MZADF v Minister for Immigration

[2016] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3000

Catchwords:
MIGRATION – Judicial review – application to reinstate.

Legislation:

Migration Act 1958 (Cth), s.486E

Immigrants and Emigrants Act 1949 (Sri Lanka)
Federal Circuit Court Rules 2001 (Cth), pt.3 sch.1

Cases cited:

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

Chen v Monash University [2016] FCAFC 66
Briginshaw v Briginshaw [1938] HCA 34

Applicant: MZADF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 743 of 2014

Judgment of: Judge Harland

Hearing date: 12 September 2016

Date of Last Submission: 12 September 2016

Delivered at: Melbourne

Delivered on: 12 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended from ‘Refugee Review Tribunal’ to the ‘Administrative Appeals Tribunal’.

2. The application in a case filed 13 July 2016 is dismissed.

3. The applicant pay the respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 743 of 2014

MZADF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an Application in a Case seeking to reinstate proceedings which were discontinued by way of a consent order lodged in my chambers in July 2015.  I do not propose to set out the factual background in any great detail and note that it is addressed in the written submissions of the first respondent. Both in the submissions that were filed with respect to this application but also with respect to the related proceedings of MLG 2330 of 2015.  Having considered the court book and the decision of the Tribunal in particular it is an accurate summary of the background of the case.  The applicant had the assistance of lawyers during the course of the first set of proceedings which are proceedings number MLG 743 of 2014.  His lawyers filed a notice of address for service after the applicant filed his application for judicial review.

3. After the proceedings were discontinued by consent, which also included a costs order by consent in the Minister’s favour, the applicant made a request to the Minister for intervention.  It is apparent from the applicant’s affidavit filed in support of the Application in a Case that the same solicitors assisted him with that application.  This is because at the annexure of the applicant’s affidavit the letter notifying him of his failure to succeed in that request at page 2 of that annexure was also sent to his solicitors.  That suggests that his solicitors assisted him with that application. 

4. After he was unsuccessful in that request for ministerial intervention the applicant filed a further application for judicial review.  It appears that he did not have the assistance of a lawyer and in that application he did not disclose that he had previously filed an application for judicial review.  That application was given a different proceedings number and a different pseudonym and it appears that whilst the court book was prepared it became apparent that the two matters – that the applicant in both matters was the same.  That matter came before Judge Riethmuller where it was conceded that the application was incompetent.  The same counsel appearing for the applicant today appeared for the applicant before Judge Riethmuller. Judge Riethmuller made an order permitting the applicant to file and serve an application in the case for reinstatement of the first set of proceedings within 28 days.

5. Counsel for the applicant confirms that he assisted the applicant to prepare that affidavit and has filed submissions today as well as making oral arguments.  The written submissions the applicant makes are largely unhelpful.  In part, they refer to evidence which is not before the Court. Also they did not contain any case references and do not seek to apply the law to the facts in the case. This is not the first time I have pointed out this problem to Mr Barataraj. 

6. The Minister’s submissions set out with some length the applicable law and it is significant to note that the Minister also prepared amended submissions for the second proceedings before Judge Riethmuller which would have clearly put the applicant on notice of the principles of law applying with respect to an application to set aside a notice of discontinuance.  In particular, I note those submissions refer to the decision of Perram J in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (“Moussa”) and the case of Chen v Monash University [2016] FCAFC 66, being a Full Court decision of the Federal Court of Australia.

7. The applicant’s affidavit makes a very serious allegation against his then solicitor.  In essence, the applicant says that he had previously been told by a lawyer in the same law firm that his case had merit, but eight days before the trial his lawyer told him that his application did not have any chance of success and that he should withdraw the case.  He says that the lawyer suggested that he should apply to the Minister for a protection visa.  I assume what the applicant is referring to is applying for ministerial intervention as he had already gone through the protection visa process.  He complains at [6] of that affidavit that the second lawyer advised him he had to sign a paper withdrawing his application.  He says the lawyer told him that he could not represent him anymore and that if he did not sign the withdrawal notice in accordance with his advice he would need to inform the immigration department.  He says the lawyer added that he would be detained by the department and would be sent back to Sri Lanka.  The applicant says that as he did not want to end up in a detention centre he signed the withdrawal notice under duress.  He says that he had no intention of withdrawing the case and wanted to proceed with the case.

8. That is the extent of what the applicant says about the solicitor’s conduct. The Minister draws attention to section 486E of the Migration Act 1958 (Cth) (“Migration Act”).  That section places an obligation on legal practitioners and states the following:

   (1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:

   (a) the migration litigation has no reasonable prospect of success; and

   (b)  either:

   (i)  the person does not give proper consideration to the prospects of success of the migration litigation; or

   (ii)  a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.

   (2)  For the purposes of this section, migration litigation need not be:

   (a)  hopeless; or

   (b)  bound to fail;

   for it to have no reasonable prospect of success.

   (3)  This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.

9. Section 486E requires the person not to encourage the litigant to commence or continue migration litigation if that litigation has no reasonable prospect of success. Subsection (2) notices that the litigation need not be hopeless or bound to fail for it to have no reasonable prospect of success. Subsection (3) is significant as it states that:

   This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.

   Subsection (3) makes it clear that the legal practitioner’s duty to the Court in this instance is higher than his or her duty to the client.  That is not an uncommon statement of principle with respect to the duties of officers of the Court to the Court more generally.

10. The written submissions of the Minister point out that there is, in effect, an innocent explanation for what the applicant has referred to. Certainly, in accordance with the solicitor’s obligations which are explicit under section 486E of the Migration Act, the solicitor was obliged to withdraw from the proceedings having formed the view that the applicant had no prospects of success.  The solicitor would have been obliged to advise the applicant as to his options;  one option being to file a notice of discontinuance, the other being to continue the hearing, either with alternate representation or representing himself.  They would be fairly standard issues to discuss in these circumstances.

11. Counsel for the Minister also referred to the case of Briginshaw v Briginshaw [1938] HCA 34 (“Briginshaw v Briginshaw”) and in particular passages at pages 361 and 362 of that decision. It is the case that making an allegation of misconduct against a legal practitioner such that the legal practitioner coerced an applicant to discontinue proceedings is a very serious allegation with grave consequences. The passages that I was referred to in Briginshaw v Briginshaw are significant in this context. and in particular the following quote:

    But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

    I find that that is applicable here.  The applicant provides little detail in support of a most serious allegation, and particularly in light of the solicitor’s obligations, I am not satisfied that the applicant did not knowingly and willingly discontinue his case.  He may have well have had second thoughts about it.  He may well have been unhappy about it.  But that does not amount to being coerced or forced into making that notice of discontinuance and, in fact, one has to wonder what possible benefit would there be to a legal practitioner in undertaking that course.  It is a simple matter.  If the applicant wished to continue, his solicitor could have filed a notice of withdrawal.  That is not an uncommon practice.

12. It just seems to be unfathomable as to why a lawyer would undertake that course.  It may well be that the applicant did not understand all of the advice that he was given.  But it seems to me that the explanation put forward by the Minister is much more likely.  It then falls to turn to the authorities on this issue of setting aside a notice of discontinuance.  It is clear from those decisions and, in particular, the decision of Moussa of Perram J, and, in particular, I will refer to [13] of that decision:

    Four principles may be distilled from the authorities referred to above:

    1. A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.

    2. It may also be set aside where its filing was procured by fraud or duress.

    3. There is a jurisdiction to set such a notice aside to avoid substantial injustice.

    4. None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.

13. That a notice of discontinuance should only be set aside in very limited circumstances.  This is because the principle of finality of proceedings is an important one.

14. Perram J considered circumstances where the Court might exercise its discretion to set aside a notice of discontinuance and he distilled this into four principles.

15. The first being that a notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.  Certainly, there was no evidence to satisfy me that that applies in this case. 

16. Secondly, that it may also be set aside where its filing was procured by fraud or duress.  For the reasons I have given above, I am not satisfied that those circumstances have been made out in this case.

17. The third is to set aside the notice so as to avoid a substantial injustice.  That may require considering the initial grounds for review and whether or not there is a reasonably arguable case.  In my view, the grounds that the applicant would have to rely on would be the grounds filed in the first set of proceedings. 

18. In that application, the applicant set out three grounds for review.  Having considered those grounds and the decision of the Tribunal, I am not satisfied that any of those grounds raise an arguable case.  The first ground was complaining that the Tribunal failed to consider an integer of his claim.  It seems from the decision record that it is not a claim that the applicant squarely raised.  There certainly is reference to the applicant having spoken about praying to Jesus in church.

19. The second ground was a complaint that the Tribunal had failed to consider his claim of a perceived or imputed political opinion being the brother of an individual who had been involved with the LTTE.  That ground, in particular, is lacking in merit as the Tribunal considered that issue in some detail and gave detailed reasoning as to why it did not accept that the applicant would have such a profile.  It is a case where the Tribunal made significant adverse findings as to credibility.  It was also a matter where the claims that the applicant was making were historical.

20. The third ground was with respect to the Tribunal’s findings as to the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) and that Act being of general application.  The complaint under that ground was that the Tribunal had misinterpreted this because the applicant was claiming that it would be applied selectively to him due to his profile.  The difficulty with that ground is that the Tribunal found that the applicant did not have a profile that would bring him to the attention of the authorities other than simply being a failed asylum seeker. 

21. The fourth principle set out by Perram J in Moussa is that none of these jurisdictions are engaged where a party knowingly and voluntarily files a notice of discontinuance.  I am satisfied that the applicant did knowingly and voluntarily file that notice of discontinuance. 

22. Even if I was satisfied as to one of the principles set out by Perram J – and I should say that I am not – I have a discretion as to whether or not I would set aside the notice.  Given that there are not reasonable prospects of success, then, in my view, it would be pointless to reinstate the application for completeness. 

23. I note that in the second proceedings, the applicant filed different grounds for review.  They are complaints about procedural fairness and failing to take into account relevant considerations.  In my view, the proper application to consider is the first and not the second.  Even if it was to consider the second, that also was not raising grounds that would have a reasonable prospect of success.

24. The applicant’s counsel filed submissions in response to the respondent’s submissions, which were effectively seeking to raise new grounds.  He conceded at the hearing that this is what those submissions were doing.  I refused leave for the applicant to rely on new grounds as entirely inappropriate in this application. 

25. For these reasons, I dismiss the application in a case.

26. The Minister seeks costs, applying not part 3 of schedule 1 of the Federal Circuit Court Rules 2001 (Cth) which provides for costs in migration proceedings but the costs that are applicable in general Federal law proceedings, generally which are covered in part 1 of schedule 1 of the scale of costs. The reasoning for that is because of the unusual nature of this case and the amount of preparation involved in submissions, as well as engaging counsel for this morning’s argument. I certainly find it was reasonable to engage counsel for the application. It is not a common application that is made.

27. The amount sought by the Minister totals $6645.  Most of that is for counsel’s appearance for today as a disbursement – which is proper – which is $4550.  The migration scale for an interlocutory proceedings is $3606.  The applicant says that the usual migration scale should apply.  In my view, given the nature of the application and the fact that it was reasonable to engage counsel for this interlocutory hearing, I find that it is reasonable to order a greater amount than the amount in the schedule. 

28. I order that the applicant pay the sum of $5000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 18 November 2016