Kansra v Minister for Immigration & Anor - [2014] FCCA 2726

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANSRA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2726

Catchwords:
MIGRATION – Application to re-instate after filing Notice of Discontinuance – whether power to re-instate – whether particular decisions of High Court and Federal Court are binding – application to re-instate dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Bailey v Marinoff(1971) 125 CLR 529
Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369
Maddison v Qualtime Association Inc [2010] FMCA 25
NABE v Minister for Immigration and Multicultural Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1
SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
SZSML v Minister for Immigration & Anor [2013] FCCA 1253

Applicant:

PAWAN KANSRA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1129 of 2013

Judgment of:

Judge F. Turner

Hearing date:

21 October 2014

Date of Last Submission:

5 November 2014

Delivered at:

Melbourne

Delivered on:

28 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Solicitors for the First Respondent:

Ms Randall-Smith for Australian Government Solicitor

ORDERS

The Application in a Case filed 14 May 2014 seeking to re-instate the application for judicial review filed 23 July 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1129 of 2013

PAWAN KANSRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This decision deals with an application to re-instate an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 28 June 2013.
By Notice of Discontinuance filed on 9 April 2014, the applicant discontinued his application for judicial review. The application for judicial review was struck out by orders made on 9 April 2014.
By Application in a Case filed on 14 May 2014, the applicant seeks to re-instate his application for judicial review.
The grounds for re-instatement are set out in the application as follow:
(1)The orders of Judge Turner, dated 9 April 2014, should be set aside.
Particulars
(a)The applicant was advised that he could not appear at the final hearing without legal representation by a Migration Agent who it not entitled to provide legal advice in relation to judicial proceedings; and
(b)It is in the interests of justice that the notice of discontinuance filed by the Applicant on 9 April 2014, and the orders of Judge Turner dated 9 April 2014, be set aside: see SZF0Z v Minister for Immigration and Citizenship [2007] FCA 1137, Christodoulou v Disney Enterprises Inc and Others (2006) 156 FCR 369 and Maddison v Qualtime Associate Inc. [2010] FMCA 25
(2)The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal misapplied the law or took into account irrelevant considerations.
Particulars
(a)The Tribunal was required to determine whether the applicant met the requirement of the Migration Regulations 1994, Schedule 2, sub-cl.820.211(2)(d)(ii) that, at the time of the application, ‘the applicant satisfied the Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria’.
(b)During the hearing of the applicants application for review the Tribunal took in account the applicant’s relationship/access arrangements with his Australian citizen child and his family’s financial capacity to fund a further Partner Visa offshore as they were at the time of the Tribunal hearing rather than as they were at the time of the visa application as required by sub-cl.20.211(2)(d)(ii).
(c)The applicant’s contact with his child and his financial position at the time of the Tribunal hearing was wrongly taken into consideration by the Tribunal in affirming the decision under review.
(3)The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal decision was affected by a reasonable apprehension of bias in its comments relating to the applicant having ‘escaped’ returning to India for a long time and that he ‘should be very pleased’ with how long he has remained in Australia.
The general position as to re-instatement of a proceeding was stated by Barwick, CJ in Bailey v Marinoff(1971) 125 CLR 529, as follows:
“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law.”
That decision has not been over-ruled.
In the present case the order disposing of the proceeding was drawn up and signed as a record of the Court on 9 April 2014. The disposal of the proceeding was thereby perfected. There is no specific or relevant provision in the Federal Circuit Court of Australia Act 1999 (the “FCC Act”) or the Federal Circuit Court Rules 2001 (the “Rules”) (nor in the Federal Court Rules2011 or the Federal Court of Australia Act 1976) that provide for re-instatement once a proceeding has been discontinued.
At the hearing before the Court on 21 October 2014, Mr Gilbert of Counsel appeared for the applicant and Ms Randall-Smith for the first respondent.
Mr Gilbert referred to the decision of Judge Driver in SZSML v Minister for Immigration & Anor [2013] FCCA 1253. That decision held that the Court has an inherent power to set aside a Notice of Discontinuance in exceptional circumstances in order to prevent injustice or abuse of process.
The Court finds that such circumstances do not exist here. Receipt of incorrect advice must inevitably occur regularly to one side in most litigation. The Court notes that the decision in Bailey v Marinoff was not considered in SZSML.
The Court ordered that the parties file and serve written submissions on the binding effect of the decisions in Bailey, SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 and SZSML.
Written submissions were filed for the applicant on 28 October 2014. The applicant submits that Bailey is distinguishable, as there the proceedings were dismissed for want of prosecution. The submissions refer to the decision of the Federal Court in Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 at [28] that the Federal Court has “power to set aside a discontinuance... where the notice of discontinuance is a nullity.” The applicant submits that Bailey is distinguishable and has no application here.
The Court finds that the relevant principles in Bailey are applicable here.
The applicant referred to Christodoulou at [25] that:
“There is a line of authority to the effect that the [Federal] Court has inherent jurisdiction to set aside a discontinuance… of proceedings if the act constituting the discontinuance… was a nullity in the eyes of the law by reason of fraud or mistake: R v Moore [1957] 1 WLR 841; R v Essex Quarter Sessions Appeals Committee; Ex parte Larkin [1962] 1 QB 712; R v Medway [1976] QB 779.”
And at [27]:
“There is some authority to suggest that the power extends beyond cases of fraud or mistake and that the Court has the power to set aside a discontinuance… whenever the interests of justice dictate that that is the appropriate course: Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316; NACU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1444; Applicant A26 of 2002 v Minister For Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050.”
The Court notes that in [28], the Federal Court found that it did not need to decide whether it had power to set aside a discontinuance beyond those cases where the discontinuance is a nullity.
The applicant then addressed SZFOZ. The Court notes that Justice Ryan stated at [15] that the dismissal there of the application to be re-instated “can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected.” That is the same as the reasoning in Bailey, and was held by Ryan, J to be a reason to support the decision not to re-instate.
The applicant addressed SZSML and submits that is should be accepted on the basis of “comity”; (which the Court regards here as referring to “consistency”). However, SZSML does not consider Bailey, which stands and is of great persuasive authority.
The first respondent filed written submissions on 3 November 2014.
The first respondent referred to the decision of Federal Magistrate Wilson (as he then was) in Maddison v Qualtime Association Inc [2010] FMCA 25 which concerned an application seeking to set aside a Notice of Discontinuance. Wilson FM quoted from Barwick CJ in Bailey, and noted at [25] that there remained an “unresolved issue as to whether the Court has the power to set aside a Notice of Discontinuance in circumstances where an abuse of process or fraud is not established”.
Wilson FM stated further at [30]-[32]:
(30)Following on from a consideration of these cases, I conclude that where a Notice of Discontinuance has been filed in proceedings that were otherwise within the jurisdiction of this Court, the Court has the jurisdiction and the power to set aside the Notice of Discontinuance in circumstances where:
(a)Its filing was procured by fraud or as an abuse of process;
(b)It is necessary to ensure that the Court’s process does not cause an injustice; and
(c)It was filed pursuant to an agreement that is void or voidable.
(31)The circumstances in which a Notice of Discontinuance can be set aside, ought not, as submitted by the respondent, be confined to circumstances where there has been fraud or an abuse of process.
(32)I do not purport to suggest that this is an exhaustive list of the circumstances in which this Court may intervene, but it is sufficient for the purposes of the disposition of these two matters.
The first respondent referred to the decision of Justice Ryan in SZFOZ (supra) where His Honour found at [17] that there was nothing in the [FCC Act or Rules] which empowers the Court to set aside a notice of discontinuance”. The matter was before Ryan, J on appeal from a decision of a Federal Magistrate (as he then was) not to set aside a Notice of Discontinuance as a matter of discretion. Ryan, J held that the decision “was supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected” (supra).
Justice Ryan stated further at [20] that:
“…it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.”
The Court finds that the decision in Bailey is of great persuasive authority and that the decision in SZFOZ (supra) is binding on the Court.
In the present case, the applicant knowingly and voluntarily filed a Notice of Discontinuance, because of incorrect advice that he was unable to appear without legal representation. There is no suggestion of fraud or duress. There is no evidence that the applicant was knowingly misled. There is no injustice; the applicant chose to discontinue his application after incorrect legal advice.
As there is no power to re-instate, there is no need to consider the merits of the substantive application as, even if there is merit, there is no power (Transcript “T” p.8, l.14). There is no circumstance to apply the decision in Maddison (supra).
The first respondent addressed the decision in SZSML and submits at [9] that the decision “does not stand for the proposition that an applicant who has been actively misled into filing a Notice of Discontinuance is a sufficient basis to have the Notice set aside”. Judge Driver was not called on to consider circumstances were the applicant has been misled. In SZSML the applicant “understood that the discontinuance would stop that process [the proceedings] at least until he chose to attempt to re-agitate it” (at [27]). That application to re-instate was dismissed (at [41]). The decision does not support setting aside a Notice of Discontinuance where an applicant has been misled.
The first respondent submits that the Tribunal here considered the claimed implications on the ability of the applicant to pay child support (Court Book p.480 [33]-[34]) and p.482 [82]) and that the claim as now put is new and cannot raise an arguable case: see NABE v Minister for Immigration and Multicultural Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1. The Court agrees.
Mr Gilbert suggested (at T p.10, l.5) that the application to reinstate could be treated as an amended application for judicial review. The Court finds that it cannot be treated as such and rejects that contention. Of course any new application would have to pass s.477 of the Migration Act 1958.
The Court dismisses the application to re-instate the application for judicial review.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 28 November 2014