JALLOH v Minister for Immigration
[2015] FCCA 1154
•29 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JALLOH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1154 |
| Catchwords: COSTS – Migration judicial review proceedings – where leave to file a notice of discontinuance at hearing. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02, 44.15(1) and (2) Migration Act 1958 (Cth), ss.474, 476, 477(2) Migration Regulations 1994 (Cth), regs.1.03, 1.15, Schedule 2, cll.835.212, 835.221 |
| Bunnagv Minister for Immigration & Anor (No.2) [2008] FMCA 430 Covell Matthews and Partners v French Wools Limited [1977] 2 All ER 591 Hunter Valley Developments v Cohen (1984) 3 FCR 344 Minister for Immigration & Citizenship vSZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 Kansra v Minister for Immigration & Anor [2014] FCCA 2726 Khadri v Minister for Immigration & Border Protection [2014] FCA 91 Minister for Immigration & Citizenship vSZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 MZZDN v Minister for Immigration [2015] FCCA 69 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Primary Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174 Quan v Minister for Immigration & Border Protection [2014] FCA 1239 SZFOZ v Minister for Immigration & Citizenship [2007] FCA 1137 Trade Practices Commission v APM Investments Pty Ltd (No. 2) (1983) 74 FLR 276 WZATB v Minister for Immigration(No.2) [2014] FCCA 2978 WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 WZATK v Minister for Immigration & Border Protection & Anor [2015] HCASL 41 WZATN v Minister for Immigration & Anor [2014] FCCA 861 |
| Applicant: | SULAIMAN JALLOH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 147 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 April 2015 |
| Date of Last Submission: | 29 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant have leave to file a notice of discontinuance, and that that notice of discontinuance be taken to have been filed in Court today.
The applicant pay the first respondent’s costs in the sum of $5800 by 30 June 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 147 of 2014
| SULAIMAN JALLOH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The applicant seeks leave to file a notice of discontinuance in these proceedings.
The applicant, by application filed on 3 June 2014, applied under s.476 of the Migration Act1958 (Cth) (“Migration Act”) for judicial review of a decision of the second respondent, the Migration Review Tribunal, made on 1 May 2014 in which the Tribunal affirmed a 31 October 2013 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the applicant an Other Family Residence (Class BU) visa (“Family Visa”).
It is unnecessary for present purposes to set out the background to the proceedings or the nature of the Tribunal decision. The Court notes that there are three grounds of review as follows:
1.The Migration Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant did not meet the criteria for a sub-class 835 visa.
2. The Migration Review Tribunal made an error of law and/or jurisdictional error in not making full and proper enquiries as to the applicant as adoptive father of his niece and nephew.
3.The Migration Review Tribunal made an error of law and/or jurisdictional error in not making full and property [sic] enquiries by allowing the applicant’s nephew to give evidence before the Tribunal as to the applicant’s appointment in his brother’s Will as guardian father to his niece and nephew.
The applicant has today sought leave to file a notice of discontinuance. The Minister consents to leave being granted to file a notice of discontinuance, subject to an order for costs. The Court notes that the Minister was not aware of the notice of discontinuance until, effectively, it would appear, the matter was before the Court.
The Court notes the terms of rr.13.01 and 13.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), dealing with discontinuance, and notes, in particular, the requirement for leave to be granted where proceedings are sought to be discontinued less than 14 days prior to the hearing, which is the case here. The Court also notes that part of r.13.02 of the FCC Rules, which suggests that a similar application might be filed in future and what might happen in terms of costs, with respect to such an application.
Generally speaking, a notice of discontinuance will be acceded to by a Court, although the Court’s discretion to grant leave is unfettered but not automatic: Primary Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174. Leave to file a notice of discontinuance would generally be acceded to where an applicant does not wish to proceed, it not being desirable that an applicant should be compelled to litigate against the applicant’s will, as was observed in Trade Practices Commission v APM Investments Pty Ltd (No. 2) (1983) 74 FLR 276, where Woodward J cited earlier observations in the United Kingdom in Covell Matthews and Partners v French Wools Limited [1977] 2 All ER 591. And a notice of discontinuance being filed in these circumstances would generally be acceded to where there is no injustice to a defendant.
The Court has explored with the applicant the reasons for his wishing to discontinue and notes that he has received advice from a lawyer which, as he told the Court, appears to be to the effect of “that he is not going to win” in relation to the substantive application, and he has therefore been advised to, and seemingly has, sought an alternative remedy for his situation by way of Ministerial intervention. The applicant indicated to the Court that a letter seeking ministerial intervention has recently been dispatched.
The Court also raised with the applicant the question of costs. Although that is not a matter which it would appear that he has previously been made aware of, it is generally the case that costs follow the event and, therefore, an unsuccessful or discontinuing party in litigation of this type pays the successful party’s costs: FCC Rules, r.44.15(1) and (2), and see generally Bunnagv Minister for Immigration & Anor (No.2) [2008] FMCA 430; WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 at [23] per Siopis J, from which the High Court refused to grant special leave: WZATK v Minister for Immigration & Border Protection & Anor [2015] HCASL 41.
In determining that there is no injustice to the respondents in the application, the Court notes that, firstly, there is no power to set aside a notice of discontinuance in this Court, except in limited circumstances whereby the notice of discontinuance might be conceived to be a nullity which requires the notice of discontinuance to have been induced by fraud, duress or a mistake without the knowledge of the applicant or something akin thereto. At an absolute minimum, it requires exceptional circumstances: see SZFOZ v Minister for Immigration & Citizenship [2007] FCA 1137 (“SZFOZ”), and the relevant passages from SZFOZ referred to in MZZDN v Minister for Immigration [2015] FCCA 69 at [44]-[47] per Judge Burchardt (“MZZDN”), and also the passages referred to in MZZDN at [48] from Khadri v Minister for Immigration & Border Protection [2014] FCA 91. It is fair to observe on what the Court has been told that there is no suggestion, in this case, of fraud or duress or of the applicant being unknowingly misled in this particular case.
Secondly, the Court refers to Kansra v Minister for Immigration & Anor [2014] FCCA 2726, in which the Court dismissed an application to reinstate a migration judicial review application where the applicant had knowingly and voluntarily filed a notice of discontinuance, albeit because of incorrect advice, but in circumstances where, as is indicated at [24] per Judge F Turner, there was no suggestion of fraud or duress or of the misleading of the applicant. In that case, this Court also found that:
a)the application should not be treated as an amended migration judicial review application such as to reinstate the original migration judicial review application; and
b)any new application would have to overcome the time limitation in s.477(2) of the Migration Act.
Given that the applicant is voluntarily seeking to file a notice of discontinuance, in the circumstances and for the reasons that the Court has outlined, the Court is satisfied that it would be very difficult for the applicant to succeed in an application for extension of time to file a further migration judicial review application in relation to his circumstances when regard is had to the relevant factors for consideration on an extension of time application as have been outlined by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344 and Quan v Minister for Immigration & Border Protection [2014] FCA 1239. In that regard, the Court also notes the merits of the substantive application with which it will deal in a moment. But it suffices to say that, on the extension of time application, the Court is satisfied that a court would find that the substantive application had no merit.
Thirdly, then, turning to that issue, the Court is satisfied that the substantive application has no merit. And the Court is so satisfied, having regard to the three grounds of review, for the following brief reasons.
Firstly, in relation to ground 1, the ground is non-specific and lacking in particulars and, therefore, cannot establish jurisdictional error in the Tribunal decision in the absence of particularisation: WZATN v Minister for Immigration & Anor [2014] FCCA 861; WZATB v Minister for Immigration(No.2) [2014] FCCA 2978 at [30] per Judge Lucev. In any event, for reasons which the Court will now come to, the Tribunal did not err in its consideration of whether the applicant met the requirements of cl.835.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”). In that regard, the Court notes the relevant legislative requirements, which include cll.835.212 and 835.221 of Schedule 2 to the Migration Regulations and regs.1.03 and 1.15 of the Migration Regulations, which can be taken to be incorporated in these Reasons for Judgment.
In relation to ground 2, it suffices to observe that the wording of the relevant legislation imposes a strict requirement for the grant of the Family Visa, in that the other person or Australian permanent resident must be a parent, brother, sister, stepbrother or stepsister of the applicant. The applicant’s ground which contends the Family Visa should have been granted on the basis that he is his niece or nephew’s “parent”, whether or not he can be considered to be their parent or, alternatively, that they are his children, misconceives the proper meaning of the legislation. The legislation does not permit the grant of the Family Visa on the basis that the applicant is the “parent” of his nieces or nephews, but rather the applicant is only considered to be a remaining relative for the purposes of reg.1.15 of the Migration Regulations if his niece or nephew are the applicant’s parent, brother, sister, stepbrother or stepsister, which clearly they are not, nor were they claiming to be. Thus, whilst the Tribunal did consider the applicant’s submissions and was satisfied that the applicant’s claim that it was customary for him, as the surviving brother, to care for his deceased brother’s children, it is insufficient for the applicant to establish that he has customarily adopted the children. There was no error in the Tribunal’s finding that reg.1.15(a) of the Migration Regulations was not met.
The Court also notes that the Tribunal did not have a duty to make further inquiries in relation to the applicant’s clams as, even if it were established that the applicant was a “parent”, the Family Visa criteria would still not have been met. And it is unclear what obvious inquiry the Tribunal could have made in that regard: Minister for Immigration & Citizenship vSZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In relation to ground 3, it is unclear on the basis of both the hearing record and the hearing invitation, which is set out at Court Book 114 and 115, which nephew the applicant is referring to. But, in any event, it is immaterial, given that the test is as the Court has already outlined it. Furthermore, the Court notes that the Tribunal did not fail to consider the brother’s will, although it is not readily apparent that the Tribunal was provided with an actual copy of the will, but for the reasons already given in relation to the nature of the test under reg.1.15 of the Migration Regulations even if it had been provided, it would have been irrelevant for the Tribunal to consider it.
So in those circumstances, the Court would have been satisfied had the substantive application been pressed that there was no jurisdictional error in the Tribunal’s decision in the sense referred to in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225, and Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Therefore, the Tribunal decision is a privative clause decision under s.474 of the Migration Act, and it would have followed that the substantive application would have been dismissed. It also follows that costs would, therefore, have followed the event and the applicant would have been liable for the Minister’s costs, if the substantive application had been pressed. On that basis, the applicant would have been responsible for payment of the Minister’s costs. And in order to ensure that the Minister is not prejudiced by the Court granting leave to file a notice of discontinuance, and noting that the notice of discontinuance was effectively sprung upon the Minister at the last moment, it is appropriate, in all the circumstances, to order that the applicant pay the Minister’s costs in the sum of $5800 as sought.
For the above reasons, the Court is satisfied that leave ought to be granted to file a notice of discontinuance and the Court makes the following orders:
1.The applicant have leave to file a notice of discontinuance, and that that notice of discontinuance be taken to have been filed in Court today.
2. The applicant pay the first respondent’s costs in the sum of $5800 by 30 June 2015.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 May 2015
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