EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3271
•1 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271
File number(s): SYG 2314 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 1 December 2020 Catchwords: PRACTICE AND PROCEDURE – Application to set aside a Notice of Discontinuance – complaint about the conduct of the applicant’s former solicitor investigated by the Legal Services Commission of NSW – complaint not substantiated – application dismissed. Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 15
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth) s 476
Cases cited: Chen v Monash University [2016] FCAFC 66
SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Number of paragraphs: 27 Date of hearing: 1 December 2020 Place: Sydney Counsel for the Applicant: Mr J Williams Solicitor for the Respondents: Ms A Zinn of Mills Oakley ORDERS
SYG 2314 of 2018 BETWEEN: EHR18
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:
1 DECEMBER 2020
THE COURT ORDERS THAT:
1.The Application in a Case as amended on 30 November 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 $6,700.
REASONS FOR JUDGMENT
(revised from transcript)
JUDGE DRIVER
By an amended Application in a Case filed on 30 November 2020, the applicant seeks orders from the Court setting aside a Notice of Discontinuance purportedly filed on his behalf by his former solicitor on 13 September 2019. The applicant had filed an Application in a Case seeking that relief on 1 November 2019 and he has supported that by two affidavits, the first filed on 1 November 2019 with his Application in a Case and the second more recently, on 3 September 2020. The matter, when it came before me on 13 December 2019, concerned whether there was some extraordinary circumstance justifying the intervention of the Court to set aside the Notice of Discontinuance.
The applicant provided me with a bundle of documents, which I marked for identification,[1] relevantly indicating that he had made a complaint against his former solicitor to the Office of the Legal Services Commissioner of New South Wales (OLSC). In view of that, I adjourned the hearing of the matter in order to await the outcome of that complaint. The applicant’s most recent affidavit discloses that the complaint has been terminated by the OLSC without any finding against the former solicitor.
[1] MFI A1
The Minister opposes the granting of the relief sought and relies upon two affidavits by the Minister’s solicitor.[2] All of the evidence was accepted without objection. This morning, counsel for the applicant provided a bundle of documents which helps to explain in more detail what has occurred before the OLSC.[3]
[2] Affidavits of Arielle Zinn made on 25 August 2020 and 30 November 2020
[3] Exhibit A2
The Minister’s submissions provide useful background information which I adopt.
On 9 December 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[4] That application was refused by a delegate of the Minister on 26 October 2017.[5]
[4] Court Book (CB) 41-85
[5] CB 128-150
On 31 October 2017, the matter was referred to the Immigration Assessment Authority (the Authority) for review[6] and, on 13 July 2018, the Authority affirmed the decision under review.[7]
[6] CB 151-160
[7] CB 194-212
On 21 August 2018, the applicant filed in this Court an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act). He was represented at that time by a solicitor.
On 12 September 2019, a Notice of Discontinuance was filed and accepted by the Court on 13 September 2019. An order for costs in favour of the Minister was made on 11 October 2019.
On 1 November 2019, the applicant filed the present Application in a Case.
On 13 December 2019, the Application in a Case was listed for hearing. The applicant informed the Court that he had made a complaint about his solicitor to the OLSC and tendered a letter from the OLSC dated 4 December 2019 confirming receipt of that complaint. The Application in a Case was adjourned to allow for the outcome of the OLSC complaint.
On 13 May 2020, the Application in a Case was listed for a directions hearing. The Court was informed that the OLSC complaint was unresolved and the Application in a Case was again adjourned.
On 15 May 2020, the solicitors for the Minister requested copies of all correspondence between the applicant and the OLSC. No response was received to that email.
On 28 August 2020, the Application in a Case was listed for a directions hearing. The Court was again informed that the OLSC complaint remained ongoing. The applicant was ordered to file and serve an affidavit detailing the progress of his complaint with the OLSC by 30 September 2020.
On 30 September 2020, the applicant filed an affidavit annexing a letter from the OLSC dated 21 May 2020, which essentially states that the file had been closed because the applicant had not provided a response to the OLSC by the requested deadline.
On 19 November 2020, the Application in a Case was listed for a directions hearing. Orders were made setting down the Application in a Case for hearing on 1 December 2020.
The Minister’s submissions also deal with the relevant principles to guide the Court’s consideration of the Application in a Case. I accept those submissions. Although the applicant seeks to rely on rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), in my view, that rule has no application in the absence of a judgment or order by the Court having some bearing. In the present case, no leave of the Court was required for the applicant to discontinue, and, at least on its face, that was a voluntary act by the applicant.
There is no provision in either the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act) or the Federal Circuit Court Rules which provides expressly for the reinstatement of a proceeding following a discontinuance,[8] but, in exceptional circumstances the Court has an implied power under s 15 of the Federal Circuit Court Act to do so in order to prevent an abuse of process of the Court or to protect the integrity of those processes, or where the notice of discontinuance has been procured by fraud or duress.[9] The Court does not have an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”.[10] The power to reinstate is discretionary so that, when enlivened, the prospects of success of the proposed application should be taken into account in its final exercise.[11]
[8] SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 at [17]
[9] SZFOZ; Chen v Monash University [2016] FCAFC 66 at [41]
[10] Chen v Monash University at [42]
[11] Ibid at [48]
Although the Application in a Case as amended on 30 November 2020 seeks various forms of relief, the critical paragraph is the first, which seeks an order setting aside the Notice of Discontinuance. Leaving aside rule 16.05, I accept that the Court can intervene in order to set the Notice aside. The question is whether it should do so. I awaited the outcome of the complaint to the OLSC given the likelihood that it would have a significant bearing on that consideration. The other relief sought on behalf of the applicant falls away if the Notice of Discontinuance is not set aside.
On the information now available, it appears to be common ground that the applicant’s case at its highest rests upon an asserted misunderstanding. The applicant asserts that he wished to terminate the services of his former solicitor and that his former solicitor acted without instructions in filing the Notice of Discontinuance.
Exhibit A2 throws some more light on what has occurred. It is apparent that the cost of the proceedings in this Court was an issue for the applicant. Apart from the issue of the discontinuance, the applicant’s complaint to the OLSC also extended to issues concerning fees. The applicant has provided his own complaint to the OLSC and the final letter from the Commissioner terminating the investigation. Exhibit A2 provides, critically, the former solicitor’s response to the complaint and correspondence from the OLSC dealing with the substance of the complaint.
The letter from the former solicitor dated 7 April 2020 appears to comprise five pages, but initially only three pages were provided by the applicant to his counsel. Upon enquiry, the applicant was able to provide a fourth page; however, the third page was missing. That is, in my view, significant. Exhibit A2 contains a letter from the OLSC dated 7 April 2020 to the applicant, explaining the former solicitor’s response. Included in that response is the following:
[The solicitor] submits that he advised you that if you discontinued your proceedings, your Bridging Visa would expire in 28 days and you would be contacted by the Department of Immigration and requested to leave Australia. [The solicitor] states that he also advised you that there was no agreement between the Australian Government and Iran to accept failed asylum seekers involuntarily and it was unlikely that the Australian Government could remove you to Iran involuntarily. [The solicitor] submits that you then provided him with instructions to withdraw the matter and stated words to the effect of “Forget about it. I don’t want to continue my Court matter.”
On the basis of the material available, it appears that you were aware of a Barrister being briefed in your matter, informed about the fees of [the solicitor] and the Barrister, and that you provided instructions to withdraw your matter. It appears that [the solicitor] has addressed the conduct allegations you make and I propose to recommend to the Commissioner that this aspect of your complaint is closed.
What is troubling is that that statement by the OLSC referring to the submission of the solicitor does not appear to be drawn from that part of his submission to the OLSC which the applicant provided to his counsel. Rather, it appears to come from the missing page. That is troubling. I draw an inference that the missing page would not have assisted the applicant if it had been provided.
On the basis of the information now available, it is tolerably clear that the applicant and his former solicitor had a lengthy conference about his case conducted in the Farsi language. The applicant may have been frustrated over issues of cost or otherwise and he may have acted precipitately in instructing his former solicitor to discontinue his case. For his part, the solicitor records that he expressed some surprise and was careful to obtain those instructions in writing. A handwritten record of those instructions is in evidence. It is also apparent that the applicant was aware of the notice of discontinuance before it was filed.
It is more likely than not that the applicant was aware of the consequences of the filing of the Notice of Discontinuance. He may have thought better of it afterwards, but his complaint against his former solicitor has not been substantiated and no extraordinary circumstance has been established justifying the intervention of the Court to set aside the Notice of Discontinuance.
Counsel for the applicant has made extensive submissions on legal issues that might have been addressed had the Notice of Discontinuance been set aside. It is unnecessary to dwell on those legal issues. Some of the issues have been addressed in other proceedings, and there will, no doubt, be other occasions to consider the legal issues in other proceedings. In this case, the application was properly discontinued on instructions and the Notice of Discontinuance should not be set aside.
I will order that The Application in a Case as amended on 30 November 2020 is dismissed.
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 $6,700.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 4 December 2020
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