Singh v Minister for Immigration
[2017] FCCA 2709
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2709 |
| Catchwords: MIGRATION – Student visa application – certificate by education provider of unsatisfactory course progress – repeated adjournments – refusal of application by delegate – decision affirmed by Migration Review Tribunal – decision affirmed by Federal Circuit Court – application for extension of time for leave to appeal dismissed by Federal Court of Australia – commencement of further application in Federal Circuit Court – non-disclosure of earlier proceedings in relation to earlier judicial review proceedings – show cause – summary dismissal of proceeding – consideration of principles relevant to incompetency of a proceeding – application dismissed as incompetent. |
| Legislation: Federal Circuit Court of Australia Act 1999(Cth), s.17A |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] 241 FCR 30 |
| Applicant: | LAKHBIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 729 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| The Applicant: | Appearing on his own behalf |
| Counsel for the First Respondent: | Ms McInnes |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Second Respondent: | Filed a submitting appearance |
ORDERS
The application filed 11 April 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 729 of 2016
| LAKHBIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 March 2017, I made orders that this application be dismissed. I have found that the proceeding was incompetent by reason of the applicants failure to disclose to the court, at the time when he commenced this proceeding, that there had been two earlier judicial review proceedings. The non-disclosure at that time of those earlier judicial review proceedings contravened s 486D of the Migration Act 1958 (Cth) (Act). My reasons follow.
Background
The applicant, a citizen of India, arrived in Australia on 28 March 2008 holding a student visa. On 1 June 2010, he was granted a further student visa which remained valid until 10 September 2012.
On 30 June 2011, the applicant’s education provider notified the Provider Registration and International Student System that the applicant had been assessed for unsatisfactory course progress.
On 9 September 2011, the applicant applied for a Student (Temporary) (Class TU) visa.
Section 65 of the Act prescribes the criteria upon which the Minister shall grant or refuse a visa application.
On 21 October 2011, a delegate of the first respondent (Minister) refused the student visa application. The application was refused on the basis that the applicant had not substantially complied with the conditions of his visa in that he had not achieved satisfactory academic course attendance or progress: Migration Regulations 1994 (Cth) (Regulations), sub-cl 572-235; condition 8202(3)(b).
The applicant sought a merits review of the delegate’s decision from the Migration Review Tribunal (Tribunal).
On 29 May 2013, the applicant was invited to attend before the Tribunal to give evidence and make submissions in relation to issues arising in connection with the delegate’s decision. The Tribunal hearing was fixed for 24 June 2013 at 9.30am. The Tribunal requested that the applicant provide at the hearing those documents which he considered to be relevant to the review including the notice he had been sent by his education provider (certifying that he had not achieved satisfactory progress in his course), a certificate of his enrolment in his course and his passport. The Tribunal provided the applicant with extracts of the relevant migration regulations.
The applicant did not appear at the Tribunal hearing on 24 June 2013. However, at 10.14am on that day, the applicant transmitted a fax to the Tribunal attaching a letter stating that, “I will not be able to attend my MRT hearing scheduled today due my ill health. I will appreciate if I could seek an extension for my MRT hearing.” Also attached was a medical certificate dated 19 June 2013 which certified that the applicant was unfit to attend his usual occupation by reason that he was “receiving medical treatment for the period from 19/06/13 to 26/06/13.” The certificate did not disclose the nature of the condition for which he was receiving treatment. Also attached was a pathology request for a “full blood count.” There was no suggestion in this material that the applicant was being admitted to hospital.
On 27 June 2013, the applicant was invited to attend before the Tribunal to give evidence and make submissions in relation to issues arising in connection with the delegate’s decision. The Tribunal hearing was fixed for 10 July 2013 at 9.30am.
The applicant did not appear at the Tribunal hearing on 10 July 2013. At 11.25am that day, the applicant sent an email to the Tribunal stating that “I am writing in relation to the request to appear before the Tribunal, I wish to inform you that I am currently out of the country to visit my father who is sick in India for 25 days. I would like an extension of my MRT hearing.” Attached to that email was: (1) a travel itinerary which stated the applicant had booked a flight to Delhi on 8 July 2013 and that he was scheduled to return to Australia on 15 August 2013; (2) a medical certificate relating to his father’s illness.
On 25 July 2013, the applicant was again invited to attend before the Tribunal at a further hearing that was fixed for 26 August 2013.
Again, the applicant did not appear at the Tribunal hearing.
On 27 August 2013, that Tribunal affirmed the decision under review. The substantive basis on which the Tribunal grounded its decision was that there was no evidence that the applicant was enrolled, or had a current offer of enrolment, in any applicable course of study.
By two letters, each dated 28 August 2013, the Tribunal notified the applicant and his migration agent of the Tribunal’s decision affirming the delegate’s decision to refuse the student visa application.
On 6 September 2013, the applicant’s migration agent transmitted an email to the Tribunal attaching certain certificates and stating:
Please be advised that sue (sic) to some urgent medical issues my client needs to fly offshore last night. In that case I hereby request you to please provide an extension until he returns back. I will forward you the medical reports once received.
Documents attached to that letter indicated that the applicant had flown from Melbourne to Delhi on 25 August 2013 and was scheduled to take a return flight from Delhi to Melbourne on 29 September 2013. Also attached was a medical certificate dated 26 August 2013 which stated that Jagir Singh had been admitted to the SBS Memorial General and Eye Hospital in Taran, Punjab, India. The certificate stated:
This is to certify that Jagir Singh . . . is admitted for cellutitis RT Leg with high fever and is admitted on 23 August 2013.
By letter dated 12 September 2013, the Tribunal responded to the email from the applicant’s migration agent. The Tribunal stated that it had made its decision in the case on 27 August 2013, was functus officio, and it had no power to take any further action on the review.
On 23 September 2013, the applicant filed an application in this court seeking an order that the decision of the Tribunal made on 27 August 2013 be quashed (first application).
The first application was listed for directions on 20 November 2013 and fixed for hearing on 22 May 2014. Directions were made for the filing of contentions of fact and law. The applicant filed no contentions.
The applicant did not attend at the hearing of the first application. Instead, he sent an email to the court advising that he was feeling unwell and sought a new hearing date. He attached a medical certificate stating that he was “receiving medical treatment for the period from 20/05/13 to 24/05/14.” The court treated that email as constituting an informal application for an adjournment.
On 22 May 2014, the first application was dismissed with costs.
The first application was dismissed on the basis that the applicant's certificate was not sufficient to explain his absence at the hearing and did not adequately found an application for an adjournment. The court applied authority supporting a conclusion that the content of a medical certificate in any particular case may be insufficient to ground an adjournment: Singh v Minister for Immigration [2004] FCCA 1411, [9] citing NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559.
On 17 June 2014, the applicant filed in the Federal Court of Australia an application for an extension of time within which to file a notice of appeal from that decision of the Federal Circuit Court of Australia.
On 29 August 2014, the Federal Court dismissed that application: Singh v Minister for Immigration & Border Protection [2014] FCA 937 (Collier J). Her Honour examined the history of the visa application, the delegate’s decision, the Tribunal decision made on 27 August 2013 and the first application. Collier J observed that the decision of the Federal Circuit Court was well supported by authority: [2014] FCA 937, [30] citing NALM, supra; NAKX, supra; SZNRO v Minister for Immigration and Citizenship [2010] FCA 137 and SZSPR v Minister for Immigration and Citizenship [2013] FCA 1210.
Collier J concluded that no error attended the exercise of discretion in refusing the applicant’s request for an adjournment and that the proposed appeal was devoid of merit. Being unable to detect any error in the decision of the court below (or any jurisdictional error of the Tribunal), the application was dismissed: [2014] FCA 937, [31]-[34].
Procedural History
Some 20 months after the dismissal of the Federal Court proceeding, on 11 April 2016, the applicant filed a further application in this court. The applicant again sought an order that the decision of the Tribunal made on 27 August 2013 be quashed. On 11 April 2016 the applicant also affirmed an affidavit in support, exhibiting a copy of the Tribunal’s decision made on 27 August 2013.
By his application, the applicant sought an order extending the time for the filing of his application pursuant to s 477 of the Act.
The further application contained no information in relation to the first application or details relating to the dismissal of the application to the Federal Court for an extension of time for leave to appeal.
By an amended response filed on 8 June 2016, the first respondent contended that the proceeding should be dismissed. The Minister sought that the application for an extension of time be listed for hearing as soon as practicable.
The amended response also objected that the application was incompetent. It did so on the stated basis that:
There have been other judicial review proceedings in relation to the decision. By not disclosing details of earlier judicial review proceedings in his application the applicant has not complied with subsection 486D(1) of the Migration Act 1958.
On 31 August 2016, orders were made regulating the interlocutory steps in this proceeding for trial. The orders made on that date required the applicant to file and serve, by 5 October 2016, any amended application (with proper particulars of the grounds of application), a supplementary court book (if any) and written submissions. By those orders, the proceeding was fixed for a show cause hearing on 15 March 2017: pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules). Those orders were made by consent.
The applicant did not file any amended application, supplementary court book or written submissions.
The Minister’s outline of submissions provided an analysis of the matter including the circumstances of the applicant, the decision of the delegate and the Tribunal together with the institution and dismissal of proceedings in this court and in the Federal Court. The Minister foreshadowed an application for summary judgment.
On 6 December 2016, the Minister filed an application in a case by which summary dismissal of the proceeding was sought pursuant to r 13.10(a) of the Rules. The application was supported by an affidavit affirmed on 6 December 2016, which deposed to certain of the history of the matter, including the unsuccessful applications to the Tribunal, the Federal Circuit Court and the Federal Court.
Consideration
Approach to this application
The applicant was self represented at the hearing before me and, as noted above, did not file any submissions. He appeared with the assistance of an interpreter. I have assumed that he was unfamiliar with court processes: cf AMF15 vMinister for Immigration and Border Protection [2016] 241 FCR 30, [44(g)]; Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21, [11]-[15] (Spender J, Branson and Stone JJ agreeing).
The Minister’s substantive objection was that the proceeding is incompetent by reason of an alleged failure to comply with s 486D in that, when the proceeding was commenced, the applicant did not disclose earlier judicial review proceedings brought by the same person in this or another court in relation to the decision under review.
The court analysed and considered for itself the competing arguments in relation to this application.
Summary judgment & show cause hearings
On the face of the application, the relief sought by the applicant was for an order that the respondents show cause why a remedy ought not be granted in respect of the Tribunal’s decision affirming the delegate’s decision to refuse the visa application: r 44.05. It will also be recalled that on 31 August 2016, the proceeding was fixed for a show cause hearing: r 44.12.
Rule 44.12(1) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or otherwise to make final orders in relation to the claims for relief. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2).
The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 593, [10] (Smith J).
In SZUTB, supra, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: [2015] FCCA 593, [12]-[16] citing Siddique v Minister for Immigration & Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration & Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the Court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” Both components fall to be considered.
In addition, the Minister filed an application in a case seeking relief by way of summary judgment in the proceeding: r 13.07.
The principles relating to summary judgment are well settled.
44.Section 17A(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.07 of the Federal Circuit Court Rules2001 (Cth) authorise the court to give summary judgment on a claim generally or in relation to any part of a claim where it is satisfied that the opposing party has no reasonable prospect of successfullydefending the claim in whole or part. The rule is engaged where: (a) there is evidence of the facts on which the claim is based and; (b)(i) evidence is given that the opposing party has no answer to the claim; (ii) alternatively, the court must otherwise be satisfied that the opposing party has no reasonable prospect of successfully defending the claim: see r 13.07(1).
It is clear that caution must be exercised when considering whether to grant summary judgment. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, the power is not engaged unless the court is satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfullyprosecuting the proceeding or claim.
In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, Perram, Jagot and Beach JJ considered the applicable principles not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power given to grant summary judgment;
see [2016] FCAFC 158, at [46]-[49]. The propositions stated above in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey[2017] FCA 1136, [15] (Kenny J).
I apply those principles in determining this application.
Where the requirements of r 13.07(1) are satisfied, the court may give judgment or make any order or directions that it considers appropriate: r 13.07(2). In common with the principles applicable to a show cause hearing, the determination of an application for summary judgment also entails consideration whether, as a matter of discretion, the court should grant or refuse summary judgment.
I approached the hearing before me on the basis that both the show cause hearing and the application for summary judgment were before me. It is convenient to consider those applications at the one time.
Competence of a proceeding
The legal connotation of the term ‘incompetent’ draws its meaning from the particular context. For example, an appeal may be dismissed as incompetent because the grounds stated in the notice of appeal are incomprehensible (in this context, an analogy may be drawn with a pleading which discloses no cause of action). An appeal may be also dismissed as incompetent because the stated grounds of appeal relate solely to interlocutory orders for which leave has not been obtained.
The principle was applied in Jackson v Health Services Union [2015] FCAFC 188, where Jessup, Griffiths and White JJ held at [54] that:
The appeals in respect of these interlocutory matters are incompetent because, at the time the notices of appeal were filed, Ms Jackson had neither sought nor obtained leave to appeal in respect of them. . . Necessarily, therefore, the appeals are incompetent in their entirety.
The reasoning illustrates that it was fatal to the competency of the appeal that the notices of appeal specified no grounds of appeal other than in respect of interlocutory orders with the result that, leave having not been sought or obtained, the appeal was incompetent. As the Full court observed, the appeal was incompetent because such leave had not been obtained at the time that the notice of appeal was filed.
In other contexts, it may be an open question whether a proceeding is incompetent: cf Haritosv Commissioner of Taxation [2015] FCAFC 92, [60]-[65], [97], [141]-[143] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).
In a case such as the present, an objection to competency is an objection that an application cannot proceed because the law does not allow it to: McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10, [6] (Black CJ, Stone and Young JJ); see also, Zegarac v Dellios [2007] FCAFC 58 at [11], (Jessup J).
As the authorities below indicate, in a case to which s 486D applies, a determination that the application was commenced in disregard of the requirements of that section renders the application incompetent for want of compliance with those requirements. Such incompetence has the effect that the court has no jurisdiction to hear or determine the application because it has no authority to deal with it. Having no authority to deal with the application, the court cannot entertain consideration of whether grounds are made out for relief under s 476. Where these principles apply, a proceeding must fail in limine.
Disclosure of prior proceedings – s 486D
Part 8A of the Act concerns the subject, Restrictions on Court proceedings, and is comprised of ss 486A – 486D. Sections 486A – 486C are not relevant. Sub-section 486D(1) reads:
A person must not commence a proceeding in the Federal Circuit Court in relation to a Tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in that or any other Court in relation to that decision.
Sub-sections 486D(2)-(3) contain analogue provisions obliging an applicant to make like disclosure to the Federal Court of Australia and the High Court of Australia respectively.
The expressions ‘judicial review proceeding’ and ‘Tribunal decision’ are defined by sub-s 486D(5). Relevantly, sub-s 486D(5) defines:
(a)judicial review proceeding as a proceeding in:
(i)the Federal Circuit Court in relation to the Tribunal decision;
(ii)the Federal Court seeking the exercise of the Court’s original jurisdiction in relation to the Tribunal decision; . . .
(b)Tribunal decision as meaning a privative clause decision or a purported privative clause decision, made on review, “by the Tribunal under Part 5 . . .”
The expression ‘privative clause decision’ is defined by sub-s 474(2). The expression ‘purported privative clause decision’ is defined by sub-s 5E(1).
Section 486D was inserted in Part 8A by the Migration Litigation Reform Act 2005 (Cth) (2005 Act), Schedule 1, Item 37. The 2005 Act also effected amendments to the Federal Court of Australia Act 1976 and the Federal Magistrates Act 1999 so as to insert power to grant summary judgment. The 2005 Act also inserted provisions defining and limiting jurisdiction with respect to migration decisions. It also introduced time limits within which applications might be made to those courts. From a broad perspective it may be seen that the 2005 Act introduced provisions having a purpose of enabling courts to address unmeritorious claims with a greater level of efficiency and to enable courts to identify more readily those persons whose visa applications had been refused (and in respect of whom such refusal had been affirmed by an earlier judicial review proceeding).
Section 486D is given retrospective operation by sub-s 486D(4).
The consequences of non-compliance with sub-s 486D(1) are not expressed by the text of that provision or elsewhere in Part 8A.
In SZBDL v MIMA, [2007] HCATrans 13, Kirby and Callinan JJ endorsed a submission by the Minister in that application for special leave to appeal that the applicant had there failed to disclose all prior proceedings in respect of the decision under review. In doing so, their Honours did not explicitly address the consequences of such failure, instead concluding that the application was doomed to fail.
Again, in Plaintiff S3/2013 v Minister for Immigration and Citizenship, [2013] HCA 22, [15], Gageler J noted, but found it unnecessary to consider, the consequences of non-compliance with s 486D.
Section 486D has been cited (but not yet considered) by the Federal Court on four occasions: see Cayzer v Minister for Immigration and Border Protection [2017] FCA 1189 (Kerr J); Sagoa v Minister for Immigration and Border Protection[2017] FCA 1044 (Pagone J); MZADF v Minister for Immigration and Border Protection [2017] FCA 160 (McKerracher J); BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 (Rangiah J).
The decisions which examine the consequences of non-compliance with sub-s 486D(1) appear to be confined to this court. While many of those decisions have considered the section, I note the following.
In SZKUT v Minister for Immigration [2008] FMCA 241, Smith J addressed an objection to the competency of a proceeding based on a failure to observe the requirements of s 486D. His Honour upheld the objection, concluding that he was required to dismiss the proceeding as incompetent. In so doing, Smith J had occasion to address the nature of the requirements of s 486D and whether a defect in the application – constituted by a failure to disclose the fact of prior proceedings – rendered incompetent the proceeding when commenced. His Honour identified two earlier authorities of this court which had held that such failure would render incompetent a proceeding commenced without making disclosure in compliance with s 486D and, not being persuaded that those decisions were incorrect, followed them. Smith J considered that the jurisdictional nature of s 486D emerged from the language and context of the section and also from the purpose of the amending legislation that inserted it (see above): [2008] FMCA 241, [12]-[14].
Smith J reasoned that the absence of an express sanction in the section suggested that, “compliance was intended to be a matter going to the competency of the application”: [2008] FMCA 241, [14]. His Honour postulated the test whether the court should be satisfied that the earlier proceeding was one which was “already brought by the person”, a phrase which Smith J held should be strictly construed (such that the earlier proceeding must have been brought by or on behalf of that person and with that persons approval and authority): ibid, [15]. The analysis in SZKUT is, in my respectful opinion, persuasive.
In Joshi v Minister for Immigration, Nicholls J applied earlier authorities in holding that a want of compliance with s 486D rendered a proceeding incompetent: [2016] FCCA 2168, [18]-[34].
More recently, in Singh v Minister for Immigration [2017] FCCA 223, Dowdy J upheld an objection to competency for want of compliance with s 486D. His Honour reasoned that the first duty of the court was to be satisfied of its jurisdiction: at [24] citing Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174, [32] (Allsop CJ, Katzman and Gleeson JJ). Dowdy J applied earlier authority in this court holding that “compliance with the disclosure requirements of s 486D was a condition and prerequisite to the valid filing and legal effectiveness of an application to this Court under s 476”: [33].
These authorities appear to me correct and I follow them.
The decision of the Tribunal in this case was a Tribunal decision within the meaning of sub-s 486(5). The first proceeding and the proceeding before Collier J were judicial review proceedings within the meaning of that provision. Each of these proceedings was a review of a Part 5 – Reviewable Decision.
Consequently, sub-s 486D(1) was engaged.
A person who wants to make an application for the review of a migration decision must file an application in accordance with an approved form: r 4.01(1); cf r 31-22, Federal Court Rules 2011. As strict compliance is required of the conditions which regulate the initiation of an application for review of a migration decision, a failure to do so may carry the consequence that the applicant has failed properly to make an application so as to engage the jurisdiction of the court. This will entail consideration whether an act done in breach of such requirements should be treated as invalid: SZJDS v Minister of Immigration and Citizenship and Anor [2012] FCAFC 27, [33].
The objection to competency was grounded upon the applicants non-disclosure in the application by which the proceeding was commenced of his judicial review proceedings. In particular, at page 4 of the application is a section concerning the existence of earlier proceedings. The application, which is a standard form document, contains a direction to the applicant that stated in part:
Other Court proceedings (This section must be completed if the applicant has made a previous application or applications to a Court to review the decision – see section 486D of the Migration Act 1958.)
At the margin then follow various entries which allow for details of earlier applications to be provided by an applicant.
In this case, the application, signed by the applicant on 11 April 2016, contained no information in relation to the applicant’s earlier application to the Federal Circuit Court or to his application for an extension of time for leave to appeal to the Federal Court of Australia.
However, I do not read that section of the application divorced from the remainder of the document. Had the application otherwise contained information from which the reader could discern that the applicant had, in substance, complied with the requirements of s 486D(1) by disclosing the fact of earlier judicial review proceedings, a question may have arisen whether a mere want of form rendered the proceeding incompetent. I need not address that issue here.
In particular, the adjoining page of the application, which contains the heading, Grounds of application, contained ample space for the inclusion of the grounds upon which an applicant relies in seeking judicial review. In that section of the form, the applicant had written:
Sir/Madam
I applied for the [MRT] to challenge the decision made by the Department of Immigration. Because I applied for the Renewal of my Visa in Year 2011. But the immigration came up with the decision that they are not satisfied with the information provided by me. But I fulfilled the criteria & then I applied for the [MRT] but they made the decision in 2013 that they affirm the decision made by the Immigration.
Sir,
At the time of hearing in [MRT], I was really sick and was hospitalised in Monash hospital & I called the [MRT] regarding that I cant attend the hearing asking if they can ammend (sic) the hearing date. I provided them medical certificate issued by the hospital that I was admitted in the hospital but they did not consider my situation.
‘MRT’ did not give me a chance to provide all the documentation & evidence I have.
Its really unfair to me that just because of the unfortunate circumstances I couldn’t attend the hearing date. I asked them to provide me further date but they couldn’t and I applied for the Minister intervention & he as well affirm the decision.
So if I get a chance to provide my evidence that will be highly [illegible]. . .
Whatever may be said of the suggested grounds of this further application, they are notable for the absence of any reference to the institution and dismissal of the first application or to the application for an extension of time in which to file a notice of appeal in the Federal Court that was determined by Collier J. Insofar as those grounds contain information going to the history of the visa application, in my view, a fair reading of those grounds informs the reader only of the applications to the Tribunal and for Ministerial intervention. Nothing was said of the earlier judicial review proceedings.
There is no basis for concluding that the requirements of sub-s 486D(1) were complied with. The present application does not make disclosure of any judicial review proceeding already brought by the applicant, whether in this court or any other court in relation to the decision of the Tribunal affirming the delegate’s decision to refuse the visa application. The proceeding is incompetent.
Discretionary considerations
If I am wrong in the conclusion that the proceeding is incompetent, it becomes necessary to examine more broadly the issues arising in the applications. It is necessary both in the assessment of the show cause application and in relation to the application for summary judgment.
I accept that there is an aura of pointlessness, unfairness and unreality, in asking (during the course of a hearing), a person in the position of the applicant to distinctly identify the basis on which they resist the Minister’s submissions: cf AMF15, supra (2016) 241 FCR 30, [44(e)].
I have therefore examined for myself the substantive applications before me; that is to say, I have considered whether (beyond the present objection to competency), there might be reason to conclude that jurisdictional error may be disclosed and for that reason, it would be appropriate as a matter of discretion to exercise the powers conferred by r 44.12(1)(c) to adjourn the application to a final hearing, or alternatively r 13.07(2), to make any order or directions that are considered appropriate for the matter to move forward to a trial.
I am also conscious that the applicant has been afforded, but not taken, a number of opportunities to present his case, both before the Tribunal, in this court and in the Federal Court. Having regard to my consideration of the visa application and the manner in which it was considered by the delegate and then the Tribunal, I see no ground upon which it might be suggested that jurisdictional error is disclosed.
Adopting the cautious approach that is required in the determination of this application, I discern no basis on which the discretion ought not be exercised in favour of dismissal of the application under r 44.12(1)(a).
As concerns the application for summary judgment, I am also not satisfied that the applicant has (and considering the matter for myself, could have), a reasonable prospect of successfully prosecuting his claim. I consider that the Minister is entitled to summary judgment. I have identified no consideration as to why, as a matter of discretion, the application ought not be dismissed or the Minister should not be entitled to judgment. As a result, the application should be dismissed.
Conclusion
There is a distinction in the nature of the relief that is granted in circumstances where both a show cause hearing and an application for summary judgment are before the court. As noted above, by r 44.12(2) the dismissal of a proceeding under that rule is interlocutory. It has been more contentious whether an order granting summary judgment under r 13.10 is final or interlocutory: see, eg, Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372; Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141, [11] (Keane CJ, Besanko and Perram JJ).
The circumstance that the Minister pursued both a show cause application and an application for summary judgment may have posed a question as to whether the relief should be granted under rr 44.12(2) or 13.10.
However, as the analysis above indicates, a conclusion that a proceeding is incompetent in the sense relevant here, means that the court has no jurisdiction to hear or determine the application because it has no authority to deal with it. As the Full Court observed in McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10, [6] the application cannot proceed because the law does not allow it to.
In those circumstances, once it has been determined that the proceeding is incompetent, the court cannot then embark upon a consideration of the merits so as to decide whether relief should go upon the application of principles relevant to a show cause application or an application for summary judgment under rules 44.12(2) or 13.10: compare Haritosv Commissioner of Taxation [2015] FCAFC 92, [60]. In Haritos, the Full Court determined that leave to appeal should be granted in part because, despite the form of the orders made by the primary judge that the appeal was incompetent, the primary judge had nevertheless considered to some extent the merits of the grounds.
In light of the reasoning in Haritos, in my view the proper course is that the proceeding be dismissed as incompetent.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 10 November 2017
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