Moussa v Minister for Immigration
[2015] FCCA 1879
•9 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOUSSA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1879 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside Notice of Discontinuance – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347, 476, 477, 494C, 494D |
| Jalloh v Minister for Immigration& Anor [2015] FCCA 1154 MZZDN v Minister for Immigration& Anor [2015] FCCA 69 Khadri v Minister for Immigrationand Border Protection [2014] FCA 91 |
| Applicant: | MOHAMAD MOUSSA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 948 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 9 July 2015 |
| Date of Last Submission: | 9 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Mr K. Erskerie Sparke Helmore |
ORDERS
The name of the second respondent be amended to the Administrative Appeals Tribunal.
The application in a case is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $2776.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 948 of 2015
| MOHAMAD MOUSSA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application in a case seeking an order to withdraw a notice of discontinuance that was filed on 16 June 2015. The originating application was filed on 7 April 2015 seeking a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 30 January 2015, holding that the Tribunal did not have jurisdiction in respect of a decision of the delegate made on 24 October 2014 refusing to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant arrived in Australia on 20 December 2011 on a subclass TU-573 visa, which was cancelled on 28 October 2012. The applicant applied for a Protection visa on 11 October 2012, which was refused on 14 February 2013. The applicant appealed to the Refugee Review Tribunal on 25 February 2013 and the delegate’s decision was affirmed on 1 July 2014. The applicant unsuccessfully sought ministerial intervention by applying on 31 July 2014, which application was rejected on 19 August 2014. The applicant lodged the application for review the subject of these proceedings, on 28 April 2014.
In that application for review to the Tribunal, the applicant identified an authorised recipient, which included an electronic communication, email address for that authorised recipient in respect of the review process.
The applicant deposed to the fact that he became aware of information in the Court book that the applicant asserted the authorised agent in the application for review had no authority to convey. The applicant asserted that he became aware of this information after he had filed the notice of discontinuance. The applicant gave evidence that he had appointed a migration agent to act on his behalf in relation to the application for the Partner (Temporary) (Class UK) visa and that it was not until the filing of the application in the case in this court that the applicant purported to terminate any authority of the agent.
The applicant gave oral evidence that prior to filing the notice of discontinuance he had consulted a number of lawyers and that none of them had advised him to continue his case. The applicant gave evidence that some of the lawyers he consulted had the benefit of the Court book that he received on 2 June 2015. It was clear from the applicant’s evidence that he knew what he was doing when he filed a notice of discontinuance. The applicant, however, said that he would not have filed that notice of discontinuance if he had been aware of assertions made by his authorised recipient that were in the Court book and which the applicant said were untrue and were fabricated.
The communication to which the applicant drew attention was an email dated 22 December 2014 to the Tribunal in response to the Tribunal’s letter dated 8 December 2014. The letter from the Tribunal dated 8 December 2015 identified that the application for review did not appear to be valid within s.347 of the Act as it was lodged outside the 21-day period. The email dated 22 December 2014 asserted that the applicant had been very sick due to chicken pox and was suffering financial hardship, and the applicant gave sworn evidence that these matters were untrue and were alleged to have been fabricated by the agent. These alleged false facts were not material to the existence of jurisdiction or any relevant discretion.
The applicant also gave evidence that the application for review in this Court had filed with it an affidavit sworn 7 April 2014 which annexed the decision of the Tribunal and requested an opportunity to resubmit sufficient evidence so as to grant the application for a visa. The applicant swore that the signature on that affidavit was not his. The existence of the proceedings was clearly a matter in respect of which the applicant was alive in consulting lawyers and lodging the notice of discontinuance. The alleged false affidavit has no material impact on the jurisdictional issue before the Tribunal.
The applicant contended that the agent had engaged in unauthorised acts by reason of which the applicant had an arguable case of jurisdictional error by the Tribunal, and that the applicant should be allowed to withdraw the notice of discontinuance.
The applicant pointed to the email of 22 December 2014 and the alleged fraudulent affidavit sworn 7 April 2014 as evidencing fraudulent activity of the agent of a kind that meant no longer acting within the scope of his authority such as to give rise to a jurisdictional error.
Respondent identified the importance of the principle of finality in respect of litigation, and that this principle informed the limited circumstances in which the Court had jurisdiction to permit the setting aside of a notice of discontinuance. The first respondent submitted that the jurisdiction to set aside a notice of discontinuance was a narrow power to be exercised to prevent an injustice only in exceptional circumstances, such as fraud or abuse of process.
The first respondent drew the Court’s attention to the principles identified in Jalloh v Minister for Immigration& Anor [2015] FCCA 1154 at [9] and [10]; MZZDN v Minister for Immigration& Anor [2015] FCCA 69 at [15], [44]-[47], [51], [55]-[56]; and Khadri v Minister for Immigrationand Border Protection [2014] FCA 91 at [16].
The first respondents submitted that the applicant had not made out a case of fraud or abuse of process so as to enliven the Court’s jurisdiction. The first respondent submitted that this was a case where the applicant had received legal advice and understood the effect of what the applicant was doing. The first respondent submitted that there was no relevant fraud or abuse of process in relation to the applicant’s decision to discontinue the proceedings.
The first respondent drew attention to the fact that the applicant was armed with the Court book at the time deciding to lodge the notice of discontinuance, and that there was no operative conduct by the agent that could be said to have been the cause of the applicant lodging the notice of discontinuance, or conduct to support an abuse of process of a kind that would enliven the Court’s jurisdiction to permit the notice of discontinuance to be withdrawn.
It is, of course, of serious concern that the applicant alleges an authorised recipient, who is apparently a migration agent, is said to have provided unauthorised information by the email dated 22 December 2014, and is alleged to have forged the applicant’s signature on the affidavit sworn 7 April 2015.
Whilst I am prepared to accept on the evidence before this court that the agent engaged in unauthorised activity in respect of the email dated 22 December 2014, and in respect to the affidavit sworn 7 April 2015, that is not conduct of a kind that constitutes exceptional circumstances to warrant the setting aside of the notice of discontinuance. The alleged fraudulent activity does not go to the applicant’s understanding of the notice of discontinuance or the applicant’s understanding of the merits of his case as to the existence of jurisdictional error by the Tribunal.
It was apparent from the applicant’s evidence that he appreciated that a decision had been made by the Tribunal in February of 2015, and the application lodged for Constitutional writs was one in respect of which an extension of time under s.477 was required.
A s.477 application generally requires an adequate explanation for the failure to lodge the application within the time limit under s.477, as well as a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice.
In this case, notwithstanding the criticisms of the agent, on the applicant’s own evidence of the knowledge of the applicant of the decision of the Tribunal, I am not satisfied that there is an adequate explanation for the delay. Further, the grounds in the application in this case clearly fail to identify any jurisdictional error. The alleged fraudulent activity by the agent in this case even if accepted is not capable of giving rise to any jurisdictional error by the Tribunal.
In this case, it is clear from the application that the authorised recipient was notified within s.347 by the transmission method of email to the authorised email address and pursuant to s.494D and s.494C that is taken to be effective notification to the applicant.
The grounds of the application are as follows:
1. I have married to my wife and all legal paperwork has been submit to the DIBP however it was refused.
2. I believe that my aplication with all support documents has been met the visa requirement that should to be granted.
3. I have supported all required document to the tribunal member.
Those grounds in the application fail to identify any jurisdictional error.
The Tribunal notified the authorised recipient for the applicant of the potentially dispositive issue, in terms of the late lodgement of the application for review. The Tribunal was in the circumstances of the notification to the authorised recipient by email, correct in its finding that it had no jurisdiction.
Accordingly, even if this Court had a broader jurisdiction to set aside the notice of discontinuance than fraud or abuse of process, this is not a case in which in the interests of the administration of justice could be said to require an extension of time under s.477. The application to set aside the notice of discontinuance should be refused. The application in the case is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 15 July 2015
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