DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3340
•8 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3340
File number(s): SYG 2314 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 8 December 2020 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – application for reinstatement of show cause application which had been dismissed by a self-executing order due to con compliance with the order
PRACTICE AND PROCEDURE – abuse of process – Application in a Case for reinstatement prepared by a person impersonating the applicant’s solicitor
Number of paragraphs: 13 Date of hearing: 8 December 2020 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitors for the Applicant: ABU Legal Solicitors for the Respondents: Ms E Cheesman of Clayton Utz ORDERS
SYG 2314 of 2017 BETWEEN: DHH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
8 DECEMBER 2020
INTERLOCUTORY ORDERS:
1.The Application in a Case filed on 26 October 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,000.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER
I have before me what purports to be an Application in a Case filed on 26 October 2020 purportedly prepared by the applicant’s solicitor. The application in the case seeks to re-open the case and to allow legal argument.
The background circumstances are that earlier the applicant had applied for judicial review of a decision of the Immigration Assessment Authority (Authority). On 20 July this year my associate emailed the parties to remind them that the matter was listed for hearing at 2.15pm on 30 July 2020. The email stated that the hearing would be conducted by telephone and gave instructions as to how to dial into court. On the same day my associate received an email response from a person called [redacted] from the email address given on the judicial review application stating, relevantly:
I am the applicant to the above matter. Currently I am in Melbourne and in self isolation. I don’t have the energy or mental strength to face hearing. Since early March I don’t have a job and no money to employ a Lawyer. I am, humbley requesting to adjourn for some time. Please understand my pledging.
Thanks
JS
(errors in original)
My associate responded on the same day informing the applicant that he would need to ask the Minister’s solicitor for consent to an adjournment and that if there was no consent the issue of an adjournment would be addressed at the hearing. There was then a further email on 30 July 2020 also from [redacted] stating:
Dear Associate, I am Writing to inform you that client has been taken by Paramedics amid Covid 19, now he is in isolation, he has no mobile phone. I have spoken to Ministers Council. I been advised by her to write the court. Humbley requesting you to provide another date.
SriLankan Community Volontear
[redacted]
(errors in original)
The matter was called on 30 July 2020 and there was no appearance by or on behalf of the applicant. An attempt to contact the applicant by telephone was not successful. In the circumstances, I made a number of notations and orders:
THE COURT NOTES THAT:
A. The applicant failed to appear at today’s scheduled hearing.
B. The applicant emailed the Court on 20 July 2020 to say that he is in Melbourne in self-isolation and sought an adjournment.
C. A purported Sri Lankan community volunteer using the same email address as the applicant emailed today saying “…that client has been taken by Paramedics amid Covid 19, now he is in isolation, he has no mobile phone...”
D. The applicant’s application filed 21 July 2017 provides an address for service in Sydney.
THE COURT ORDERS THAT:
1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The applicant is to provide medical evidence verifying the assertions in the email of 30 July 2020 by 28 August 2020.
3. The applicant is also to provide an address for service in Melbourne by 28 August 2020.
4. In the event the applicant complies with orders 2 and 3 of these orders the following orders shall apply:
a. This hearing is adjourned to 10.15am on 7 September 2020.
b. Any submissions upon which the applicant wishes to rely is to be filed and served not less than 14 days before the hearing.
c. Any submissions the Minister wishes to rely upon are to filed and served not less than 7 days before the hearing.
5. In the event the applicant fails to comply with orders 2 or 3 of these orders, the application is dismissed by force of these orders with effect from 29 August 2020.
6. In the event the application is dismissed by force of order 5 of these orders, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.
Suffice to say that I was not at the time persuaded as to the truthfulness of what had been represented to my associate and the orders I made put the applicant to proof of those assertions. The orders included a self‑executing order for dismissal of the application with costs in the event that the proof sought was not forthcoming.
The proof was not forthcoming and hence the matter was dismissed by force of the self-executing order. In the meantime, the applicant had obtained legal representation in August of this year. The solicitors filed a notice of appearance. An amended application was also filed and counsel was retained for the purpose of arguing it. Submissions were filed on 26 August 2020. The applicant’s legal representatives appeared to be labouring under the misapprehension that the matter was proceeding to a further hearing in accordance with the alternative orders if the Court had been satisfied as to the proof of the matters sought from the applicant.
That false understanding, however, was corrected both by my chambers and by the Minister’s solicitors. That led to the purported Application in a Case filed on 26 October 2020. What is striking now is that although that Application in a Case was purportedly completed by the applicant’s solicitors, they disavow it. I am told that the Application in a Case is, in effect, a fabrication put in the name of the solicitors, but, in fact, created by the person [redacted].
Exhibit R1 is an affidavit which was not read by the applicant this morning when the Application in a Case was called on for hearing. The affidavit was, however, tendered by the Minister’s solicitor. That affidavit is now said by the applicant also to be a fabrication and falsely created providing the details of the applicant’s solicitors. The solicitors disavow knowledge of it. At [4] of that affidavit the applicant purports to confirm what was put to my associate by email by the person [redacted]. I am now told that this affidavit was created by [redacted] and is incorrect.
The applicant does rely upon an affidavit made and filed yesterday. In that affidavit the applicant deposes as to what are said to be the true circumstances. Relevantly, the applicant deposes that he attended a conference with his solicitor and counsel on 2 December 2020 with [redacted] where, in effect, they confessed as to the prior falsehoods. At [12] the applicant states that he made enquiries with [redacted] following the meeting with his solicitor and counsel and was told by [redacted] that he had written the emails to my associate which the applicant was previously not aware of and does not endorse.
The applicant deposes at [13] that on 5 December 2020 he contacted his solicitor and told him the following. First, that he was misled by [redacted] in the past about his application, and, secondly, that he has no knowledge of the communication made on his behalf to my chambers on 20 and 30 July 2020. At [14] the applicant apologises to the Court for the correspondence provided purportedly on his behalf which he says was untrue in its entirety. At [15] the applicant states that [redacted] drafted and filed the Application in the Case and filed the affidavit in support.
The circumstances are obviously unusual and unsatisfactory. What is clear to me is that I took the appropriate course of requiring proof from the applicant as to his asserted inability to attend court on 30 July. It is also clear that the self-executing order operated appropriately in the absence of that proof. The application upon which the applicant now seeks to disturb those orders is an abuse of process in that it contains falsehoods as to its creation and there were further falsehoods in the affidavit purportedly in support.
The applicant through his solicitor and counsel seeks, nevertheless, to use the Application in a Case as a vehicle to have the prior orders set aside. In my view, it would be contrary to the interests of the administration of justice to permit an abuse of process to succeed in circumstances such as the present. I conclude that the appropriate course is to dismiss the purported Application in a Case with costs and I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,000.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 11 December 2020
1
0
0