Epo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 741
•16 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 741
File number(s): SYG 3423 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 April 2021 Catchwords: MIGRATION – Immigration Assessment Authority – application to reinstate – whether leave should be granted to rely upon further amended grounds of judicial review – whether the Authority fell into jurisdictional error in neglecting to consider new information – no jurisdictional error is made out – the application to reinstate the matter is dismissed. Legislation: Migration Act 1958 (Cth), s 473DD
Federal Circuit Court Rules 2001 (Cth), r 16.05
Cases cited: FSB18 v Minister for Home Affairs [2019] FCAFC 196
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Commonwealth of Australia & Anor: Ex parte Marks [2000] HCA 67
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 49 Date of last submission/s: 6 April 2021 Date of hearing: 6 April 2021 Place: Parramatta Counsel for the Applicant: Ms Okereke-Fisher Solicitor for the Respondents: Mr Taylor appeared on behalf of the First Respondent. ORDERS
SYG 3423 of 2018 BETWEEN: EPO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.Leave to leave to rely upon the further Amended grounds of judicial review is refused.
2.The application to reinstate the matter is dismissed.
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $2,300.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Iraq. The applicant first arrived in Australia on 26 November 2012 as an unauthorised maritime arrival. On 20 June 2016, following an invitation from the Minister, the applicant applied for a protection visa.
On 8 May 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 8 November 2018, the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority’s decision in this Court. The applicant was initially represented by a Mr Brenton Halligan, Solicitor of Legal Migration Services. The matter was listed for a call over before a Registrar of this Court on 18 February 2020.
On 4 December 2019, Mr Halligan filed a Notice of Intention to Withdraw from the matter. On 18 December 2019, Mr Halligan filed a Notice of Withdrawal from the matter and formally ceased acting for the applicant.
On 17 February 2020, the solicitors for the first respondent sent an email to the applicant at his given email address reminding him that the matter was listed for call over the following day and advising “If there is no appearance by you (or someone on your behalf) we advise that the matter may be dismissed for non-appearance and we will seek an order that you pay the Minister’s costs”.
On 18 February 2020, neither the applicant, nor a legal representative appeared before Registrar Cridland. On that day, Registrar Cridland made Orders dismissing the matter pursuant to r 13.03C(1)(c) of the Federal Circuit Rules 2001 (“The Rules”) on the basis that the applicant failed to appear. Orders were also made that the first respondents solicitors, Mills Oakley, were to provide the applicant with written notice of the Court’s Orders and the applicant’s rights pursuant to r 16.05(2)(a) of the Rules to seek a reinstatement of his application.
On 20 February 2020, the first respondent’s solicitors wrote to the applicant via normal post and via email, advising of the Courts Orders on 18 February, advising of the availability of the applicant to seek reinstatement pursuant to r 16.05(2)(a) of the Rules and enclosed a copy of the Court’s formal Orders.
No further activity took place in the matter until 17 February 2021, when an Amended Initiating Application was filed with the Court, listing the applicant’s solicitor as Mr Abu Siddque of Abu Legal. That Amended Application sought Orders quashing the Authority’s decision and listed the following as the grounds of the Application:
Ground one
The Authority fell into error by making factual assumptions and conclusions that were not supported by evidence and by failing to articulate the circumstances under which an undocumented person can be returned to the Receiving Country
Ground two
The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.
No particulars were provided with the grounds of the Application. The grounds consist of bare assertions without any supporting material. The new grounds have little resemblance, if any at all, to the grounds contained within the original application filed with the Court by Mr Halligan on 6 December 2018.
On 5 March 2021, an Application in a Case was filed by Mr Siddque seeking the following Orders:
1. The Court exercise its power pursuant to Federal Circuit Court Rule 7.01 to grant leave to the Applicant to amend the Application in accordance with the attached Amended Application.
2. The Court grant the interlocutory Order sought in respect of the said Application
3. Any other Order that this honourable Court deems appropriate.
4. Costs.
The application was signed by Mr Siddque on 17 February 2021. No explanation for the delay in the filing of the application has been provided to the Court. That application was accompanied by an Affidavit affirmed by the applicant before Mr Siddque on 14 December 2020. It includes the following statements verbatim:
On the 07 January 2020, I received an email from Mr Halligan and been advised that he is not in the Courts records and will not do further work until his fees are paid. Annexed hereto and marked as ‘Annexure A’ is the true copy of that email.
Between November 2018 and January 2020, I received legal advises and correspondence from Mr Halligan in relation to my Federal Circuit of Australia which resulted me to believe he is my legal representative. Annexed hereto and marked as ‘Annexure B’ are copies of the correspondence between me and his office.
At no point Mr Halligan has advised me that he is not representing me and/or has ceased to represent me before the Federal Circuit Court of Australia. I therefore request the honourable court reinstitute my application.
The material quoted above in the Affidavit of the applicant is the first reference that the applicant was seeking a reinstatement of his matter by the Court.
It was not until 26 March 2021 that Mr Siddque filed, as required, a Notice of Address for Service, formally placing himself on the record as the solicitor for the applicant.
The matter was listed before me as an interlocutory application at 10:00 am on 6 April 2020, being the first Court sitting day after the Easter break. At 7:40 pm on 5 April 2021, being Easter Monday, the day before the matter was listed for hearing, the following documents were filed with the Court:
1. Affidavit of the applicant affirmed 5 April 2021. Annexed to that affidavit was some further correspondence between the applicant and Mr Halligan. Also annexed was an Amended Application and a Further Amended Application seeking orders to reinstate the application pursuant to rule 16.05 (2) and to amend the grounds of the application to two entirely new grounds set out in the Further Amended Application.
2. Submissions prepared by Counsel for the Applicant.
Of note is that the submissions of the applicant set out 3 grounds of the application, being the first two grounds in the Further Amended Application and a new ground three, not included in the Further Amended Application. That the Court, and the Respondent, were expected to deal with what was an entirely new case, in terms of the grounds of judicial review relied upon, is a matter of considerable concern. No proper explanation has been given to the Court as to what appears to be clear failures to prepare this matter in a timely fashion and/or notify the Court that new material would be relied upon. Both Counsel for the applicant and her instructing solicitor are experienced practitioners. The discourtesy shown to both the Court and the first respondent’s solicitors is a matter for concern.
The Court indicated that, should the solicitor for the first respondent seek an adjournment to consider the new grounds of the application, the Court was prepared to grant such an adjournment. Further, the Court would consider in such a case, if personal costs Orders reflecting costs thrown away by any adjournment should be made against Counsel for the applicant and her instructing solicitor.
Counsel for the first respondent indicated that, notwithstanding the late submission of the new grounds of the application, he was in a position to orally deal with all issues in the matter and no adjournment was necessary. The solicitor for the first respondent indicated, however, that he did object to the applicant relying upon the new grounds of judicial review contained within either the Further Amended Application and/or Counsel for the applicant’s written submissions.
In these circumstances, the Court considered it appropriate to consider whether leave should be granted to amend the application before the Court to include the reinstatement application and then consider the proposed new grounds as part of that consideration.
REINSTATEMENT APPLICATION
THE LAW
The relevant legal principles in relation to reinstatement applications are well settled: see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is a discretionary matter and involves consideration of three factors:
1. Whether there was a reasonable excuse for the parties’ absence when the proceeding was struck out.
2. The existence and nature of any prejudice that might flow to the other party and extent if any to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to order.
3. Whether the applicant has a reasonably arguable prospect of success on the substantive application. If not, there is no purpose in reinstating.
Any discretion must be exercised judicially and not be exercised in a way that is unreasonable, or subject to illogicality or irrationality. How the discretion is to be exercised is an evaluative exercise, it is not subject to fixed considerations, but should take account of all of the circumstances. The Court is required to consider whether or not it is in the interests of justice to reinstate the application by reference to factors that are considered significant: see FSB18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
This matter is somewhat more complicated in that it involves consideration of the issue of constitutional writs against a decision by a public official. There is significant public interest in the finality of administrative decisions. The relevant principles are referred to in Re Commonwealth of Australia & Anor: Ex parte Marks [2000] HCA 67 at [15]-[17]:
15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension7. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at [12], "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision9. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned (emphasis added).
THE REASON FOR THE NON-APPEARANCE BEFORE THE REGISTRAR, THE DELAY IN SEEKING REINSTATEMENT AND PREJUDICE TO THE FIRST RESPONDENT
In the applicant’s Affidavit of 14 December 2020, the applicant stated. at paragraph 5.“At no point did Mr Halligan advise me that he is not representing me and/or has ceased to represent me before the Federal Circuit Court of Australia”.
In the applicant’s Affidavit of 5 April 2021 the following appears at paragraph 4 “Prior to 18 February 2020 I was not aware that Mr Halligan had ceased to represent me as I did not receive a copy of Mr Halligan’s “intention to withdrawal as a lawyer’ nor has he advised me of the date of listing”.
The Court does not accept these statements. In an email from Mr Halligan to the applicant of 7 January 2020 attached to both affidavits, the following appears after some statements as to the need to provide funds to Mr Halligan “We require these fees to be paid by Monday 20th January 2020, we are not presently on the Court record and will do no further work until fees are paid”… “If fees are paid we will represent you at the next call over date on 18th January 2020”.
The Court notes the error in the date of the call over in that it was listed on 18 February 2020, not 18 January 2020. Be that as it may, the legal representative for the first respondent sent the applicant an email on 17 February 2020, the day before the call over, reminding him that his application was listed for call over the following day at 10:15 am and providing the location for the call over.
The Court, in these circumstances, is satisfied that the applicant was aware that Mr Halligan had ceased to act for him and that the matter was listed for call over the following day. That email specifically advised the applicant if he did not appear, the matter could be dismissed for non-appearance.
In his Affidavit of 5 April 2020, the applicant states:
Between 04 December 2019 to 18 February 2020, I did not receive any correspondence from the Minister’s Solicitor in relation to the application.
On or about March 2020, I was advised by the Office of Mr Halligan that my case has been dismissed and I have to pay additional fees to collect my documents from his office.
The Court has been provided with a copy of a letter dated 20 February 2020 sent both by post and email to the applicant from the legal representative for the first respondent, advising that the matter had been dismissed, attaching a copy of the Court’s Orders and setting out the right of the applicant to seek reinstatement. No reference is made to this correspondence by the applicant. The inference from the applicant’s Affidavit is that he was not aware of the dismissal of his matter until mid-March 2020. The Court does not accept this. The Court is satisfied that the applicant was made aware of that fact on 20 February 2020 upon receipt of the email from the solicitors for the first respondent.
The Court is satisfied that it can place little reliance on any claims made by the applicant as to the reasons for his non-appearance, or, when he became aware that his matter had been dismissed, unless those claims can be independently verified. Taking account of all the circumstances, the Court is not satisfied that the applicant has a valid reason for his non-appearance on 18 February 2020 at the call over. This issue weighs heavily against reinstatement.
The next consideration is the prejudice to the first respondent. The applicant, having been made aware on 20 February 2020 that his matter had been dismissed, did not formally seek a reinstatement of his matter until an Application in a Case was filed by Mr Siddque on 5 March 2021. The applicant states in his affidavit of 5 April that the reason he did not seek reinstatement was that “Between March 2020 to February 2021, I was unemployed due to COVID-19 and could not engage a solicitor to represent me in the Federal Circuit Court of Australia”.
While the Court takes this into consideration, the Court does not consider this to be a reasonable explanation for a 12 month delay in seeking reinstatement. The applicant could have accessed a multiplicity of legal organisations that provide free legal advice and assistance in migration matters. Further, the Court is well accustomed to having unrepresented applicants before the Court and will take account of the issues this poses.
The Court notes that it is not suggested that the first respondent would be particularly prejudiced if the matter were to be reinstated. The Court is not aware if costs Ordered when the matter was dismissed on 18 February 2020 have been paid. Any prejudice cannot be assuaged by a further costs Order.
Given the considerable delay, the Court considers this factor weighs heavily against reinstatement, particularly given the need for there to be finality in administrative decision making, as set out above.
THE PROSPECTS OF SUCCESS IF THE MATTER IS REINSTATED
The court has before it three different sets of grounds for judicial review. The first are contained in the original Initiating Application prepared by Mr Halligan and filed with the Court on 6 December 2018.
The second set are contained in the Amended Application filed by Mr Siddque on 17 February 2021 which are set out above. The Court notes that there are no particulars contained in relation to these grounds of judicial review. Being simply bland assertions, in the absence of particulars, they do not show jurisdictional error: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Counsel for the applicant specifically stated that they did not rely upon the first and second set of grounds and asked the Court to ignore them.
The third set of grounds are contained across the Affidavit of the applicant of 5 April 2021, which annexes a Further Amended Application containing 2 grounds, and the Written Submissions of Counsel for the Applicant, which contains a third ground. The failure to include the third ground appears to be a clerical error by Mr Siddque.
The legal representative for the first respondent, objects to leave being granted to rely upon these three grounds of judicial review, noting that they were filed with the Court late on the previous evening prior to the hearing. It was submitted the no adequate reason has been given as to why the Court should allow new grounds of judicial review, given that the new grounds had only been filed in February.
Given that if the Court exercises its discretion to reinstate the matter, and the matter were adjourned, it would be appropriate to allow any new grounds to be considered by the Court in a final hearing. In these circumstances, the Court proposes to consider the three grounds raised by the applicant.
The Court notes that, in considering the merits, it is not necessary that the applicant positively established the application will succeed at a final hearing: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102].
Rather, they should be examined in a reasonably impressionistic matter. All that is required is a consideration of what might be advanced in a final hearing. The Court is not require to undertake a full consideration of all the arguments.
Ground one contends that the Authority adopted an erroneous construction of s 473DD of the Migration Act 1958 (Cth) (“the Act”) in that it did not consider, as new information, a submission containing legal arguments on matters raised in the delegate’s decision. The Authority found that it was not new information and had regard to it in the assessment of the matter. The applicant contends that a previous decision of this Court in relation to a previous Authority decision was new information and should have been considered. Counsel for the first respondent submits that the material was considered as stated by the Authority and in any event is not “new information” for the purposes of the Act.
Ground two concerns the issue of where the applicant would return to if returned to Iraq. The delegate found that the applicant would return to Samawah, where he had previously resided. The Authority found the applicant would return to Nasiriyah, an area like Samawah also within the southern provinces in Iraq, where his parents and some of his other family had relocated following the applicant departing Iraq. The applicant contends that this is a relocation case which required the Authority to interview the applicant, pursuant to s 473DC(3) of the Act to ascertain if it was reasonably practicable for him to return to Nasiriyah. The first respondent contends that the Tribunal simply made a different finding to the delegate as to where the applicant would return to live within the southern provinces of Iraq and did not involve issues that required the applicant to be given an opportunity to comment on the finding that he would return to Nasiriyah.
Ground three contends that the Authority applied a test of “relative safety” instead of the “real chance test” in assessing if it was reasonable for the applicant to relocate. This involved an improper consideration of the risk in each area. The first respondent submitted that the Authority did apply the correct test and specifically noted, in paragraph 25 of its decision, that “being more secure or having a lower chance of harm in an area does not necessarily preclude there being a ‘real chance’ of harm”. Accordingly, no error arises.
The Court considers that the matter raised in the new grounds of Application, are, at best, arguable, as compared to reasonably arguable as regards to ground one and two, but that there is little prospect of success in ground three. The Court gives this some weight in the exercise of the discretion to reinstate.
The Court is not satisfied that there was any other matter that is relevant to the exercise of the discretion to reinstate the matter.
Given that the Court is not satisfied as to the reasons advanced by the applicant as to his failure to attend the call over on 18 February 2020, which resulted in the matter being dismissed, and the reasons for the very long delay in seeking reinstatement, the Court is not satisfied that the grounds raised in the application are of sufficient weight for a discretion to be exercised to reinstate the matter.
The Court has considered the matters raised on behalf of the applicant individually and cumulatively. The Court considers that it is not in the interests of the administration of justice to allow applicants to seek to reinstate matters where they had been dismissed and where there are significant periods of time between the initial dismissal and the application for reinstatement. The Court is cognizant of the need for there to be finality in administrative decision-making, and indeed, in litigation before the Courts. The Court is not satisfied, even if the grounds of judicial review advanced by the applicant met the test of being reasonably arguable, which the Court does not find on the limited material that has before it, that this alone would outweigh the other two considerations.
CONCLUSION
In these circumstances, it is appropriate for leave to rely upon the further amended grounds of judicial review be refused. In the application to reinstate, the matter is dismissed. Costs must follow as a result of these findings.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 April 2021
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