Joshi v Minister for Immigration and Border Protection
[2016] FCCA 2168
•24 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOSHI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2168 |
| Catchwords: MIGRATION – Application for extension of time for review of former Migration Review Tribunal decision – whether application to the Court is competent under s.486D – whether application to the Court is an abuse of process where applicant previously discontinued judicial review proceedings regarding the same Tribunal decision – application to extend time refused. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 360, 362B, 379A, 379G, 476, 477, 486D Migration Regulations 1994 (Cth), rr.1.06, 13.09, 13.10 |
| Cases cited: MZXPI v Minister for Immigration & Anor [2008] FMCA 1296 SZKUT v Minister for Immigration & Anor [2008] FMCA 241 |
| Applicant: | MANISH JOSHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1367 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 August 2016 |
| Date of Last Submission: | 15 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”
The application to extend time made on 20 May 2015 pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1367 of 2015
| MANISH JOSHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 20 May 2015 seeks an extension of time within which to bring a competent application pursuant to s.476 of the Act to seek judicial review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 3 March 2015, which affirmed the decision of the delegate of the Minister to refuse a Student (Temporary) visa to Mr Manish Joshi (“the applicant”).
The application for an extension of time was set down for, and heard on, 15 August 2016. The applicant appeared in person and the Minister was represented by a solicitor.
The evidence before the Court is:
(1)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
(2)The affidavit of the applicant made on 20 May 2015.
(3)The affidavit of Alanna Lucchese, solicitor, affirmed 8 August 2016.
Leave was sought by the first respondent to file an amended “Response” lodged with the Court’s Registry on 4 August 2016. In the absence of an affidavit of service, the first respondent tendered a copy of a letter sent by the first respondent to the applicant on 4 August 2016, enclosing a copy of the amended Response (“RE2”).
The evidence before the Court reveals that the Tribunal decision was made on 3 March 2015. The applicant made an application for judicial review to this Court on 31 March 2015. That application concerned the Tribunal decision made on 3 March 2015. On 28 April 2015 the applicant discontinued those proceedings by filing the appropriate notice. On 20 May 2015, he made his application to extend time within which to bring the same substantive application.
The applicant stated in submissions, subsequently repeated as evidence before the Court in cross-examination, that the documents attached to the affidavit of Ms Lucchese were the documents relating to his previous application to the Court, and also that he had seen the amended Response and the affidavit of Ms Lucchese some time before the Court hearing. Being satisfied that the applicant had reasonable notice of the documents, leave was granted for the reading of the affidavit of Ms Lucchese of 8 August 2016 and for the filing of the amended Response.
The applicant gave oral evidence to the Court. At the conclusion of the cross-examination of the applicant by the Minister’s solicitor, I gave the applicant the opportunity to explain anything further and give any further relevant evidence that he wished. He did not add anything of relevant substance.
As set out above, the application for an extension of time was set down for hearing on 15 August 2016. However, the Minister raised in his written submissions, and amended Response, two issues which require prior attention. First, the Minister referred to s.486D of the Act to submit that the application to extend time itself was not competent and should be dismissed on that basis. The second issue was that if the Court did not agree with this proposition, the application to extend time should be dismissed as an abuse of process.
The Minister made clear that in the event the Court also did not agree with that latter proposition, that the application for the extension of time should be refused as it was not in the interests of the administration of justice to extend time. The Minister emphasised that his three responses to the application should be dealt with sequentially with the s.486D point being his “primary” position, followed by the claim of the abuse of process.
There is a self-evident logic to the Minister’s contention that the competence of the application to extend time should be dealt with first as it would be otiose to consider the extension of time, or even dismissal as an abuse of process of an application which was not competent.
Consideration: Section 486D Competence
Dealing first with the competence issue. The relevant parts of section 486D of the Act are in the following terms:
“486D Disclosing other judicial review proceedings
(1) A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
…
(4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
‘judicial review proceeding’, in relation to a tribunal decision, means:
(a) a proceeding in the Federal Circuit Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
‘tribunal decision’ means a privative clause decision, or purported privative clause decision, made on review:
(a) by the Tribunal under Part 5 or 7 or section 500; or
(b) by the Immigration Assessment Authority under Part 7AA.”
The Minister submits that an application that does not comply with this requirement is not competent, and relies on various authorities of this Court in support of that proposition (MZXPI v Minister for Immigration & Anor [2008] FMCA 1296, SZKUT v Minister for Immigration & Anor [2008] FMCA 241, Avaiya v Minister for Immigration & Border Protection & Anor [2014] FCCA 268 and SZVXP v Minister for Immigration & Anor [2016] FCCA 1287).
The Minister’s argument is as follows. At page 4 of the application form filed by the applicant on 20 May 2015, the form states, under the heading of “Other Court Proceedings”, that “[t]his section must be completed if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958.”
The applicant did not complete that section of the form. The spaces left for that purpose on the form are blank. The Minister also submits there are no specific details included in the application form as to any previous application to the Court in relation to the Tribunal’s decision.
The evidence of Ms Alanna Lucchese is that the applicant had commenced proceedings in this Court on 31 March 2015 in relation to the same Tribunal decision. That application was discontinued by way of a Notice of Discontinuance signed, and filed, by the applicant on 28 April 2015. Those proceedings involved the same Tribunal decision which is relevant to the current proceedings (see annexure “A” and annexure “B” of the affidavit of Ms Lucchese of 8 April 2016). In short, the Minister’s submission is that the applicant was required to disclose his previous Court proceedings, he did not do so, and the current application should be dismissed as not competent.
The applicant has not sought to challenge, or dispute, the evidence of Ms Lucchese. Nor does he make any claim that he did not make any such previous application to the Court. The applicant’s evidence is that each of the applications made on 31 March 2015 and 20 May 2015 were his applications, signed by him, albeit completed with some assistance from a friend. The Notice of Discontinuance was similarly his document signed by him. The applicant took responsibility for the making of the applications and the Notice of Discontinuance.
Section 486D compels “disclosure to the Court”, in migration matters concerning a Tribunal decision, of previous Court proceedings concerning the same Tribunal decision.
The authorities of this Court on which the Minister relies are authority for the proposition that if an applicant does not disclose, when commencing a relevant proceeding in the Court, previous proceedings concerning the same Tribunal decision, then pursuant to s.486D of the Act, any such application is not competent. The Minister says that this Court should follow those authorities on the basis of comity.
I cannot say that the authorities on which the Minister relies for this proposition are wrong. Further, in my respectful view, based on the plain language of s.486D of the Act, they are correct. Insofar as they state the proposition set out above (at [18]).
However, the disposition of each individual case is to be considered in light of the evidence before the Court in that case.
It is clear that in the current case, that part of the application form, filed by the applicant on 20 May 2015, which invites disclosure of any relevant previous proceedings was left blank by the applicant. That in itself is not sufficient to say that the requisite disclosure was not made. Section 486D of the Act does not specify how the disclosure is to be made.
The section requires disclosure to a Court when commencing proceedings. In my view, that disclosure may be made elsewhere in the application form, in any accompanying affidavit, or notice, or indeed in any other way so long as the disclosure is made “when commencing the proceeding”.
In the current case, that directs attention to other parts of the form filed on 20 May 2015, and to the applicant’s affidavit of 20 May 2015 which was filed at the same time and can therefore be said to temporally meet the requirement of when the proceeding was commenced.
In the application to extend time, under the heading of “Grounds of the application for the extension of time”. The applicant states:
“1. I was not given proper information.
2. I withdrew my earlier appeal due to lack of information.
3. I wish the matter to be heard by Court.”
In his accompanying affidavit, the applicant also states (affidavit of the applicant made on 20 May 2015):
“1. I wish to appeal against MRT decision.
2. I was not given enough opportunity to present my circumstances one of my friend mislead me, which results I discontinue previous applicat”
[The last word looks to have been “cut off”, but in the circumstances, the word should be understood as “application”.]
I understand the relevant meaning of the word “discloses” as it appears in s.486D of the Act to be “reveal” or “make known” (Shorter Oxford Dictionary, Sixth Edition, Oxford University Press). That is, therefore, that when commencing his application the applicant was required to reveal or make known to the Court that he had previously commenced Court proceedings involving the same Tribunal decision. In my view, none of the statements set out at [24] – [25] above, particularly when read in context, satisfy the requirement for disclosure.
When read in context, the reference to “discontinue” at [2] of the affidavit is at best, ambiguous. There is insufficient clarity or specificity as to whether this is a complaint about what the “MRT” did. This is with reference to [1] of the affidavit, in that the applicant claims he was not given the opportunity to present his “circumstances” to the Tribunal. That is, the subject of [1] and the first part of [2] is the MRT decision.
In this context, why this would cause any discontinuance of the earlier proceedings is not clear. If anything, if the applicant was aggrieved by the MRT decision he would have pressed the application to the Court. In any event, what remains is that these references cannot be said to provide in their terms disclosure of the earlier Court proceedings.
Similarly, the statements in the application to extend time are vague and ambiguous. The words “earlier appeal” could not be seen as providing sufficient, let alone plain, disclosure of the earlier specific proceedings. It may reasonably be read as being some reference to the “appeal” to the Tribunal. Particularly as the applicant also states that he wants his matter, in context, the merits of his claims, to be heard by the Court.
When this is read with the accompanying affidavit and the grounds of the proposed substantive application (see [49] below) the applicant is plainly aggrieved with what he perceives to be the failure by the Tribunal to consider his circumstances. It is in this context that I agree with the Minister that the applicant’s failure to fill out the relevant part of the application form inviting specific disclosure and details of the disclosure is relevant.
The words of s.486D of the Act must be given their ordinary meaning and effect. The applicant is compelled in the making of a “second” application to the Court, in relation to a Tribunal decision, to disclose at that time that he had made an earlier application to the Court in relation to the same Tribunal decision.
This requires a certain level of specificity such that the requirement of disclosure of that particular previous proceeding is satisfied. It cannot be said that the applicant “disclosed” the previous proceedings in circumstances where what was said by the applicant requires a process of calculation or divination as to what exactly is meant.
The references to “previous appeal”, without anything further, cannot be said to meet the statutory obligation. Some attempt by the applicant to even partially complete that part of the application form specifically directed to this question may have elevated the phrase “previous appeal” to a level of specific relevance to the obligation of the requisite disclosure. Before the Court, the applicant has not sought to satisfactorily explain why in having completed the greater part of the application form, he did not complete the simple questions asked of him in relation to any previous Court proceedings involving the same Tribunal decision. The absence of such an attempt means that the obligation to “disclose” remained unsatisfied.
The applicant has not complied with the requirement in s.486D of the Act. As he was compelled to do so, the application to extend time is therefore not competent and should be dismissed on that basis.
It is not strictly necessary therefore to consider the other two aspects of the Minister’s amended Response. However, given that the Minister made submissions, and for the applicant’s benefit, I would have for the reasons that follow, not exercised the discretion to extend time.
Consideration: The Extension of Time
Section 477(1) of the Act, provides that applications made pursuant to s.476 of the Act, which seek to engage the Court’s jurisdiction to review a migration decision, must be made within 35 days of the date of the migration decision.
As stated above, in the current case, that decision was made on 3 March 2015. The time within which a competent application could be made to this Court expired on 7 April 2015. The “second” application to the Court was made on 20 May 2015, which is over a month after that date. Therefore, the application is not competent for that reason.
Section 477(2) of the Act does provide for the exercise of the Court’s discretion to extend time if it is in the interests of the administration of justice to do so. Section 477(2)(a) of the Act requires that an application for an extension of time be made in writing, specifying why the applicant considers it to be necessary for the Court to extend time.
There is no finite, prescriptive list of elements, or factors, relevant to the consideration of the issue of the interests of the administration of justice. The elements relevant to this consideration are not exhaustive. What is relevant, arises from the circumstances presented by each case (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197 and SZMFJ v Minister for Immigration & Anor [2009] FMCA 771).
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 per Foster J, the Federal Court relevantly said (at [47] – [48]):
“[47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s.477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the court which have utility in most cases.”
(See also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 per Mortimer J, MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 per Mortimer J and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 per Wigney J)
The length of the delay in the current case is in total 78 days, and 43 days after the expiry of the 35 day period in s.477(1) of the Act. The applicant at best explains this by saying that he “was not given proper information” and withdrew an earlier “appeal due to the lack of information”.
For this specific consideration, this earlier “appeal” is taken to be an application made to this Court on 31 March 2015 concerning the same Tribunal decision which is the subject of the proposed substantive application to this Court. This was discontinued by the applicant on 28 April 2015. In his affidavit of 20 May 2015, the applicant asserts that he was misled by a friend and this led to his discontinuing his application to the Court.
The applicant has provided no evidence to say what the nature of the advice was, the context of the giving of the advice, or his circumstances at that time. In short, the applicant’s evidence does not explain why he followed that advice, whatever it may have been, such that he can be said to have acted reasonably in relying on that advice and discontinued the proceedings.
There is nothing before the Court to say that any fraud was perpetrated on the applicant, or that he acted under duress. Nor can it even be said that the advice was negligent. Mere poor advice by a friend is not sufficient of itself to justify the delay. Particularly where the applicant confirmed in his evidence that ultimately the decision to discontinue was his decision.
As is clear, the applicant did commence judicial review proceedings on 31 March 2015. He therefore knew of the option of seeking judicial review of the Tribunal’s decision. He withdrew these proceedings by filing a Notice of Discontinuance. There is nothing to say that that notice was procured by fraud or duress. The applicant makes no contention that he did not give the Notice of Discontinuance himself.
In all the circumstances, the length of the delay is of note. I find the explanation for the delay is unsatisfactory.
The applicant’s Notice of Discontinuance is also a factor to be taken into account in the context of prejudice to the Minister when considering what is in the interests of the administration of justice. Some weight must be given to the principle of finality in litigation. The applicant initiated earlier proceedings involving the same Tribunal decision that he now seeks to ultimately, again, put before the Court. The Minister should not have to, without some reasonable explanation, be put to again dealing with an application concerning the same Tribunal decision which the applicant himself withdrew on an earlier occasion.
However, an even stronger element in favour of not exercising the discretion to extend time is that there is no merit in the grounds of the proposed substantive application such as to argue for the extension.
The applicant’s grounds in the proposed substantive application are in the following terms:
“1. I was not given enough opportunity to present my circumstances.
2. I wish to appeal against MRT decision.
3. MRT should have considered my circumstances and situation.”
The following background is relevant. The applicant is a citizen of India. He applied for the visa on 10 October 2014 (CB 1 to CB 8). He was assisted by a registered migration agent.
By letter dated 13 October 2014, the Minister’s department invited the applicant to comment on certain information (CB 14 to CB 18). The letter stated that the applicant had been granted an initial “Student visa subclass 572 visa on 08/03/2010” and “granted a further Student visa subclass 572 on 21/06/2012” (CB 15.6). The departmental letter stated that records obtained from “Provider Registration and International Student Management” (“PRISMS”) indicated that the applicant had “studied multiple courses at the vocational level over the past four years”, and yet the records indicated that the applicant had “failed to complete any qualification” while holding the previous student visas. The department requested a statement “setting out [his] reasons for undertaking the study proposed” in his visa application, including “any factors which prevented [him] from maintaining and completing” his studies on his previous student visas (CB 16.3).
By email dated 10 November 2014, the applicant’s representative provided a “letter of justification” from the applicant. In response to the department’s request for comment on “any factors which prevented [him] from maintaining and completing” his studies on his previous student visas, the applicant stated (CB 23):
“Only reason I would say is having no goal in life on that time. I was considering different career option and kept changing study. I wasn’t aware about the fact that I am unknowingly affecting my status and record in the eyes of department…”
The delegate refused the application for the visa on 1 December 2014 (CB 28 to CB 37). The delegate found that the applicant did not meet cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). That is, that the applicant was not a “genuine applicant for entry and stay as a student” (CB 36).
The applicant applied for review to the Tribunal on 17 December 2014 (CB 38 to CB 41). He was again assisted by a registered migration agent. I am satisfied on the evidence that a copy of the delegate’s decision record was given to the Tribunal by the applicant with the application for review (see “Document 3” at CB 39.8)
By email to the applicant’s representative dated 2 February 2015, the applicant was invited to attend a hearing before the Tribunal on 3 March 2015 and was requested to provide information in the form of a current Certificate of Enrolment (CB 45 to CB 49).
A Tribunal “Case Note” in the Court Book indicates that a Tribunal Officer contacted the applicant’s representative by telephone on 23 February 2015, as no response to the hearing invitation had been received. The Case Note is in the following terms:
“RE- no response to hearing invitation. I phone Rep’s. office no., was not answered. I phone Rep’s. mobile no., which was diverted to an office colleague, who advised that the hearing invitation letter had been forwarded to the applicant but no response had been received. The colleague said he would pass advice onto the Rep.”
The Tribunal affirmed the delegate’s decision on 3 March 2015. The Tribunal was satisfied that the applicant was invited to appear before it and present arguments under s.360 of the Act. Further, it was satisfied that the applicant was sent a notice regarding the hearing under s.360A of the Act by one of the methods specified under s.379A of the Act ([7] at CB 60). Therefore, the Tribunal proceeded to make a decision without taking any further action to allow or enable the applicant to appear before it, with reference to s.362B of the Act ([8] at CB 60 to CB 61).
The Tribunal found that the applicant had not provided any information to the Tribunal to “indicate that he was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa” ([12] at CB 61). Therefore, the Tribunal found that the applicant did not meet the requirement for the grant of the visa, that being, that at the time of the decision the applicant was enrolled in, or be the subject of a current offer of enrolment in a course and therefore did not meet cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations.
At best the applicant’s complaint is that he was not given sufficient (“enough”) opportunity to present his case and the Tribunal therefore did not consider his situation. This immediately directs attention to the Tribunal’s conduct of the review. The applicant was invited to a hearing pursuant to s.360 of the Act. That invitation was properly sent to the applicant’s authorised recipient for correspondence to the address for service nominated for that purpose. Sending the letter of invitation to the authorised recipient necessarily means the applicant is taken to have received the letter (s.379G(2) of the Act).
That letter was dated 2 February 2015 and sent by email. The hearing was scheduled for 3 March 2015. On the evidence the letter complied with all of the requirements of s.360A of the Act. There was no response by the applicant or his authorised recipient.
Further, the letter of invitation to the hearing specifically put the applicant on notice that he should provide, within 7 days of receipt of the letter, all the relevant documents to establish he met the relevant criteria for the visa. This specifically included reference to any Certificate of Enrolment or offer of enrolment (CB 47 to CB 48). The applicant did not respond to this.
The applicant did not appear at the hearing before the Tribunal. There is no evidence he sought any adjournment or otherwise notified any difficulty in attending. In these circumstances, the Tribunal proceeded to make a decision pursuant to s.362B of the Act which is in the following terms:
“362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day which, or at the time and place which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss the proceedings.
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.”
The applicant did not appear at the hearing to which he had been properly notified (s.362B(1) of the Act). In these circumstances, it was open to the Tribunal to proceed to consider making a decision on the review without further action to enable the applicant to appear.
In considering the exercise of this discretion, the Tribunal must act reasonably (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). The Tribunal was satisfied that the relevant statutory requirements in relation to the invitation to hearing had been complied with by the delegate. The Tribunal noted that when no response was received to the letter of invitation, inquiries were made with the applicant’s representative. A colleague in the representative’s office advised that they had sent the invitation letter to the applicant but had not received any response (CB 52). Neither the applicant nor his representative gave any explanation for the failure to attend nor was any adjournment sought.
The Tribunal gave reasons for exercising its discretion which provide an “evident and intelligible justification” for proceeding to exercise the discretion pursuant to s.362B. I agree with the Minister’s submissions in this regard (see [30] of the Minister’s written submissions):
“In any event, the Tribunal gave reasons for exercising its discretion which give an evident, transparent and intelligible justification for the Tribunal proceeding to exercise its discretion pursuant to s 362B of the Act. Further, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s decision to exercise its discretion was arbitrary, capricious, without common sense or plainly unjust (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]). While ‘reasonable minds may reach different conclusions about the correct and preferable decision’, the Tribunal’s decision to exercise its discretion under s 362B was within the ‘area of decisional freedom’ (Li (supra) at [18]).”
In the circumstances, the Tribunal did not just rely on the letter of invitation, it took a further positive step to contact the applicant through his agent. No unreasonableness arises in the circumstances presented. The applicant’s first ground lacks merit such as to weigh in favour of the extension of time.
Ground two of the proposed substantive application merely asserts the applicant’s intention to seek judicial review. It too lacks the requisite merit.
Ground three asserts that the Tribunal should have considered his circumstances and situation. The applicant was put on notice of the critical issue of the need to provide evidence of enrolment in a course of study or an offer of enrolment. This was a key criterion for the grant of a student visa.
The applicant did not provide any such evidence. The Tribunal’s finding that there was no evidence before it that he met the key criterion for the visa was reasonably open to it. In light of this finding, it was not necessary for the Tribunal to further continue any consideration of the applicant’s circumstances. Whatever the nature of these circumstances, the applicant could not be granted the student visa without evidence of enrolment. This ground also lacks merit such that it would weigh in favour of the extension of time.
The Minister, fairly, also drew attention to the PRISMS records that were before the Tribunal (CB 50 to CB 51). The Tribunal made reference to these in its decision record ([11] at CB 61). In Kaur v Minister for Immigration and Border Protection [2016] FCA 132, Justice Perry found that in the circumstances of that case, the Tribunal should have given the applicant an invitation to comment on or respond to such information pursuant to s.359A of the Act.
In my view, the circumstances of this case are distinguishable. Section 359A of the Act, obliges the Tribunal to give an applicant information which it considers would be the reason or a part of the reason for affirming the delegate’s decision.
In the current case, on a fair reading of the Tribunal’s decision record, the reason for the Tribunal’s decision was that there was no evidence before it that the applicant was enrolled in or had an offer of enrolment, in a course of study. The applicant had been asked to provide such evidence but he failed to do so. In that light, the PRISMS records were not a part of the reason for the decision.
In any event, even if it were to be said that they were, the Tribunal referred to the PRISMS records as “extracted in the delegate’s decision” ([11] at CB 61). I am satisfied that the applicant had given a copy of the delegate’s decision to the Tribunal for the purposes of the review. Any information contained in the delegate’s decision, including references to the PRISMS records, were caught by the exemption to s.359A(1), in s.359A(4) (Minister for Immigration and Citizenship v Chamnan You [2008] FCA 241 and Minister for Immigration and Citizenship v Brar [2012] FCAFC 30).
The applicant has not provided a satisfactory explanation for the delay in making his current application. There is prejudice to the Minister in circumstances where the applicant, in effect, seeks review of the same Tribunal decision on a second occasion. Of greater weight is that the grounds of the application do not raise any arguable case sufficient to justify the extension of time. If s.486D did not operate to make the application to extend time incompetent, I would have refused to exercise the discretion to extend time pursuant to s.477(2) of the Act.
Consideration: Abuse of Process
As set out above, the Minister also submitted that the application to extend time if found to be competent, in light of s.486D of the Act, should in any event be dismissed as an abuse of process.
The Minister’s submissions can be summarised as follows. The application to extend time has been brought in relation to the same Tribunal decision which was the subject of the original application. That application was discontinued by the applicant. In these circumstances, it is open to the Court to dismiss the application as an abuse of process (the Minister relies on Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (“Walton”), NBHV v Minister for Immigration and Citizenship [2007] FCA 1749 and MZAER v Minister for Immigration & Anor [2016] FCCA 782 (“MZAER”)).
In the exercise of the Court’s discretion, the Court must consider the circumstances of each case (SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170). In the current case, the applicant’s evidence is that he received poor advice from a friend with the result that he discontinued the proceedings. There is no suggestion of fraud or duress. The applicant’s evidence was that it was his ultimate decision, and that he signed and filed the Notice of Discontinuance.
In those circumstances and in the circumstance that the applicant did not file an application to have the Notice of Discontinuance set aside, it was appropriate to dismiss the application to extend time as an abuse of process. The Minister relied on MZAER per Judge McGuire, a judgment of this Court, as authority to be followed generally in relation to his submissions, but in particular on this latter point.
The Minister’s reliance on the reasoning in MZAER requires some focus on the reasoning and circumstances of that case. Relevantly, the Court had before it an application to extend time in a migration matter where an earlier application for review of the same Tribunal decision had been discontinued by the applicant (MZAER at [4]). That is similar to the current case.
The Minister’s submission in that case was that the bringing of a “second application” for judicial review after a first application had been voluntarily discontinued amounts to an abuse of process warranting summary dismissal (MZAER at [6]).
This was further explained in that case as follows (MZAER at [7]):
“The record shows that the applicant’s first application was discontinued on 6 August 2014. He filed a second application on14 November 2014. Counsel for the respondent argues that the process of filing a second application dealing with the same subject matter as the first and seeking the same remedy is simply a tactical ploy to avoid the heavy onus and strict requirements of a party seeking to withdraw a notice of discontinuance. Counsel says that the same strict standard should apply and the application is therefore an abuse of process.”
His Honour in MZAER then reviewed authorities on the question of the Court’s power to set aside a Notice of Discontinuance (SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137 (“SZFOZ”), Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 (“Bailey”), SZSML v Minister for Immigration & Anor [2013] FCCA 1253 (“SZSNL”) and Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91 (“Khadri”)).
In that case the Minister submitted that the principles variously set out in those authorities should be applied to the circumstances before the Court, given that the applicant in that case did not seek to set aside the Notice of Discontinuance but “simply filed a second application seeking the same remedy in respect of the same matter” (MZAER at [13]). The Court accepted these submissions.
The Minister urged the same approach in the current case. There are a number of factors for consideration here.
First, the Minister’s submission relies on the principle of comity. The argument was the current circumstances are relevantly indistinguishable from those in MZAER and therefore this Court should apply the same reasoning in the current case. I will return to aspects of this below.
Second, the Minister’s submission did not address the following. In essence, by this submission, the Minister seeks summary dismissal of the application to extend time. In this light the Minister’s submissions were silent on the proposition that the power to dismiss an application summarily should be exercised with caution.
An order in this case that would, in effect, strike out the application to the Court without the relevant hearing of that application, should only be made where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1] and Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]). It may even be the case that to dismiss the application as an abuse of process it must be plain and obvious that the grounds of the application are unarguable or that it is a hopeless case that would fail if it were to proceed (Xie v Immigration Department [1999] FCA 365).
The absence of such consideration in the Minister’s submission leaves these submissions, in my view, with an approach which can only be described as formulaic. In essence, the Minister proposes that in all cases, an application to extend time which is in relation to the same Tribunal decision, which was the subject of a Notice of Discontinuance of an earlier application for judicial review, should simply be dismissed on that basis.
Third, the Minister’s submissions appear to have forgotten that the Minister professes to be a model litigant in matters of this type. The Minister urges the Court to summarily dismiss the application to extend time as an abuse of process because the applicant did not make any application to the Court to set aside the Notice of Discontinuance, but instead pressed the application to extend time.
The reasoning in MZAER on which the Minister relies, and as set out above, commences with the reference to SZFOZ per Ryan J (MZAER at [8]):
“In SZFOZ v Minister for Immigration and Citizenship & Anor Ryan J, dealing with an application for reinstatement, notes:
There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance…”
[Emphasis added.]
It is to be remembered that the applicant in the current case, unlike as in MZAER, is not legally represented. He is not a lawyer. Yet the Minister’s reliance on the reasoning in MZAER and his urging of its application to the current case, requires the applicant to have applied to set aside the Notice of Discontinuance when there is nothing in the “relevant provisions of the [Rules] which empowers the Court to set aside a notice of discontinuance or reinstate proceedings which have been regularly discontinued” (SZFOZ at [17]).
It would require of the applicant to adopt and prosecute a procedure arising from the subtlety and intricacy of the reasoning set out in the totality of such cases as referred to in MZAER (see above at [82]).
Yet at the same time as requiring the applicant to adopt a “strict” and “technical” approach to achieving the “resurrection” of his original application, the Minister himself has not complied with relevant rules of this Court.
The Rules of this Court do make provision for disposal of an application by summary disposal (see Div 13.3). The Court’s power is relevantly at r.13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”):
“Rule 13.10 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 proceedings, if the Court is satisfied that:
…
(c) the proceedings or claim for relief is an abuse of the process of the Court.”
The Rules contemplate that the Court’s ability to make such an order must derive from r.13.09 of the FCC Rules:
“Rule 13.09 Application
An application for judgment or for an order that a proceeding be stayed or dismissed must be made by filing an application in accordance with the approved form.”
[Emphasis added.]
In the current case, the Minister has not made such an “application in accordance with the approved form”. He relies on an amended Response and his written submissions. It may be that the applicant may be said to have had reasonable notice of the Minister’s intention at the hearing of the extension of time to raise the abuse of process matter.
However, the immediate question is that should the Minister, as a model litigant, press on an unrepresented applicant, the need to have “strictly” sought to set aside the Notice of Discontinuance in circumstances outlined above, while at the same time not adopting a procedure “strictly” in accordance with the Rules.
Nor did the Minister at any time even suggest, let alone submit, that the Court dispense with the application of r.13.09 in the interests of justice (see r.1.06 of the FCC Rules).
It is the case that the repeated bringing of similar applications, where it would be unjustifiable, oppressive or vexatious, or would bring the administration of justice into disrepute, may be an abuse of process (see Walton and Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at [4] – [6]). It is also the case that there is a public interest in the finality of litigation and that a party should not be repeatedly vexed in the same matter (Johnson v Gore Wood & Co [2002] 2 AC 1 at [22] – [34] per Lord Bingham).
However, none of these arguments were raised by the Minister in the current proceedings. In my view, the Minister’s position would have been strengthened if he applied to himself the same standard as he requires from an unrepresented applicant.
It may be that even this could have been overcome had the facts of this case been similar to cases often seen in this Court in the past. That is, of an applicant who, having had a hearing of their application before this Court, and the Federal Court and then unsuccessfully sought leave to appeal in the High Court, then sought to recommence their matter in this Court (see for example SZGIT v Minister for Immigration & Anor [2005] FMCA 1543, SZHAC v Delegate of the Minister for Immigration & Anor [2006] FMCA 854 and NBGO & Anor v Minister for Immigration & Anor [2009] FMCA 177). This is not such a case.
I decline to follow MZAER as the Minister urges in the current circumstances. To the extent that MZAER may be said to provide the basis for the Minister’s approach to the matter of abuse of process in this case, then I do not respectfully agree with the approach taken in MZAER. In my respectful view, a far more appropriate approach would be to have followed what Judge Jarrett did in BZAGD v Minister for Immigration & Anor [2015] FCCA 3471 (“BZAGD”) (and see BZAGD v Minister for Immigration and Border Protection [2016] FCA 670).
In that case, His Honour was presented with the following circumstances “identical” to the current circumstances. An applicant, who in that case, unlike the current case, was legally represented, made an application for an extension of time within which to commence a judicial review application in relation to a Tribunal decision. That same decision had been the subject of an earlier application to the Court which had been discontinued by the applicant by the filing of the appropriate notice (see BZAGD at [1] – [3]).
His Honour stated at [4] and [5]:
“[4] The latter application came before me on 8 December, 2014 on its first court date. The applicant was represented by counsel. It was argued by the first respondent and seemingly accepted by the applicant that the application was, in substance, an application by him for leave to withdraw the notice of discontinuance filed in the former proceedings. Accordingly, I made directions for the filing of an application for leave to withdraw the notice of discontinuance in those proceedings.
[5] In accordance with the directions made on 8 December, 2014 on 23 December, 2014 the applicant filed an application in a case in BRG 1176 of 2013 seeking that he have leave to withdraw his notice of discontinuance.”
[Emphasis added.]
His Honour proceeded to consider the matter in that light, and including consideration of the prospects of success on the extension of time application (see BZAGD [30] – [54]). The Court did not proceed to simply summarily dismiss the application to extend time as an abuse of process.
I also note that in BZAGD the course adopted by the Court appeared to emanate from the Minister’s own argument (see BZAGD at [4] and above at [104]). This is in contrast to the approach taken by the Minister in the current case and in MZAER. Some consistency by the Minister in his approach to these cases with relevantly identical circumstances would assist the Court in the efficient administration and disposition of the large volume of migration cases.
Conclusion
The application to extend time is refused as the application to the Court is not competent. I will make an order accordingly.
I certify that the preceding one hundred and seven (107) are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 August 2016
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