MZZIO v Minister for Immigration & Anor
[2014] FCCA 618
•19 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 618 |
| Catchwords: MIGRATION – Application to set aside Notice of Discontinuance refused. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425 |
| Khadri v Minister for Immigration and Border Protection [2014] FCA 91 Maddison v Qualtime Association Inc (2010) 113 ALD 390 SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 SZSML v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1253 |
| Applicant: | MZZIO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 387 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 19 March 2014 |
| Date of Last Submission: | 19 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended “Minister for Immigration and Border Protection”.
The Application in a Case filed 24 February 2014 to set aside the Notice of Discontinuance filed by the Applicant on 3 July 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $1,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 387 of 2013
| MZZIO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
Introduction
This is an application in a case filed on 24 February 2014.
The application seeks an order to ‘reinstate’ the matter. In effect,
the Applicant seeks to set aside the Notice of Discontinuance
(“the Notice”) which he filed on 3 July 2013.
Background
The Applicant filed an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 26 March 2013.
The sole ground for review was that the recommendation of the Tribunal Member was affected by an error of law, in that the Member was not procedurally fair in determining the Applicant was not a person to whom Australia had obligations under the Convention Relating to the Status of Refugees.
The Applicant attended a first court date on 15 May 2013, at which time a timetable for the proceedings was set down. On 3 July 2013,
the Applicant filed the Notice. In an affidavit dated 24 February 2014, and filed in support of this application, the Applicant states:
1. I was in mixed anxiety and depression
2. I have attached my next seccion (sic) of Visiting (sic) the psychologist.[1]
[1] Affidavit filed 24 February 2014, at p.1.
In a statement attached to the affidavit, the Applicant states:
The reason of withdrawing the case was at that time I was in mixed anxiety and depression and also no one can stand with me at the Federal Court.[2]
and, in a second document attached, the Applicant says he was suffering “anxiety and depression and in Sever (sic) financial difficulty”.[3]
[2] Ibid, at p.3.
[3] Ibid, at p.4.
The affidavit also attaches a mental health referral,[4] a K10 Assessment[5] and a GP Mental Health Plan.[6] In his oral submissions, the Applicant stated that he withdrew the application for review[7] because of his housing problems and financial situation. He stated that he could provide evidence about his situation from his counsellor and his church. The Applicant was not aware of his need to do this. At the time he withdrew the application, the Applicant was not legally represented.
[4] Ibid, at p.5.
[5] Ibid, at p.6.
[6] Ibid, at pp.7-9.
[7] Application filed 26 March 2013.
The First Respondent’s submissions
The First Respondent submits, by reference to authorities[8] cited in written submissions,[9] that the Court has a power to set aside a
Notice of Discontinuance, but only in exceptional circumstances.
The First Respondent submits that the present circumstances fall far short of those requirements.
[8] SZFOZ v Minister for Immigrationand Citizenship [2007] FCA 1137; Khadri v Minister for Immigrationand Border Protection [2014] FCA 91; SZSML v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1253; Maddison v Qualtime Association Inc (2010) 113 ALD 390.
[9] First Respondent’s Submissions on the Application in a Case filed 12 March 2014.
There is no evidence that the Notice involved an abuse of process affecting the Applicant, nor is there any evidence that the filing of the Notice was procured by fraud, or was pursuant to, a void or voidable agreement. The evidence is that the Applicant knowingly and voluntarily filed the document himself. This is not a case where the circumstances in which the Notice was filed are such that any failure to set the Notice aside would result in injustice. There is no evidence that the Applicant did not understand the effect of filing the Notice.
His letter attached to his affidavit of 24 February 2013 makes it plain that he intended to withdraw his case.
The First Respondent referred to the Mental Health Plan and submitted that none of the evidence related to the time at which the Notice was filed. Even if it was probative of his state of mind at the time,
the evidence shows that the Applicant’s thinking, perception, cognition, insight, orientation and judgment were all normal. It does not establish any incapacity on the part of the Applicant.
On the First Respondent’s submission, the Applicant considers that he made a bad bargain and seeks to pursue his action which he otherwise compromised. There is no irregularity in the filing of the Notice to justify setting it aside. Further, the First Respondent submits that the application has no reasonable prospect of success.
The sole ground of review alleges a denial of procedural fairness, but provides no particulars. The requirements of procedural fairness are codified in ss.424A and 425 of the Migration Act 1958 (Cth)
(“the Act”). The First Respondent submits that the Tribunal complied with those requirements; the Applicant was invited to attend the hearing before the Tribunal, and he attended and made submissions. The issues before the Tribunal were obvious. They arose out of the reasons given by the delegate who did not accept the Applicant’s claims of persecution.
The Tribunal raised its concerns with the Applicant at the hearing and it relied upon inconsistencies and implausibilities in his own evidence.
The Tribunal affirmed the decision of the delegate because it did not believe his claims. The Tribunal also relied on some country information, but neither the Applicant’s own evidence, nor the country information, constitute information to which s.424A of the Act applies.
Conclusions
On 26 March 2013, the Applicant in lodged an application to review a decision of the Tribunal to refuse him a protection visa. On
3 July 2013, the Applicant, by way of a Notice of Discontinuance, discontinued the proceedings instituted on 26 March 2013. There is nothing to suggest that there was anything irregular about the Notice and it was, therefore, effective to bring his application to an end.
Over six months later, in February 2014, the Applicant filed an application seeking, in effect, to have the Notice set aside by the Court. From my reading of the relevant authorities, it would appear that the following considerations are relevant to the Court’s exercise of its jurisdiction to set aside such a Notice. As pointed out by the
First Respondent, the Court has the power to set aside a notice of discontinuance, but only in exceptional circumstances.
The questions that a Court needs to consider are these:
·Did the applicant knowingly and voluntarily file the notice of discontinuance?
·Was the filing of the notice of discontinuance procured by fraud or duress?
·Was it filed pursuant to a void, or voidable, agreement?
·Did the filing of the notice of discontinuance otherwise involve an abusive process?
·Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
·If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?
There is nothing to suggest that the Applicant was unaware that what he was doing on 3 July 2013 was discontinuing the proceedings.
There is no medical evidence of his state of mind at that time.
The only evidence of a medical nature is contained in a letter dated
20 February 2014, which is a referral to a person, presumably a psychologist, under a Mental Health Plan.[10] The presenting problem is stated as “mixed anxiety and depression”.[11] The K10 Assessment[12] attached to the referral contains an assessment of the Applicant’s thinking, perception, cognition, insight, orientation and judgment as all being normal.
[10] Affidavit filed 24 February 2014, at p.5.
[11] Ibid.
[12] Ibid, at p.6.
There is nothing to suggest that the Applicant’s mental health at the time of the discontinuance was such as to impair his capacity to act voluntarily when he lodged the Notice, nor is there any evidence to suggest that the filing of the Notice was procured by fraud or duress,
or that it was filed pursuant to a void, or voidable, agreement. There is no evidence to suggest that the filing of the Notice was itself an abusive process.
The question then is whether it is necessary to set aside the Notice in order to ensure that the Court’s process does not cause injustice to the Applicant. It needs firstly to be noted that the Court’s discretion to set aside a notice of discontinuance does not extend to circumstances where the Applicant simply made an error of judgment in deciding to discontinue the proceedings.
The Applicant’s material suggests that the decision was made because the Applicant was suffering anxiety and depression and in severe financial difficulty. While these factors may have influenced the Applicant’s decision, they do not suggest some grave injustice would occur if having re-assessed his situation, he was not permitted to reinstate the application. In any event, the originating application alleges only that the decision of the Tribunal involved a procedurally unfair determination by the Member.
There is no specification of the basis upon which the Applicant says he was denied procedural fairness. The requirements of procedural fairness, insofar as they apply to the procedures of the Tribunal,
are contained in ss.424A and 425 of the Act. The Applicant, in this case, was sent a letter by the Department of Immigration and Citizenship enclosing the delegate’s decision, which raised issues about the Applicant’s credibility with respect to the claims made by him.
Following his application for review, the Applicant was invited to attend a hearing by the Tribunal to give evidence and present argument relating to those issues.
The Applicant was assisted by a representative who made written submissions on his behalf prior to the hearing. At the hearing,
the Tribunal put to the Applicant inconsistencies in his evidence and gave him the opportunity to respond. The Applicant was assisted by an interpreter and accompanied by his representative who made certain submissions on his behalf. The hearing was held on 8 August 2012 and the Applicant was given until 24 August 2012 to make post-hearing submissions.
The information relied upon by the Tribunal in making its decision consisted of evidence provided by the Applicant himself and country information which was not specific to the Applicant. Neither of these types of information attracts the provisions of s.424A of the Act.
There is nothing in the process adopted by the Tribunal which would raise an arguable case that the Tribunal failed to comply with the provisions of ss.424A or 425 of the Act.
On that basis, I am satisfied that the application would not have any prospect of success. For those reasons, I dismiss the application to set aside the Notice.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 28 March 2014
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