MZAOE v Minister for Immigration

[2016] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAOE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 609

Catchwords:
MIGRATION – Application to reinstate application withdrawn by Notice of Discontinuance filed by applicant’s lawyer – application doomed to fail in any event – application dismissed.

Legislation:

Migration Act 1958, s.412(1)(b)

Migration Regulations 1994, r.4.31

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

Applicant: MZAOE

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2403 of 2014

Judgment of: Judge Burchardt

Hearing date: 22 January 2016 & 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Melbourne

Delivered on: 31 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Not indicated

Counsel for the First Respondent: Mr Young

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application to reinstate the Application originally filed on

   
   

   27 November 2014, and discontinued on 21 October 2015, be dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2403 of 2014

MZAOE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his Application lodged on 12 January 2016, the Applicant seeks that his Application filed on 27 November 2014 and discontinued on

   
   

   21 October 2015 be reinstated.  The Affidavit in support filed contemporaneously asserts that the Applicant, being a Tamil from

   
   

   Sri Lanka, does not read, write or speak English.  It asserts further that he received a negative decision from the Department of Immigration regarding his Application for a refugee protection visa, upon which

   
   

   he instructed his then lawyers, RAILS, to file “an appeal to the Refugee Review Tribunal” and that he was told by RAILS that such appeal had been filed.

2. He was then subsequently informed that the Refugee Review Tribunal (“Tribunal”) rejected his Application for want of jurisdiction and that in due course he contacted the ASRC, which advised him that he had good grounds for appeal.  The Affidavit asserts at paragraphs 12-13:

   “12.  Later ASRC lawyer Brendan McCarthy advised me that

   
   

   I had to withdraw and discontinue my application filed in the Federal Circuit Court.  He did not explain to me why but just prepared a notice of discontinuance on my behalf and signed

   
   

   it on my behalf and filed.  I did not agree to the filing of the notice of discontinuance in this matter/proceedings.

   13.  At all times I wanted to proceed with my Application filed

   
   

   in these proceedings as at all times I was advised that I had merits and good grounds for my application.”

3. The Affidavit goes on to assert that the Applicant sought that his Application be reinstated and heard.

4. In order to understand the Application, it is appropriate to peruse the materials in the Court Book (“CB”).  It is clear from the materials

   
   

   in the CB that the applicant was relevantly represented by the Refugee and Immigration Legal Service Inc (“RAILS”) from an early stage.  The Applicant is a Sri Lankan Tamil, whose claims of possible persecution related to a friend who was known to be an LTTE cadre member (CB23).  The Applicant’s other claims were essentially generic to being a Tamil in Sri Lanka.

5. A delegate of the First Respondent rejected the Applicant’s claim

   
   

   for Refugee Convention protection and the reasons for that are

   
   

   at CB112-129.  It is sufficient to say that the delegate did not believe the Applicant.  The delegate found (CB117):

   “… the applicant’s account of these events to be highly inconsistent with his statement of claims, and he appeared at his PV interview to be struggling with many of the fundamental details of his story.”

   The delegate’s decision is dated 3 January 2014.

6. On 12 March 2014 (CB131-146) RAILS sent a detailed set of submissions to the Tribunal on behalf of the Applicant.  On 13 March 2014, the solicitor having conduct of the matter on behalf of the Applicant wrote to the Tribunal (CB147).  She asserted that a facsimile of the Applicant’s Application was sent to the Tribunal on 3 February 2014 and referred to an attached fax log report.  The letter noted that the solicitor had received a phone call on 13 March 2014 that the Registry had no record of the appeal application and asserted that this might be an administrative error on the part of the Tribunal.  The Application for review to the Tribunal, a copy of which was apparently annexed to that letter, is at CB149-159 and shows that the Applicant signed the Application for review on 3 February 2014.  From the materials in the CB the position articulated by the Tribunal at that time was that the relevant Application had simply not been received.

7. On 16 May 2014 the Tribunal gave its decision which recorded that there was no jurisdiction to entertain the claim (CB169-170). 

   
   

   The decision noted that the decision subject of review was dated

   
   

   3 January 2014. The review Application was lodged with the Tribunal on 12 March 2014. Pursuant to s.412(1)(b) of the Migration Act 1958 (“the Act”) and r.4.31 of the Migration Regulations 1994

   
   

   (“the Regulations”), an Application for review would need to have been made within 28 days after the Applicant was notified of the decision.  The Tribunal noted that, although it had been claimed the Application was faxed to the Tribunal on 3 February 2014, a search

   
   

   of the Tribunal’s fax server log showed no record of the fax being received on that date.  The Tribunal went on to find that the Application was out of time and, therefore, that it had no jurisdiction

   
   

   to entertain the matter.

8. On 25 November 2014 the Applicant swore an Affidavit (CB179-181).  He swore that he was seeking a review of the decision of the Tribunal and deposed to reasons why he had failed to file an Application for an extension of time to review the matter before the Court.  I note that

   
   

   at paragraph 6 he deposed:

   “… On the 2 June 2014, I received a letter from my lawyer, Sandra Gould, at the Refugee and Immigration Legal Service (RAILS) concerning this negative decision, informing me that RAILS would be closing my file and that the Department of Immigration will begin to make arrangements for my return to Sri Lanka.”

9. I further note that at paragraph 10 the Applicant deposed:

   “Approximately 1 more week after my communications with the Tribunal officer, Sandra Gould contacted me.  I believe this call was made at a date after the deadline for the FCC application (24 June 2014).  Sandra advised me that I had no option but to return to Sri Lanka.  She advised that no useful purpose would be served by applying to the Federal Circuit Court as there were insufficient grounds for my claim.  She also gave me advice that, if I applied to the Federal Circuit Court, I would not be granted a visa.  On the basis of this advice I was further discouraged from lodging an application to the FCC.”

10. Thereafter, as earlier indicated, a Notice of Discontinuance was filed on 21 October 2015 by the Applicant’s lawyer.

11. On 30 June 2015, Mr Grant Nicholas, then the acting Director

    
    

    of Technology Services of the Sydney office of the Migration Review Tribunal and Refugee Tribunal deposed as to various matters.  It is sufficient to say that, on its face, the affidavit proves beyond any doubt that the Tribunal did not receive any facsimile transmission from RAILS on 3 February 2014.  No request has been made to have Mr Nicholas appear before the Court for cross-examination and counsel for the Applicant in effect conceded that his Affidavit was unchallengeable.

12. Thus, while it is highly possible that RAILS did, indeed, fax,

    
    

    or attempt to fax, the Applicant’s Application to the Tribunal on

    
    

    3 February 2014, it is clear that it was not received by the Tribunal

    
    

    at that time and, indeed, until 12 March 2014.

13. In these circumstances, it would seem incontrovertible that the Tribunal’s original decision given in 2014 was correct.

14. Thus, when coming to consider whether or not the Application presently before the Court should be granted, it is important to note that the challenge to the Tribunal’s decision as originally given was effectively, on its face, hopeless.

15. When the matter came before the Court on 22 January 2016

    
    

    I adjourned until 2 February 2016 to give the Applicant’s recently appointed representative a proper opportunity to study the materials

    
    

    on the Court file and in the CB and to prepare argument.  To his credit, counsel conceded there was but little he could say when the matter was before the Court.

16. Counsel for the First Respondent took the Court to the decision

    
    

    of Perram J in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280. His Honour said at [13]:

    “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.”

17. Here, from the Applicant’s Affidavit filed 12 January 2016, it is apparent that the Notice of Discontinuance was filed by the Applicant’s lawyer with his knowledge.  Even accepting, as I am prepared to do in the Applicant’s favour, that he did not understand a word that

    
    

    Mr McCarthy may have said to him (there is no information in the Affidavit suggesting that Mr McCarthy and the Applicant spoke through an interpreter but I assume they must have done), the fact is that the Notice of Discontinuance was filed to the Applicant’s knowledge.  Furthermore, the Applicant’s assertion at paragraph 13

    
    

    of his Affidavit filed 12 January 2016 that “at all times I was advised that I had merits and good grounds for my application”, is clearly untrue.  The lawyer from RAILS had told the Applicant, in terms, that his Application had no chance of success.

18. In the circumstances, there is simply no utility, even if all other matters were to be regarded favourably to the Applicant (which I do not think they are), to reinstating the Application.  His Application was hopelessly out of time and doomed to fail before the Tribunal.

19. In all the circumstances, it is clear that the Court should not exercise its jurisdiction to reinstate the Application.  The Application will be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 31 March 2016