DZY17 v Minister for Immigration - [2018] FCCA 1987

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZY17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1987

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal –where Applicant filed two applications seeking judicial review of the same decision – where Applicant filed a Notice of Discontinuance in one proceeding – application before the Court is incompetent – to the extent necessary the application to set aside the Notice of Discontinuance is dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.4.03.

Federal Court Rules 2011 (Cth).

Migration Act 1958 (Cth), ss.65, 477, 486D.

Cases cited:

Chen v Monash University [2016] FCAFC 66.

CHD16 v Minister for Immigration & Anor [2017] FCCA 1679.

COB16 & Ors v Minister for Immigration & Anor [2018] FCCA 152.

Khadri v Minister for Immigrationand Border Protection [2014] FCA 91.

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280.

MZXPI v Minister For Immigration & Anor [2008] FMCA 1296.

Singh & Anor v Minister for Immigration & Anor [2017] FCCA 223.

SZKUT v Minister for Immigration & Anor [2008] FMCA 241.

TCWY v Minister for Immigration and Border Protection [2018] FCA 804.

Applicant:

DZY17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1933 of 2017

Judgment of:

Judge Hartnett

Hearing date:

16 July 2018

Delivered at:

Melbourne

Delivered on:

16 July 2018

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Jackson

Solicitors for the First Respondent:

Australian Government Solicitor

THE COURT DECLARES THAT the application filed 5 September 2017 is incompetent.

THE COURT ORDERS THAT:

To the extent necessary, the application to set aside the notice of discontinuance filed 5 September 2017 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1933 of 2017

DZY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Introduction

Before the Court is a purported application filed by the Applicant on

5 September 2017, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 August 2017. By that decision, the Tribunal affirmed an earlier decision of a delegate of the Minister (‘the delegate’) to refuse to grant to the Applicant a protection (Subclass 866) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
This is the Applicant’s second judicial review application in respect of the same proceeding. On 25 August 2017, the Applicant filed an application in the Perth Registry of the Court seeking judicial review of the Tribunal’s decision dated 15 August 2017 in proceedings numbered PEG458/2017.
On 5 September 2017, the Applicant filed a Notice of Discontinuance in proceeding number PEG458/2017. In oral evidence given this day, the Applicant confirmed that she personally filed the Notice of Discontinuance; that she did so online; that the signature which appears under the heading “Signature of person or lawyer” is her signature; that importantly, by filing the Notice of Discontinuance, she knew that she was bringing her case to an end, and that no one forced her to file such Notice of Discontinuance.
The oral evidence of the Applicant, together with her affidavit evidence, which simply stated that for personal reasons, she filed her Notice of Discontinuance, they being elaborated upon in the witness box to include that she filed her Notice of Discontinuance in proceedings numbered PEG458/2017 “because [she] could not move to Perth”, lead the Court to conclude that there was in the filing of the Notice of Discontinuance by the Applicant no abuse of process, but rather, a deliberate and informed act of the Applicant, and that no element of fraud or duress procured the Notice being filed by her.
On 5 September 2017, the Applicant filed the current application which is before the Court seeking judicial review of the Tribunal decision dated 15 August 2017, these proceedings are numbered MLG1933/2017.
The Applicant relies upon her affidavit evidence sworn 5 September 2017; submissions dated 26 June 2018 and 12 July 2018; and a chronology dated 12 July 2018. The First Respondent relies upon an affidavit of Ms Melinda Anne Jackson affirmed 9 July 2018; and submissions dated 9 July 2018. There is before the Court the evidence in the Court Book filed 30 May 2018.

Background

The Applicant is a citizen of Thailand. She first arrived in Australia in October 2003 as the holder of a (Subclass 574) student visa.
The Applicant had thereafter a lengthy immigration history comprising numerous student and visitor visa applications and visas granted to her, together with bridging visas. That immigration history is as set out in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) at paragraphs 2, 3 and 4.
On 12 March 2013 the Applicant applied for a partner visa, which was refused by a delegate of the Minister, a decision affirmed on review by the Migration Review Division of the Tribunal on 13 July 2015.
The Applicant applied to the Department for a protection visa on 30 July 2015. She attended an interview with the delegate on 15 November 2015. The delegate refused the visa application on 19 November 2015.
On 9 December 2015 the Applicant lodged an application for review with the Tribunal. The Tribunal conducted a hearing on 15 August 2017. The Applicant appeared before the Tribunal on that date to give evidence and present arguments. She was assisted by an interpreter in the Thai and English languages.
On 15 August 2017 the Tribunal affirmed the decision of the delegate. The Applicant then proceeded to file her first application for judicial review in the Perth Registry of the Court, as described above.

The second judicial review application is incompetent

The Minister submits that the application for judicial review dated

5 September 2017 is incompetent under sub-s.486D(1) of the Act. Subsection 486D(1) of the Act provides that:-
“(1) A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.”
It is not an issue in these proceedings that the Applicant made no reference to her first judicial review application lodged in the Perth Registry of the Court in proceedings numbered PEG458/2017, in her second judicial review application filed 5 September 2017. She simply failed to disclose to the Court the earlier judicial review proceeding in both her application and supporting affidavit.
The Court has previously held that sub-s.486D(1) of the Act imposes a jurisdictional precondition to the commencement of proceedings. Further, the Court has held that a failure to comply with sub-s.486D(1) of the Act means that the Court lacks jurisdiction.[1]
[1] Singh & Anor v Minister for Immigration & Anor [2017] FCCA 223.
If an Applicant does not disclose their previous review proceeding in accordance with s.486D, their application for judicial review is “incompetent” and “incurable”.[2]
[2] MZXPI v Minister For Immigration & Anor [2008] FMCA 1296, 14-17, citing SZKUT v Minister for Immigration & Anor [2008] FMCA 241,11-15.
In TCWY v Minister for Immigration and Border Protection [2018] FCA 804 (‘TCWY’), at paragraph 27, Perry J considered decisions of the Court as referred to above in circumstances where the Applicant in the proceedings before her Honour contended, that the Court’s decisions were “wrongly decided and should be overruled”. Her Honour said as to that submission at paragraph 28:-
“28. I accept that the principles in Project Blue Sky apply by analogy to the question of statutory construction here, albeit that the question here is whether the proceeding is competent rather than “invalid”. However, in my view, the decisions of the FCC and the FMC correctly construed subs 486D(1) in line with these principles as imposing a jurisdictional precondition which must be met at the time that the proceeding is commenced. As such, subs 486D(2), which applies to the Federal Court but is otherwise in the same terms, should be construed in the same way.”
Her Honour said further, relevantly, at paragraphs 30, and 32 to 34:
“30. … in expressing the requirement in s 486D as a prohibition on a person commencing a proceeding, it is plain that the Parliament did not intend that the courts to which the section applies would entertain proceedings commenced in violation of the disclosure requirement. To construe the provision otherwise would be to undermine the prohibition. As such the requirement can be described as a jurisdictional precondition with the consequence that a failure to comply with the requirement renders the proceeding incompetent.
…
32. … as the applicant accepted, the purpose of s 486D is to prevent a multitude of different proceedings in different courts being pursued which challenge the same administrative decisions. As Smith FM held in SZKUT at [14], the jurisdictional nature of s 486D is confirmed by the extrinsic materials which, in enacting s 486D of the Act in 2005, “attempted to meet a problem faced by the Courts arising from the repeated bringing of judicial review proceedings. Section 486D was intended to require applicants to be candid with the Court in that respect, at the time when they initiated their new proceeding” (referring to the Migration Litigation Reform Bill 2005, Explanatory Memorandum (HR) (Explanatory Memorandum): see further the Explanatory Memorandum General Outline). By such means, the Parliament sought to assist the courts and the Minister in identifying applications which have already been the subject of proceedings for judicial review and to discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia: Explanatory Memorandum at [51].
33. … while the applicant submitted that a construction of the provision as imposing an incurable prohibition was unlikely given the “inconvenience writ large” that would result from such a construction, that submission fails to take into account that the applicant may make a fresh and competent application which complies with the statutory requirement. A failure to comply with the disclosure requirement is not, in other words, a bar to further proceedings being instituted which comply with s 486D. Furthermore as indicated by the extrinsic material, Parliament’s object was to improve the overall efficiency of migration litigation amid concerns as to large increases in the number of migration matters in the federal courts and high levels of unmeritorious migration litigation. It can readily be understood that overall, greater efficiencies are likely to be achieved by the disclosure of all other judicial review proceedings from the outset rather than by ad hoc disclosure later in the proceedings when significant resources may already have been expended in defending a proceeding that may, for example, constitute an abuse of process.
34. For these reasons, I agree that the construction of s 486D adopted by the FCC and FMC in the decisions relied on by the Minister is correct. It follows that the fact that the Minister appears to have known of the first judicial review application from the outset is irrelevant, contrary to the applicant’s submission. It also follows that the application must be dismissed by reason of the failure to comply with s 486D(2) of the Act when the proceeding was commenced and the application for leave to amend must be refused.”
In the interests of judicial comity and in accordance with the decision of Perry J in TCWY, the Court concludes that the application is incompetent.
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 Applicant relies upon a written reply dated 12 July 2018 to the First Respondent’s submissions of 9 July 2018.
The Minister opposes the application for reinstatement of proceeding PEG458/2017.
The Court shall refuse that application for the following reasons.
There is no express power to set aside a notice of discontinuance, either under the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’) or the Federal Court Rules 2011 (Cth). However, the Court has an inherent power to set aside a notice of discontinuance in certain circumstances.[3]
[3] COB16 & Ors v Minister for Immigration & Anor [2018] FCCA 152, 24.
The Court’s implied power to reinstate a proceeding exists to prevent an abuse of process of the Court and protect the integrity of those processes.[4] That power will only be enlivened where the party 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.”[5]
[4] Chen v Monash University [2016] FCAFC 66, 41.
[5] Ibid, 46.
The power is not available for other reasons “beyond those concerned with correcting an abuse of process”.[6]
[6] Ibid, 47.
In Moussa v Minister for Immigration and Border Protection [2015] FCA 1280, Perram J considered the FCC Rules and authorities, as set out in paragraphs 9 to 12 of the reasons for judgment, his Honour said, in paragraph 13:-
“Four principles may be distilled from the authorities referred to above:
1. A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.
2. It may also be set aside where its filing was procured by fraud or duress.
3. There is a jurisdiction to set such a notice aside to avoid substantial injustice.
4. None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.”
As referred to at the commencement of these reasons, the Applicant did not explain the circumstances in which she filed her Notice of Discontinuance, save as set out in her affidavit, which referred to “personal reasons”. She provided a further description in the oral evidence given by her this day.
The Minister submits that the circumstances of the Applicant fall far short of enlivening the Court’s power to set aside the Notice of Discontinuance by which the Applicant voluntarily compromised the application for judicial review.
The Court accepts the Applicant’s own evidence that she knowingly and voluntarily filed the Notice of Discontinuance. There is no evidence that there was an abuse of process affecting the Applicant or that any fraud was perpetrated on her. Even if the Applicant had some mistaken belief that she could discontinue proceedings to pursue another course, and then return to Court to reactivate her application, any discontinuance made in this circumstance still does not rise to an abuse of process or fraud.[7]
[7] COB16 & Ors v Minister for Immigration & Anor [2018] FCCA 152, 53.
It follows that it is the correct course to dismiss the application to set aside the Notice of Discontinuance.[8]
[8] Khadri v Minister for Immigrationand Border Protection [2014] FCA 91, 16.
The Applicant referred to authorities dealing with an extension of time. Such application for an extension of time pursuant to s.477(2) of the Act is an entirely different application from an application seeking to set aside a notice of discontinuance. The merits of the proposed substantive application are not relevant to whether the Court has power to set aside a notice of discontinuance.[9]
[9]CHD16 v Minister for Immigration & Anor [2017] FCCA 1679, 13.
Finally, the Applicant raised in her reply to the First Respondent’s submissions that the First Respondent had failed to file a Notice of Address for Service and a Defence. Firstly, this is not a relevant matter. Secondly, r.4.03 of the FCC Rules is as follows:-
“(1) A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:
(a) indicate consent to an order sought by the applicant;
(b) ask the Court to make another order;
(c) ask the Court to dismiss the application;
(d) seek orders in a matter other than the matter set out in the application;
(e) make a cross‑claim against the applicant, or another party.
(2) A response must precisely and briefly state any orders sought and (if the proceeding is a general federal law proceeding) the basis on which the orders are sought.
(3) A response must be filed and served within 28 days of service of the application to which it relates.”
The Applicant had filed her Notice of Discontinuance prior to the time in which following service the First Respondent was required to respond in any way.
The Court shall declare that the application is incompetent, but to the extent necessary, also order that the application to set aside the Notice of Discontinuance is dismissed. Costs shall follow.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 26 July 2018