Ejn20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 310
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 310
File number(s): PEG 290 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 28 April 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Pakistan – Subclass 866 Protection visa – request to discontinue proceedings
PRACTICE AND PROCEDURE – request to discontinue proceedings – requirements of overarching civil practice and procedure provisions – whether to grant leave to discontinue proceedings
Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.01
Cases cited: Ji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 238
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 28 April 2022 Place: Perth Applicant: In person via CISCO Webex Counsel for the First Respondent: Ms G Ellis via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 290 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJN20
Applicant
AND: MINISTER FOR IMMIGRATON, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The oral application for leave to discontinue the originating application be dismissed.
2.Costs to be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised)JUDGE LUCEV
Before the Court today is an oral application for leave to discontinue an originating application. The request for leave to discontinue relates to an application filed by the Applicant, EJN20, in the Perth Registry of this Court on 6 October 2020 (“Judicial Review Application”) under s 476 of the Migration Act1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision”) handed down on 7 September 2020. The Tribunal Decision affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), on 30 May 2017 to refuse to grant EJN20 a Class XA Subclass 866 Protection visa (“Protection visa”).
The Judicial Review Application was heard by the Court on 13 August 2021 at which time judgment was reserved (“Reserved Judgment”). EJN20 appeared at that hearing on his own behalf, and did not require the services of an interpreter.
On 20 April 2022 EJN20 emailed the Perth Registry indicating that he had “decided to withdraw my case”. In a response on the same day from the Perth Registry EJN20 was advised that “if your intention is to withdraw your case complete a notice of discontinuance with information and the form found here”, setting out a web address enabling access to a notice of discontinuance form, and indicating that “[o]nce completed it can be returned to this email address”. Later on the same day EJN20 forwarded to the Perth Registry a completed Notice of Discontinuance.
The Notice of Discontinuance indicates that EJN20 seeks to discontinue in respect of all orders that he sought been made in the Judicial Review Application.
Later still on 20 April 2022 the Notice of Discontinuance having been brought to the attention of the presiding Judge, an email was forwarded to the parties indicating that, the Notice of Discontinuance would be the subject of a directions hearing today. In that regard the Court notes that r 13.01(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) requires leave of the Court or a Registrar for the filing of a Notice of Discontinuance at any time after 14 days before a final hearing. Final hearing in this matter was of course on 13 August 2021.
EJN20 subsequently forwarded to the Court an affidavit, which will be treated as having been filed in Court today, and upon which the Minister did not seek to cross-examine, which is in the following terms:
1.I arrived in Australia on 21st April 2015 having subclass 573 visa.
2.I applied for protection visa in July 2015.
3.Administrative Appeal Tribunal (AA T) hand over their decision on 11th of September 2020
4.I appealed in the Federal Circuit Court (FCC) on 16th of September 2020.
5.I did a follow up email on the 18th of January 2022 but was advised that my query will be discussed with chamber.
6.Considerable amount of time has passed, since lodgement of protection application, recently it has taken a toll on my mental health.
7.Since my AA T interview and till now, the first thing I do in the morning, even if I am half asleep, is to check my inbox for an email from the AAT and now the Federal court. I have been on the same routine from the last three years. I've been having sleepless/disturbed nights, which has significantly disrupted my daily life. Futhermore, this condition has reached to the level where I would be frustrated and unable concentrate on work and had to resigned. Now I have been jobless from the last three weeks.
8.I am 33 years old, with no end in sight with regards to my appeal at FCC.
9.Most recently I have submitted my withdrawal application on 20th of April 2022.
10.The court did not approve withdrawal application, instead I was advised of direction hearing.
11.I have been a law-abiding subject since I have landed in Australia on a valid visa.
12.As my life is at stake both in my receiving country, Pakistan, where I am at risk of persecution and in Australia where I see no end to my legal quagmire not to mention other mundane challenges of life. Which is due to the fact of my irregular migration status.
13.My decision of discontinuance is not my wilful decision but rather emotional, considering all the odds and my mental health, I have become extremely hopeless about my life & future, and I don't know what's down the road.
14.I would like to request the honourable court to issue me with a verdict in my case which can save me from the adverse effects on my mental health. And to relieve me from the stress and anxiety I am been going through about my life.
At the directions hearing EJN20 made submissions in not dissimilar terms to his affidavit, and in response to an indication from the Court that the reserved judgment was likely to be listed for delivery within the next 7 to 14 days indicated that knowing that there was a sense date would alleviate some of his immediate concerns.
As indicated above the Court did indicate to the parties at hearing that the Reserved Judgment was likely to be listed for delivery within the next 7 to 14 days.
The Court has considered all the relevant circumstances as set out above, and observes as follows:
(a)in order to be granted an indulgence, such as an adjournment, extension of time or discontinuance, by the Court on medical grounds there ought to be proper medical evidence put before the Court: NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [83]-[89] per Judge Lucev (and cases there cited), and whilst the period of time taken up with dealing with this matter from the making of the original Protection Visa application in 2015: see Court Book 31-81, until now has no doubt caused EJN20 concern and distress, there is no medical evidence before the Court which would indicate that a mere discontinuance of the Judicial Review Application would have a positive effect on EJN20’s mental health;
(b)there is no evidence of any other form of advice, such as legal advice, which would provide an objective, rather than emotional, basis for the grant of leave to discontinue: cf Ji vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 238 at [10] per Judge Lucev;
(c)it is not the role of this Court to deliver a “verdict … which can save … [EJN20] from the adverse affects on … [his] mental health” or “relieve … [EJN20] from the stress and anxiety … [he is] going through about my life”: EJN20’s Affidavit at [14], but rather to determine whether the Tribunal Decision is affected by jurisdictional error; and
(d)the Reserved Judgment is likely to be delivered by 13 May 2022 (which would have been the case in any event), and the delivery of the Reserved Judgment is more likely to bring some form of closure to the issues concerning EJN20’s Protection Visa status than a mere discontinuance of the Judicial Review Application.
In the above circumstances the Court does not consider it appropriate to grant leave to discontinue the Judicial Review Application, and the oral application for such leave will be dismissed by order of the Court.
The costs of today will be reserved.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 April 2022
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