EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 864
Federal Circuit and Family Court of Australia
(DIVISION 2)
EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 864
File number(s): SYG 2241 of 2021 Judgment of: JUDGE LAING Date of judgment: 17 October 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision to refuse protection visa – application by Minister for summary dismissal – where applicant is offshore with no right of return and remittal is futile – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, 17.02,
Federal Court Rules 2011 (Cth) r 36.03
Migration Regulations 1994 (Cth) Schedule 2, cl 866.411
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
BHO17 v Minister for Immigration & Anor [2018] FCCA 2257
DTY18 v Minister for Home Affairs & Anor [2020] FCCA 3140
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 17 October 2022 Solicitor for the Applicant: The applicant appeared by telephone with the assistance of an interpreter Solicitor for the First Respondent: Mr A Wall, HWL Ebsworth Counsel for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 2241 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKW21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFARS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
17 OCTOBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’, dispensing with the need for filing any further document in this regard.
2.The application filed on 25 November 2021 be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent’s costs, fixed in the amount of $3,930.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 35.13 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptINTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
The Minister has made an application for summary dismissal, pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). This is on the basis that the application for judicial review is futile, as the applicant has left Australia without right of return.
For the following reasons, I accept that it would be appropriate to dismiss the application for judicial review.
BACKGROUND
The applicant applied for a protection visa on 30 January 2018.
On 13 September 2019, the Delegate refused the application.
On 17 September 2019, the applicant applied to the Tribunal for review of the Delegate’s decision.
The Tribunal affirmed the Delegate’s decision on 21 October 2021.
RELEVANT LEGISLATION AND PRINCIPLES
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides as follows:
143 Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.
Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.
Rule 13.13 of the Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether there is a real or genuine dispute as to any material fact(s) upon which the Court may reasonably find for the non-moving party: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41 at [6] and AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 (AJB19) at [33].
Whilst summary dismissal has been described as an “essential tool in the management of high-volume cases”, it has also been recognised that “the existence and utilisation of it does not obviate the need to afford procedural fairness to applicants, especially where they are unrepresented”: see AJB19 at [21].
PROCEEDINGS BEFORE THIS COURT
Pleaded grounds
The applicant commenced these proceedings by an application filed on 25 November 2021, relying upon the following under “Grounds of application”:
Formal Review of the Application.
As stated in first submission’s.
(OR) Taking the other action that subject of the proceeding.
The application did not identify any recognisable ground of judicial review that might enjoy reasonable prospects of success. Nor is the availability of any such ground(s) apparent on the face of the materials before the Court.
I accept that if further opportunity were given, and the matter proceeded to a full and final hearing, then there is some possibility that further ground(s) of review may be identified.
However, the Minister contends that this course would be futile in circumstances where the applicant is offshore with no right of return to Australia. For the reasons that follow, I accept this submission.
Background to the summary dismissal application and evidence
On 1 April 2022, the Minister filed an affidavit of Elizabeth Grace Bennett affirmed on 31 March 2022. That affidavit annexed screenshots from the Department’s Integrated Client Services Environment database (ICSE) and from the Department’s Client Search Portal (CSP). Those records indicated that:
(a)the applicant was offshore at the time that the affidavit was affirmed;
(b)the applicant departed Australia on 5 November 2021;
(c)the applicant’s Bridging B (WB-020) visa expired on 5 November 2021, the date that the applicant departed Australia; and
(d)the applicant held no other visa giving him any right of return to Australia.
On 6 April 2022, Registrar Carney made orders noting that a summary dismissal application had been made and would be listed on a date to be advised. The applicant was granted leave to file and serve submissions 14 days or more before the hearing. The first respondent was granted leave to file and serve submissions at least 7 days before the hearing.
On 12 September 2022, the parties were notified of the listing of the summary dismissal application for hearing.
On 7 October 2022, the Minister filed a response form stating (inter alia) the position that: “The application is futile as the Applicant is offshore with no right of return to Australia”.
No submissions were filed by the applicant pursuant to the leave granted on 6 April 2022. However, the Minister filed written submissions on 10 October 2022, setting out the basis for the summary dismissal application. On that date, the Minister also filed an affidavit affirmed by Alexander Thomas Wall. That affidavit annexed screenshots from the Department’s ICSE and CSP records confirming that the applicant had not been granted any further visa since Ms Bennett’s affidavit and had no right of return to Australia.
A Court Book setting out documents of more general relevance to the proceedings was filed by the Minister on 13 October 2022. Those documents have limited relevance, however, to the primary basis of the Minister’s summary dismissal application.
I accept the Minister’s submission, on the basis of the foregoing, that the applicant has been afforded procedural fairness in relation to the Minister’s application. He has had knowledge of that application since at least April 2022. He has been given the opportunity to file written submissions and to make oral submissions. He has had the benefit of the Minister’s written submissions filed on 10 October 2022. The more recent affidavit that was relied upon by the Minister largely confirms the position conveyed in Ms Bennett’s affidavit filed on 1 April 2022.
Basis of the summary dismissal application
Having regard to the evidence of Ms Bennett and Mr Wall, I accept that the applicant is offshore without any right of return to Australia. This was not disputed by the applicant at the hearing of the Minister’s summary dismissal application.
The Minister contended that the application for judicial review lacked reasonable prospects of success because, as the applicant was offshore without a right of return, he would no longer be capable of satisfying the criteria for the protection visa even if jurisdictional error were found and orders were made remitting the matter to the Tribunal. This is because a criterion for the grant of a protection visa is that the “applicant must be in Australia”: clause 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
I accept this. Futility on this basis has been found in a number of cases, including AJB19,DTY18 v Minister for Home Affairs & Anor [2020] FCCA 3140 and BHO17 v Minister for Immigration & Anor [2018] FCCA 2257 (BHO17). In BHO17, Judge Heffernan explained at [12]-[13] (footnotes omitted):
12.As the Minister submits, cl.866.411 of the Migration Regulations 1994 (Cth) stipulates that an applicant must be in Australia in order for a protection visa to be granted. Counsel for the Minister referred me to a number of authorities were are conveniently summarised in SZAOE v Minister for Immigration & Multicultural & Indigenous Affairs.[6] The Minister submits that as the applicant is outside this country and has no right to return, his application is moot and futile. This was the position taken by the Full Court in Tchoylak v Minister for Immigration & Multicultural Affairs[7] and again in Bolea v Minister for Immigration & Multicultural Affairs[8]. Both of those cases dealt with circumstances in which an applicant had been removed from the country by the Minister. In this matter, the applicant voluntarily left the country. It is submitted by the first respondent in effect that given the applicant is outside this jurisdiction, he has no right of return. Even if this application were to be successful, the Administrative Appeals Tribunal would have no other option but to affirm the decision of the delegate and that for that reason this Court should refuse to grant relief because to do otherwise would be futile.
13.I accept that submission. It is most unfortunate for the applicant that his present circumstances render these proceedings moot and futile. He made an impassioned request to the Court to consider his circumstances and those of his wife and his children, and assured the Court that in all the time that he had lived in Australia, he had been a good citizen. Those matters may well be true, but this Court does not have the power to grant the applicant a visa. I accept that this case is moot and it would be futile to issue constitutional writs.
The applicant in this case submitted that he had applied for visas since leaving Australia but that those applications had been refused. He submitted that he had been required to depart Australia because he had not applied to renew his bridging visa in time after receiving the Tribunal’s decision. The applicant stated that he had been confused and depressed at the time and had felt that he had not been given sufficient time to apply for a further visa before departing Australia. The applicant also raised that he had been impeded by restrictions associated with the pandemic and that this had limited his ability to be granted any further visa.
This may be so. However, it does not change the fact that the applicant is offshore without any right of return to Australia.
If the matter were remitted to the Tribunal, the Tribunal would have no option but to affirm the Delegate’s decision due to the applicant’s inability to meet cl 866.411. There is no reasonable prospect of the relief sought by the applicant being granted in these circumstances.
The applicant sought an opportunity to apply for another visa, with a view to returning to Australia and pursuing his judicial review application. However, the general potential for an applicant to apply for further visas has not been regarded as sufficient to avoid a finding of futility in other cases (see for eg AJB19 at [39]). There is nothing before me to indicate that the applicant would qualify for another visa. In these circumstances, I accept that there is no reasonable prospect of the relief sought by the applicant being granted.
CONCLUSION
For the foregoing reasons, I find that the application for judicial review filed on 25 November 2021 lacks reasonable prospects of success such that it should be dismissed pursuant to r 13.13(a) of the Rules.
The Minister seeks costs fixed in the amount of $3,930. The applicant did not seek to contest this amount. I am satisfied that the amount sought is appropriate, having regard to the work performed in this matter and the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the applicant.
1 I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 17 October 2022
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