rogers v The Queen (1994) 181 CLR 251 at 392-393, 398-399. It might be that in the circumstances of the present case, the filing of these proceedings is an abuse of process. But no attempt to demonstrate that, beyond the matter I have already identified and rejected with was made.
Finally, the first respondent submits that (footnotes omitted):
64. The applicants made an informed decision to pursue an alternative avenue of relief (ministerial intervention). It was the applicant’s decision to pursue ministerial intervention and they should bear the consequences of its failure. The circumstances in which a discontinued proceeding can be revived are very limited for a reason because the law places great value on the principle of finality of litigation and that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. If the second application was not treated as an abuse of process, with the effect that the applicants were then not required to justify to this Court why it ought to set aside the notice of discontinuance filed in the first application, then that would be a rogue’s charter to enable an unsuccessful visa applicant to extend their stay in the country indefinitely by simply commencing judicial review proceedings and discontinuing them before they are determined.
I reject that submission in its entirety. As was pointed out in CVA15 at [31] the withdrawal of a notice of discontinuance is a completely separate matter from the question of whether the second proceeding is an abuse of process. Different principles apply to the resolution of each application although some of the relevant matters that might inform a decision on each may overlap. But in no sense can I think it be said that it is necessary for a notice of discontinuance in earlier proceedings to be set aside before a second proceeding seeking the same relief can be found to not be an abuse of process.
Conclusion
For the reasons set out above, the application seeking an extension of time within which to commence judicial review proceedings by an application in the amended form no proposed by the applicants will be dismissed. Costs should follow the event.
One last matter. It is appropriate to repeat the comments made in Joshi (above) at [106]:
I also note that in BZAGD the course adopted by the Court appeared to emanate from the Minister’s own argument (see BZAGD at [4] and above at [104]). This is in contrast to the approach taken by the Minister in the current case and in MZAER. Some consistency by the Minister in his approach to these cases with relevantly identical circumstances would assist the Court in the efficient administration and disposition of the large volume of migration cases.
To that I would only add that the consistent approach should be in accordance with principle that emanates from the authorities that are binding on this court.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 July, 2020.
Associate:
Date: 15 July, 2020
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