MZAER v Minister for Immigration
[2016] FCCA 782
•17 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAER v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 782 |
| Catchwords: MIGRATION – Application to reinstate an application to extend time to bring substantive application – abuse of process – no merit – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Bailey v Maronoff (1971) 125 CLR 529 SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137 at 17 |
| Applicant: | MZAER |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2305 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 29 March 2016 |
| Date of Last Submission: | 29 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gordon |
| Solicitors for the Applicant: | Ronald Gordon Barrister & Solicitor |
| Counsel for the Respondent: | Mr Hibbard |
| Solicitors for the Respondent: | Clayton UTZ |
ORDERS
That the application in a case dated 29 July 2015 be dismissed.
That the applicant pay the first respondent’s costs of $2262.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2305 of 2014
| MZAER |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application is convoluted in its history. The application now before me is one to reinstate an application which itself sought to extend time in relation to a substantive application.
The applicant is now represented by Mr Gordon, solicitor, and relies on his own affidavit sworn 26 October 2015, which deals with the applicant’s failure to attend court on 28 July 2015 on the hearing of his application for extension of time. The circumstances around this date are complicated and confusing. It is suffice to say that there were communications between Victoria Legal Aid (then assisting the applicant) and the first respondent’s solicitors. It appears that a date and/or time for the hearing was changed and that the applicant came to court on 28 July 2015 in the afternoon when the hearing had been listed in the morning and hence his application was dismissed.
On the balance of probabilities, I can be satisfied that the applicant did attend court on 28 July 2015 and, despite some evidentiary queries and issues of credit, I am prepared to accept that there was a climate of some confusion and miscommunication to the applicant. His explanation was a plausible one and I accept it as being reasonable.
The application to extend time is also problematic in that it results from a prior substantive application that was discontinued by the applicant in order to pursue an option of ministerial intervention. The application for an extension of time now emanates from a second and separate application for judicial review. That is, the applicant has not sought to discharge his notice of continuance. Rather, he has brought a second and later application.
The applicant’s argument is summarised, therefore, as him having a reasonable explanation for his nonattendance at the last court event and, secondly, that he requires an extension of time on his second application because he first sought ministerial intervention. His explanation for discontinuing his first application to this Court is that he had already applied to the Minister and that he understood it to be an abuse of process to be concurrently pursuing redress from two sources.
The first respondent mounts two discrete arguments against the current reinstatement application. Firstly, counsel argues that the bringing of the second application for judicial review after a first application had been voluntarily discontinued amounts to an abuse of process warranting summary dismissal.
The record shows that the applicant’s first application was discontinued on 6 August 2014. He filed his second application on 14 November 2014. Counsel for the first 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 standards should apply and the application is therefore an abuse of process.
In SZFOZ v Minister for Immigration and Citizenship & Anor[1] 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 Rule 13.01. That accords with the traditional understanding of the effect of discontinuance…
[1] [2007 FCA 1137 at [17]
And at [18] his Honour continues:
Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside…
In considering the reinstatement of a proceeding, the High Court in Bailey v Maronoff[2] has stated the following:
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 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.
[2] (1971) 125 CLR 529 (per Barwick CJ)
Despite the strict approach of the High Court in Bailey (supra), Judge Driver in SZSML v Minister for Immigration and Anor[3] found that the Court has an inherent power to set aside a Notice of Discontinuance in exceptional circumstances and in order to prevent an injustice or an abuse of process and supported by the Federal Court decision in Applicant A26 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs[4] where Mansfield J, dealing with a Notice of Discontinuance filed by a former solicitor of the applicant and without the applicant’s knowledge or consent, enlivened the Court’s inherent discretionary power to prevent an injustice. At [2] and [5] his Honour observed:
(2) Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings. It is, however, permitted only if it does not amount to an abuse of process…
(5) In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out. Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context. It was accepted by the respondent that the allegations, if made out, fell within its reach.
[3] [2013] FCCA 1253
[4] [2003] FCA 1050
Further, Ross J in Khadri v Minister for Immigration and Border Protection & Anor[5] found:
In my view, it was plainly open to his Honour to dismiss the application in the exercise of his discretion and he made no error in doing so. The applicant had knowingly and voluntarily filed a Notice of Discontinuance of the judicial review proceedings. There was no evidence that the Notice of Discontinuance had been procured by fraud or duress or that it was done without the applicant’s knowledge or consent. In such circumstances, it was undoubtedly the correct course to reject the application to set aside the Notice of Discontinuance.
[5] [2014] FCA 91 – at [16]
In the matter before me, however, there is no application to set aside the Notice of Discontinuance. Rather, this applicant has simply filed a second application seeking the same remedy in respect of the same subject matter. I see no reason to make distinction in respect of the above principles and their bases.
There is no suggestion of fraud or duress in the filing of the Notice of Discontinuance. That Notice of Discontinuance otherwise deals with and finalises the application. It is simply then impermissible to contemplate further applications in respect of the same issue, seeking the same remedy. It follows that I accept the submissions of counsel for the first respondent that the second application represents an abuse of process and should be dismissed.
If I am incorrect in my findings above then I consider the second argument put by counsel for the first respondent being in respect of the merits of the application. That application is, firstly, one to extend time in circumstances where the applicant chose an option of ministerial intervention rather than judicial review. A consistent line of authority suggests that an applicant makes such a preference at his peril in respect of the time limits applicable to applications to this Court for judicial review.
That position is succinctly put by Jessup J in Vu v Minister for Immigration and Citizenship[6] where his Honour, at [29] says:
I do not think that the applicant’s approach to the Minister under S351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under S351 proved unsuccessful.
[6] [2008 FCA 59]
I am not, therefore, satisfied that this applicant has provided a satisfactory excuse or reason for the delay in bringing his application to this Court.
An application to extend time causes me to consider the relative prejudices to the parties of either granting or not granting the extension. The prejudice to the applicant is obvious in that he will be denied his right to argue any error in the Tribunal and, ultimately, his anticipated visa. This is, however, only one factor to be weighed and balanced with the other considerations. Further, it is also proper to consider that all litigants, including the Minister, have the right to prudent disposition of applications and it is perhaps for this reason that time limits apply. Considerations of the public purse are also relevant.
I am also to consider the merits of the substantive application itself. Two grounds of complaint are set out in the application. Firstly, that the Tribunal did not afford the applicant procedural fairness and secondly, that the Tribunal applied the wrong legal tests.
The Court was not assisted by written submissions from the applicant. He did, however, instruct Mr Gordon only shortly prior to the hearing before this Court and Mr Gordon provided oral submissions. Further, the applicant did file an affidavit which gives some detail to his matters of complaint.
Firstly, I understand the applicant’s argument to be that the Tribunal concluded him to be an insignificant member of a political party, whereas he says that he required protection by reason of that membership and that he put sufficient evidence before the Tribunal to elicit such a finding. Such an argument can only go to the merits of the Tribunal’s decision, and without argument as to the Tribunal not considering particularised material or considering irrelevant material, no jurisdictional error is evident. It follows that I find no merit in this ground of the substantive application.
Counsel for the applicant, in oral submissions, attempted to broaden the second ground of complaint to include that the decision of the Tribunal was unreasonable or illogical or, alternatively, that the Tribunal placed too much emphasis of evidentiary inconsistencies. Again, such an argument was put only in the most general of terms and, in my opinion, veiled what was really a general quarrel with the Tribunal’s assessment of the evidence which, of course, is the very function of the Tribunal.
Conclusions
Consequently, I firstly find that the bringing of a second application by this applicant constitutes an abuse of process and of itself causes me to dismiss the application. Secondly, I find that the application to extend time should be dismissed. I am not persuaded by the reasons for the applicant’s delay in bringing his application. I find no merit in the substantive application. For these reasons, the application to extend time would be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 17 May 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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