Eqf18 v Minister for Home Affairs - [2019] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQF18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1077

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant a Protection visa – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – however applicant had given evidence to the Administrative Appeals Tribunal that he did not need protection in Australia and did not fear harm in Malaysia and had applied for a Protection visa purely so that he could work in Australia but wanted to maintain residence in Australia until the end of January 2019 to finish a contract he had with Optus – Application in a Case by Minister for Home Affairs to have the applicant’s Application summarily dismissed – no reasonable prospect for applicant to successfully prosecute the proceeding – application for judicial review summarily dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

AWA15 v Minister for Immigration [2018] FCA 604

Spencer v The Commonwealth of Australia (2010) 241 CLR 118

Applicant:

EQF18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2509 of 2018

Judgment of:

Judge Dowdy

Hearing date:

12 April 2019

Delivered at:

Sydney

Delivered on:

12 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms S. Roberts

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 7 September 2018 is dismissed pursuant to s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs of the proceeding in the sum of $4,350.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2018

EQF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

I am considering an Application in a Case filed by the Minister on 13 March 2019 seeking to strike out the Application filed in this Court by the Applicant on 7 September 2018 on the basis that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.
The Applicant is a male citizen of Malaysia aged 44 years, having been born on 8 January 1975.
By the Application filed in this Court he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, then the Minister for Immigration and Border Protection (Minister), dated 23 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa)

Background

The Applicant arrived in Australia on 20 September 2016 on a Visitor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1077
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Dowdy J considered an application by the Minister for Home Affairs to summarily dismiss a proceeding brought by Eqf18. The dispute concerned Eqf18's attempt to set aside a decision of the Tribunal.

The court was required to determine whether Eqf18 had any reasonable prospect of successfully prosecuting the proceeding, within the meaning of section 17A(2)(b) of the Act and rule 13.10(a) of the Rules. This involved assessing whether there was a "real question to be tried" and whether Eqf18 could possibly succeed in establishing jurisdictional error.

Dowdy J applied the principles established in cases such as *Agar v Hyde* and *Spencer v The Commonwealth of Australia*, which emphasize that powers of summary dismissal should be exercised with caution and only when there is a high degree of certainty about the ultimate outcome. The court noted that a proceeding need not be hopeless or bound to fail to have no reasonable prospect of success. In this instance, Dowdy J concluded that there was no real question to be tried, as the Applicant's own evidence to the Tribunal indicated an intention to leave Australia and no fear of harm in Malaysia, thereby precluding a successful claim for jurisdictional error.

Consequently, Dowdy J ordered that the proceeding be summarily dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 17A of the Act provides relevantly as follows:17A Summary judgment...(2) The Federal Circuit Court of Australia 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 Court of Australia has apart from this section. Rule 13.10 of the Rules provides as follows:13.10The 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. I am conscious that any power of summary dismissal should be exercised with caution. In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at 575-576 [57]:[57]Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. To similar effect French CJ and Gummow J said in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at 131 [24]:[24]The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.” Thus, when exercising the power to summarily dismiss a Court is enjoined by authority to exercise caution. However, I have come to the clear view that this is an appropriate case to exercise the power of the Court to summarily dismiss the proceeding. In my view, there is no real question to be tried in this case and, having regard to the evidence which the Applicant gave to the Tribunal, he cannot possibly succeed in setting aside the decision of the Tribunal for jurisdictional error. The decision of the Tribunal is very largely based on the Applicant’s own evidence that it was his intention to leave Australia at least by the end of January of this year and that he did not face any harm back in Malaysia.

Ratio Decidendi

Legal Principle Established

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