Deng v Minister for Immigration
[2019] FCCA 2517
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DENG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2517 |
| Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – where late request to amend original application made in oral submissions – where weaknesses in applicant’s originating application may be the result of failures on the part of her solicitor – leave to amend original application granted – application for summary dismissal denied. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03B, 13.10, 44.05 Migration Act 1958 (Cth), ss.476, 477, 486E, 486F, 486I Migration Regulations 1994 (Cth), PIC4020 of sch.4 |
| Cases cited: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641 EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60 |
| Applicant: | RONGRONG DENG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 228 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 4 September 2019 |
| Date of Last Submission: | 4 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Lo |
| Solicitors for the Applicant: | VL Legal |
| Counsel for the First Respondent: | Mr P R Macliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
By 4.00 pm on 27 September 2019 the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
By 4.00pm on 27 September 2019 the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review and the application for an extension of time.
In the event the applicant fails to comply with order 1 and 2, the proceedings be dismissed pursuant to r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
By 4.00 pm on 4 October 2019 the first respondent shall file a bundle of relevant documents (green book) in electronic form and for that purpose, the document shall:
(a)be in portable document format (pdf);
(b)be capable of being searchable for specified text;
(c)have an index and shall be paginated;
(d)have each entry in the index bookmarked; and
(e)be set so that when opened:
(f)it shall display at 100% zoom; and
(g)the bookmarks menu shall be displayed.
By 4.00 pm on 4 October 2019 the first respondent shall serve a bundle of relevant documents (green book) on the applicant.
By 4.00 pm on 18 October 2019 the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review.
By 4.00 pm 28 days prior to the hearing date the applicant shall file and serve written submissions and a list of authorities in support of the application.
By 4.00 pm 14 days prior to the hearing date the first respondent shall file and serve written submissions and a list of authorities in respect of the first respondent’s response to the application.
The application be listed for a final hearing at 2.00pm on 25 November 2019 before a Judge in the Federal Circuit Court of Australia sitting at Perth.
Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days clear notice of the time, date and place of that listing.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 228 of 2019
| RONGRONG DENG |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application in a case filed by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister”). That application seeks summary dismissal of an application brought by the applicant in this Court on 26 June 2019.
The applicant’s application for judicial review seeks review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 5 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (the “visa”).
The applicant’s application for judicial review also seeks an extension of time as it was lodged outside of the statutory time limit prescribed in s.477 of the Migration Act 1958 (Cth) (the “Act”). However, at hearing, neither the extension of time application nor the substantive application were before the Court for resolution. Rather, what the Court was asked to determine was the Minister’s summary dismissal application brought pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
Factual Background
The Court only received a copy of the Tribunal’s decision by way of correspondence. For that reason, the Court marked the Tribunal’s decision as “Exhibit 1”.
The relevant factual background to this matter is largely derived from the Tribunal’s decision.
The applicant is a citizen of China. She arrived in Australia on 25 December 2017.
On 19 March 2018, the applicant lodged an application for the visa the subject of her judicial review application.
On 20 July 2018, a Ministerial delegate refused the visa application because it was determined that the applicant had provided false and misleading information or a bogus document to the Minister’s department in relation to her visa application.
The applicant then sought review of the delegate’s decision by the Tribunal. The applicant was represented before the Tribunal.
Ultimately, the Tribunal rejected the applicant’s claim that the bogus document was provided unknowingly. The Tribunal found it implausible that the document was forged or altered by the applicant’s migration agent (as she had alleged) and determined that, in any event, it was the applicant’s responsibility to ensure that the material she provided as evidence in her visa application was genuine.
On the basis of the above, the Tribunal determined that the applicant did not meet Public Interest Criterion (“PIC”) 4020(1) of sch.4 of the Migration Regulations 1994 (Cth) (the “Regulations”) as she had provided a “bogus document”.
The Tribunal then considered whether it ought to waive PIC 4020.
The Tribunal was not satisfied that there were compassionate and compelling reasons to waive PIC 4020 – namely because, when asked by the Tribunal for any submissions or information, the applicant indicated that she had no further submissions or information.
Accordingly, the Tribunal affirmed the delegate’s decision.
The Judicial Review Application
The applicant filed her application for judicial review in this Court on 26 June 2019. The application was 78 days late. She was represented by a solicitor, Mr Lo, who prepared and filed the relevant forms.
As noted, the applicant sought an extension of time to file her judicial review application. The grounds on which the applicant sought an extension of time were as follows:
1. The Applicant needs more time to seek legal advice.
2. The Applicant is waiting for funds from his friends to lodge and file Application for Appeal.
3. The Applicant was unable to work as he did not have any working rights in Australia
(Emphasis added. The Court notes that the applicant is a female – an issue that is discussed further below)
The grounds of the judicial review application were as follows:
1. The Applicant did not attend the Tribunal Hearing as he was unwell.
2. There are further new evidence to be supplied in support of the Applicant’s application and the tribunal or court ought to take all relevant evidence into consideration up and until the time of the decision.
In an affidavit of the applicant sworn 10 June 2019 (filed with the judicial review application) the applicant deposed:
1. I am the main applicant of a student visa subclass 500.
2. I arrived Australia on a tourist visa.
3. I later decided to improve my studies where I enrolled a business course in an education institution in Melbourne.
4. I was granted a bridging visa after I lodged my student visa application.
5. Despite the grant of my student visa was pending, I continued to attend school in Melbourne.
6. In or around May 2018, I had to travel back to my home country due to a family emergency.
7. Upon my return to Australia in June 2018, I received a notification from the Department of Home Affairs that my student visa application was unsuccessful.
8. I was surprised with the decision and I have decided lodge an appeal in the Administrative Appeals Tribunal.
9. After I lodged my appeal, I received a notification from the member of the tribunal that I was immigration cleared and there was jurisdiction to review the refusal decision.
10. I later lodged another appeal in the Federal Circuit Court and my matter was remitted back to the Administrative Appeals Tribunal.
11. I later applied for a Bridging Visa B for me to travel back to China such that I can obtain all the relevant documents for the appeal.
12. When my matter was remitted back to the Administrative Appeals Tribunal, I was granted a bridging visa B but it did not allow me to travel.
13. In or around November 2018, I applied for a bridging visa B for travel but that visa was rejected as the Department did not believe that there was a genuine reason for me to travel.
14. When the new bridging visa B application lodged in November 2018 was refused, I was not reinstated with another bridging visa.
15. I say that the Department had caused me to be unlawful on several occasions being:
a. I did not have a visa in or around June until October 2018 as the Department claimed that I was immigration cleared;
b. I was then reinstated with a bridging visa B instead of a bridging visa A after the mistake from the Australian Border Force
c. I was ought to hold a bridging visa A even when my new bridging visa B application was refused.
16. I also say that at the time of my appeal in or around February 2019, I was not given a fair opportunity to present my case.
17. I have numerous documents that were unable to be retrieved when I am currently in Australia.
18. I have conveyed and confirmed this information with the member of the Tribunal and requested for an adjournment.
19. The adjournment was refused and my appeal lost.
A number of issues arise from the judicial review application which are relevant to the Minister’s summary dismissal application. The Court will consider these issues in detail below.
Summary Dismissal
Rule 13.10 of the Rules states:
Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The Minister bears the onus of persuading the Court to make an order for summary dismissal. The Court must be satisfied that a proceeding has no reasonable prospects of success: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641. This is a heavy onus and the Court will draw all inferences in favour of the applicant unless it is not reasonable to do so: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60 at [124], [126] and [132].
The principles relevant to summary judgment were summarised by the Federal Court (in respect of analogous provisions in the Federal Court Rules 2011 (Cth)) in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] as follows:
...
(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
... will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
At a directions hearing before a Registrar of this Court orders were made by consent allowing the Minister and the applicant an opportunity to provide any affidavit evidence and an outline of submissions in respect of the summary dismissal application. The applicant provided no further documents. The Minister relied on an affidavit sworn in support of the judicial review application and an outline of submissions that was filed on 9 August 2019.
At hearing, the Court received into evidence the applicant’s affidavit outlined at [18] above.
Minister’s Case
The Minister filed an affidavit of Marie Anne Lise Solene Yik Long sworn 23 July 2019 in support of the application for summary dismissal. That affidavit deposed that, on 15 July 2019, Ms Yik Long sent an email to Mr Lo (solicitor for the applicant) in the following terms:
The first respondent’s position is that the application should be dismissed for the following reasons:
- Firstly, it does not comply with section 4861 of the Migration Act 1958. As you would be aware, section 486I (1) of the Act provides that a lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. Subsection (2) provides that a Court must refuse to accept a document commending migration litigation if it has not been certified.
- Secondly, the application appears to relate to another applicant given that Rongrong Deng is a female and attended the Tribunal for her hearing, whilst the ground of review stated in the application refers to a male who did not attend the Tribunal hearing.
In these circumstances, we invite you to file an amended application with the Federal Circuit Court containing proper grounds and the required lawyer's certification. If we do not receive any amended application by COB on 23 July 2019, we will file an application for summary dismissal.
No response was received from Mr Lo.
The Minister then proceeded to file the application for summary dismissal.
The Minister’s submissions in support of the application being summarily dismissed can be summarised as follows.
a)both grounds are wholly unparticularised and, for that reason alone, they can be dismissed;
b)in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], Justice Colvin observed that where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit. It was submitted that that is the case here;
c)ground 1 bears no resemblance to the facts of this matter. It refers to a male applicant where the applicant is female, and also refers to the applicant being unwell and not attending the hearing when the applicant did, in fact, attend the Tribunal hearing on 21 February 2019;
d)ground 2 contravenes the well-established principle that fresh evidence is not admissible on judicial review, particularly where such evidence was not before the Tribunal;
e)in any event, the Tribunal’s finding that the applicant did not meet the requirements of PIC 4020 was plainly correct. The Tribunal correctly noted the requirements of that criterion and relevant case law, and found as a matter of fact that the applicant had given or caused to be given a bogus document in support of her student visa application. The Tribunal allowed the applicant and her representative time to provide further submissions and evidence, but none were received;
f)in relation to the applicant’s extension of time application, the applicant’s three month delay in commencing these proceedings is lengthy and there is no affidavit evidence that explains the delay between the Tribunal’s decision being handed down on 5 March 2019 and the filing of the extension of time application on 26 June 2019;
g)the operation of s.486I of the Act states that a Court must not accept for filing a document commencing migration litigation if the document is filed by a lawyer and the lawyer has failed to certify in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success; and
h)it is clear from the face of the application for an extension of time filed 26 June 2019 that the application was prepared and filed by Victor Lo of VL Legal, who remains listed as the legal representative for the applicant. The application for an extension of time is devoid of merit, and in those circumstances the absence of the lawyer’s certification is pronounced.
Applicant’s case
As noted, the applicant did not file written submissions. Given that the applicant is legally represented by Mr Lo, the failure to comply with an order of this Court is concerning.
Mr Lo appeared on behalf of the applicant at the hearing before this Court. He explained that the applicant had returned to China but that he was still being instructed by her. He indicated that over the last two months the applicant had not been in contact with him.
Mr Lo’s submissions to the Court were unhelpful. The Court is of the view that Mr Lo was aware of the purpose of the hearing but was unprepared to address the summary dismissal application. When pressed to do so, Mr Lo claimed:
a)the judicial review application has a reasonable prospect of success and an extension should be granted;
b)the applicant has returned to China to retrieve the documents she wanted to provide to the Tribunal. When asked why that would assist the Court on judicial review, Mr Lo stated that the documents were “evidence”. When asked what jurisdictional error he was suggesting the documents would point to, Mr Lo was unable to articulate anything other than that they would assist “the appeal”;
c)when advised by the Court (and Counsel for the Minister) that he might be suggesting that it was “unreasonable” for the Tribunal not to provide more time to the applicant to retrieve documents relevant to the Tribunal hearing, Mr Lo indicated that he could file an amended application reflecting that ground of review within 14 days;
d)he did not respond to the email from the Minister’s solicitors as he could not contact the applicant to take instructions as she left the country on 15 July 2019 and he was only able to get in contact with her the day before the hearing; and
e)the reason that he did not certify the judicial review application was because without the documents that the applicant has now retrieved in China, he could not be sure that the judicial review application had a reasonable prospect of success.
Consideration – Summary Dismissal
The Court has a number of concerns with the judicial review application, as follows:
a)there has been no certification by a lawyer pursuant to s.486I of the Act and it is manifestly apparent that Mr Lo prepared the application;
b)a number of other matters that have come before the Court in which Mr Lo was the legal representative bear the same grounds of review as the present application;
c)the application ought to have been refused for acceptance under s.486I(2);
d)the application is not supported by an accompanying affidavit that annexes a copy of the Tribunal’s decision (as required by r.44.05(2)(a) of the Rules);
e)the application for an extension of time is not supported by an accompanying affidavit explaining the reasons for the significant delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension (as required by r.44.05(2)(c) of the Rules); and
f)the application simply seeks an order that the decision of the Tribunal be quashed. This is the only order that is sought. Without an order seeking a writ of mandamus or an injunction against the Tribunal, the Court’s jurisdiction under s.476 of the Act is not properly invoked.
A number of other concerns also arise.
First, the articulated grounds upon which the applicant seeks an extension of time are entirely unmeritorious. Specifically:
a)the applicant is and has been represented by Mr Lo and, as such, does not need “more time to seek legal advice”;
b)the applicant is a female; hence the reference to male pronouns in grounds 2 and 3 suggests that these grounds are entirely formulaic and have not been formulated to address the specific circumstances of this particular applicant; and
c)again, noting that the applicant is represented, a lack of legal advice or insufficient funds are generally not an acceptable explanation for a delay. Further, there is no evidence before the Court in relation to the applicant’s financial situation or “lack of funds”. Nor is there any evidence of what steps the applicant took to obtain legal advice (and when that advice was obtained).
Second, the grounds of the judicial review application as currently articulated are entirely unmeritorious. The Court accepts the Minster’s submissions that the fact that the applicant is represented and was afforded an opportunity to remedy the identifiable defects by the Minister and has not done so means that the application may be dismissed for a failure to particularise. The Court can do so without any consideration of the underlying merit in the application or assessment for any error on the face of the Tribunal’s decision.
Third, the matters highlighted in the applicant’s affidavit are largely irrelevant. The first 15 matters are of no assistance to the Court on judicial review. To the extent that the applicant claims that she was “made unlawful” because of the actions of the Department or that she was not given the correct bridging visa, these are not matters that have any bearing on whether the Tribunal fell into error.
The application as it stands is incompetent. The application could be summarily dismissed on that basis. The applicant was offered an opportunity to remedy the defects in the application and did not do so.
Despite that finding, it is not entirely clear to the Court whether the defects in the judicial review application are the fault of the applicant or Mr Lo. The Court’s sense is that Mr Lo is, at the very least, responsible for many of the inadequacies evident in the judicial review application.
However, Mr Lo now says that he can (upon receiving instructions) file an amended application.
In relation to that proposed amendment, to the extent that the applicant alleges that the Tribunal erred in not granting her an adjournment to get more documentation, the Court is satisfied that this proposed ground, while not yet fully developed, is arguable from a reasonably impressionistic perspective: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. It cannot be said that the prospects of the proposed ground succeeding is “hopeless or very low”: EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 at [51].
Although arguably unusual, the Court will allow Mr Lo an opportunity to amend the application for judicial review. It does so solely because the Court has concerns that Mr Lo has not adequately served his client’s interests and the Court is loath to penalise an applicant for any failings on the part of her solicitor.
While representative error is not an excuse or explanation for incompetency, the Court is not prepared to dismiss the applicant’s application summarily because of her lawyer’s conduct when there is, arguably, some merit in a proposed ground of review.
The application as it stands has no merit. However, the Court will allow the applicant 14 days to file an amended (and competent) application. In the event this application is not filed within this 14 day period, the application will be dismissed.
Conclusion
The Court is not prepared to dismiss the judicial review application pursuant to r.13.10 of the Rules in circumstances where Mr Lo has indicated that he can file an amended application identifying a ground of review that is “arguable”.
The applicant will have 14 days to file the amended application and remedy any deficiencies the Court has outlined in these reasons.
If the applicant fails to file the amended application within 14 days, the application will be summarily dismissed: Rules, r.13.03B(1)(c).
General programming orders will also be made to ensure the matter is listed for hearing at the next appropriate date.
Any determination as to costs will be reserved.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 September 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0
8
5