EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1012
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012
File number(s): SYG 2971 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 12 May 2021 Catchwords: MIGRATION – Dismissal of Application in a Case – leave to amend and adjournment of hearing sought – numerous reasons to dismiss the Application in a Case but hearing adjourned for another reason. Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 73
Judiciary Act 1903 (Cth), s 78B
Migration Act 1958 (Cth), s 5, 5AA
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: AKJ18 v Minister for Immigration & Anor [2020] FCCA 3
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26
EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879
EIB19 v Minister for Immigration & Anor (No 5) [2020] FCCA 1189
EXL19 v Minister for Immigration & Anor [2020] FCCA 1255
FFZ18 v Minister for Immigration & Anor [2020] FCCA 1
GGD18 v Minister for Home Affairs & Anor (No 3) [2019] FCCA 444
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Number of paragraphs: 23 Date of hearing: 12 May 2021 Place: Sydney Counsel for the Applicant: Mr J Williams Counsel for the Respondents: Mr H P T Bevan Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 2971 of 2017 BETWEEN: EGZ17
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:
12 MAY 2021
INTERLOCUTORY ORDERS:
1.The Application in a Case is dismissed.
2.Leave for the applicant to rely upon the proposed amended application filed on 3 May 2021 is refused.
3.The Statement of Claim filed on 3 May 2021 is struck out.
4.Costs of the Application in a Case are reserved.
5.The Court notes that, in addition to the ground in the application filed on 26 September 2017, the Court wishes to receive written submissions from the parties on the question of whether it was unreasonable for the Authority not to interview the applicant, given the stark differences in approach taken by the Authority, compared to that of the delegate.
6.The first respondent is to file and serve on the applicant written submissions by 21 May 2021.
7.The applicant is to file and serve on the respondents written submissions by 11 June 2021.
8.The first respondent is to file and serve on the applicant any written submissions in reply by 18 June 2021.
9.The matter is listed for hearing at 2.15pm on 2 September 2021.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
I have before me an apparently lodged but not yet filed Application in a Case seeking the vacation of today’s hearing and other relief related to a proposed amended application. The proposed amended application was filed on 3 May 2021. Leave is required because on 23 October 2017, a registrar made procedural orders in the case requiring the applicant to file and serve any amended application by 18 December 2017. Obviously, that time has passed. The matter has a long procedural history.
The matter was initially docketed to Judge Barnes but was transferred to my docket by her Honour in March 2019. More recently, the hearing has been adjourned until today, in part at least, due to the personal situation of counsel for the applicant. The application in its original form, which was listed to be heard today, is a relatively confined challenge to a decision of the Immigration Assessment Authority (Authority). The proposed amended application would mount a much broader attack on a range of issues broadly encompassing the government’s policy and administration in relation to unauthorised maritime arrivals (UMA).
As put in oral submissions today, there would be a challenge to the interception and interdiction of UMAs at sea, the turnback policy of the government, the Pacific Solution involving detention in an offshore processing country, mandatory and indefinite detention and possibly other issues. The proposed amended application is related to a statement of claim filed on the same day which pursues the same issues but in tort. The applicant also seeks the opportunity to issue a subpoena to obtain further evidence in support of the proposed amended application. The applicant also filed a purported notice under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).
Counsel for the applicant provided written contentions of fact and law on 3 May 2021 which would have been deployed in the event that leave was granted for the proposed amended application. For the purposes of considering the Application in a Case, I received an apparently lodged but as yet unfiled affidavit by the applicant, as well as an affidavit by Paige Elise Durham made on 10 May 2021 and the annexures to it. I heard oral submissions from counsel for the applicant and the Minister this afternoon.
Having heard those submissions, I have come to the view that leave to rely upon the proposed amended application should be refused and that the Application in a Case should be dismissed. It would necessarily follow from that that the proposed subpoena would not issue, the statement of claim filed on 3 May 2021 would be otiose and the Notice of a Constitutional Issue also filed on 3 May 2021 would also serve no purpose and be inoperative.
The reasons why leave is refused and the Application in the Case is dismissed are first, that the proposed amendments were made very late. I appreciate that much litigation has been disrupted by the COVID-19 pandemic and counsel for the applicant has also had to address other personal issues. I have taken those into account in fixing what was to be today’s hearing date. Perhaps more importantly, the nature of the litigation the subject of leave would, if granted be transformed. That would not be an obstacle in itself if the material currently available lent some support to the proposed amended application.
However, on my admittedly limited examination of the material annexed to Ms Durham’s affidavit today, it does not support the Application in a Case. At page 44 is annexed a SIEV[1] report in relation to a vessel on which the applicant journeyed towards Australia. The applicant contends that this shows that he was intercepted in Indonesian waters. I do not draw that conclusion. The applicant was on a boat carrying 147 persons that was initially detected some 130 nautical miles north-west of Christmas Island. It was then monitored and was intercepted at 2.25 Australian Eastern Daylight Summer Time on 31 March 2013 when the vessel was 108 nautical miles north-west of Christmas Island. The report records that the people on board indicated that they had no food or water and advised they could not get the vessel underway again and requested to be taken on board HMAS Melville. The decision was then taken to embark the people to Christmas Island for reasons of safety.
[1] Suspected Irregular Entry Vessel
Counsel for the applicant also placed emphasis on a notice of detention made by one of the Minister’s officers, Louise Richardson, on 8 April 2013. Ms Richardson states that on the applicant’s arrival at Christmas Island on 31 March 2013, based upon the available information, she reasonably suspected him to be an unlawful non-citizen and therefore detained him. I see no particular significance in the fact that the notification is signed on 8 April. The statement in it, indicates on its face, that the necessary subjective view was formed when the applicant set foot on Christmas Island.
There may be circumstances in which the issues sought to be addressed in the proposed amended application could be more appropriately advanced. This is, in my view, not that case. Arguments are raised, for example, about indefinite detention. Arguments are also raised about the so called no advantage principle bearing on the length of detention. Counsel for the applicant put the proposition that the applicant had been in detention for seven years. However, the information Ms Durham’s affidavit indicates that the applicant was released from detention on 11 June 2013 when he was granted a bridging visa and that he has been at liberty in the community since then.
Counsel for the applicant pressed the view that, notwithstanding the granting of a bridging visa, the liberty of the applicant was still constrained. While one may argue at the margins of that issue, there is a world of difference between being in detention and living in the community on a bridging visa. Although the Court has jurisdiction to grant a writ of habeas corpus, it is not open to the Court to find that there is any unlawful current detention in this case and hence habeas corpus would not be available.
With these considerations in mind, I confirm that the decision I have reached is to refuse leave for the applicant to rely upon the proposed amended application and to dismiss the Application in a Case. In forming these views, I have had regard to the Minister’s written submissions on the Application in the Case and agree with and adopt the relevant parts as follows.
The original application contained one ground of review with three aspects. This is maintained in the proposed amended application, although it is renumbered as Ground 8. The Minister contended that there is no reason why the final hearing on that ground should not proceed, as most recently scheduled. The final hearing has previously been adjourned at the applicant’s request.[2] The current hearing has been set down since 27 October 2020.[3] The parties have filed written outlines of submissions on that ground. In the Minister’s submission, there is no reason why the hearing on that ground should not proceed.
[2] Affidavit of Ms Durham at [8]-[9]
[3] Affidavit of Ms Durham at [9]
This proceeding was commenced on 22 September 2017 with the Minister’s response filed on 20 October 2017.[4] Orders for the conduct of the proceeding were made by consent on 23 October 2017.[5] The applicant did not file or serve any amended application or any additional evidence in compliance with Orders 2 and 3 of those orders.[6] Moreover, there was no notice of the nature or extent of the proposed amendments before those documents were served for the first time on 30 April 2021.[7] It is significant that even this occurred after there were proposed consent orders signed by the parties extending time for the filing and service of submissions on the existing ground.[8] In the three years and almost nine months since this proceeding has been on foot, the applicant has had ample opportunity to take advice and to advance his claims. This is especially so where the applicant failed to comply with the Court’s orders of 23 October 2017 to file any amended application. There is a public interest in the finality of litigation.[9]
[4] Affidavit of Ms Durham at [4]-[5]
[5] Affidavit of Ms Durham at [6]
[6] Affidavit of Ms Durham at [7]
[7] Affidavit of Ms Durham at [11]-[12]
[8] Affidavit of Ms Durham at [10]
[9] Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 per McHugh J (an extension of time application)
The applicant’s affidavit in support of the Application in a Case puts forward only one explanation, namely “… I am suffering financial hardship and could not afford the filing fees”.
Where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. A party will need to show that the application is brought in good faith but they will also need to bring the circumstances giving rise to the amendment to the Court’s attention so that they may be weighed against the effects of any delay and the objectives of the Federal Circuit Court Rules.[10]
[10] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [102]-[103]; see also ss 3 and 73 of the Federal Circuit Court of Australia Act 1999 (Cth) and Federal Circuit Court Rules 2001 (Cth), rules 1.03, 7.01 and 7.03
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.[11]
[11] See Aon Risk Services v ANU at [111]
The explanation is inadequate:
(a)first, it does not address in any way the extensive time period that needs to be explained;
(b)secondly, it does not explain at all the circumstances giving rise to the amendment. This is especially so where the applicant has always had access to legal representation, as counsel for the applicant has always represented him in this proceeding (see the s 486I certificate in the original application signed by counsel). The importance of requiring an adequate explanation on issues of substance is reinforced when regard is had to the nature of the proposed amendments. As in EXL19 v Minister for Immigration & Anor[12] at [30], the applicant is seeking:
… considerably [to] widen the attack on his initial detention, by alleging false imprisonment and/or breaches of international and domestic law in the Commonwealth’s current policies, in relation to actions by authorities, in relation to attempts to enter the Australian migration zone, via sea.
The nature of the proposed amendments calls for a proper explanation. None has been given.
(c)thirdly, the assertion of present impecuniosity is unsupported by any documentary evidence. Further, and in any event, there is no evidence of any steps that the applicant could have taken or indeed took to try and file the amended application within time, including making an application to the registry for a fee waiver or asking his representative to prepare and file the amended application only. Even assuming the assertion of impecuniosity in the applicant’s favour, financial constraints are not necessarily an acceptable explanation for the delay in filing an amended application.[13]
[12] [2020] FCCA 1255
[13] See, eg, in the context of delay in filing a notice of appeal, QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [9] per Tamberlin, Kiefel and Weinberg JJ
To the inadequacy of the explanation and the delay in making the application are added other considerations including this Court’s case management principles as they apply in the migration list, the public interest in the finality of litigation and the use of the public resources of the Court for all other litigants.
The Federal Circuit Court Rules pick up relevant parts of the Federal Court Rules 2011 (Cth) (Federal Court Rules).[14] The proposed amended statement of claim does not comply. It is unnecessarily prolix and thereby fails to state the material facts as briefly as the nature of the case permits such that, in that form, it will cause prejudice in the form of increased costs if the Minister were required to plead to it. For that reason alone it should be struck out.
[14] see Schedule 3, Part 2, item 8 of the Federal Circuit Court Rules; rule 16.02(1)(a), (b) and (d) of the Federal Court Rules
In any event, the proposed amendments have no factual substance and no reasonable prospect of success:
(a)the applicant was detained at Christmas Island on 31 March 2013 which is an “excised offshore place” under s 5(1) of the Migration Act 1958 (Cth) and he was an “unauthorised maritime arrival” under s 5AA(1)(a)(i);[15]
(b)the applicant was held in immigration detention at Christmas Island from 31 March 2013 to 27 April 2013 and then at Wickham Point in Darwin from 27 April 2013 to 11 June 2013 from which he was released after he was granted a bridging visa.[16] He has been at liberty in the community since then. As noted above, a writ of habeas corpus does not lie in this case;[17]
(c)the claims for damages for false imprisonment are statute-barred;[18] and
(d)to the extent other claims are advanced, they have no reasonable prospects of success for the applicably same reasons as given in EHZ18 at [66]-[99].
[15] see GGD18 v Minister for Home Affairs & Anor (No 3) [2019] FCCA 444 at [38] per Judge Street, FFZ18 v Minister for Immigration & Anor [2020] FCCA 1 at [29]-[34] per Judge Driver (and see also CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26 at [17]-[19] per Judge Driver; AKJ18 v Minister for Immigration & Anor [2020] FCCA 3 at [15] per Judge Driver; EIB19 v Minister for Immigration & Anor (No 5) [2020] FCCA 1189 at [25]-[44] per Judge Street; EXL19 at [44] per Judge Humphreys)
[16] See Affidavit of Ms Durham at at [21]-[22]
[17] see EXL19 at [45] and EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879 at [26]-[29] per Judge Riley
[18] see EHZ18 at [30]-[51] per Judge Riley
There is no legitimate forensic purpose for the issue of a subpoena, a fortiori in the absence of amendment.[19]
[19] see EHZ18 at [103]-[104]
Irrespective of amendment, no matter arises under the Constitution within the meaning of s 78B(1) of the Judiciary Act. The s 78B notice filed by the applicant, purportedly under rule10.06 of the Federal Circuit Court Rules, does not arise and, moreover, does not properly state the nature of the matter or the facts showing that the matter is one to which s 78B applies. In short, there is no matter arising under the Constitution and none is identified. In any event, by s 78B(2)(c), the Court may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution. The existing ground of review is therefore severable and, as submitted by the Minister, the hearing should proceed on that ground.
I have nevertheless decided to adjourn the hearing in order for the parties to address an issue in relation to the review that I raised. That is reflected in the orders.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 21 May 2021
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