SINGH v Minister for Immigration
[2016] FCCA 2683
•30 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2683 |
| Catchwords: MIGRATION – Judicial review – application to set aside notice of discontinuance – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2298 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 30 August 2016 |
| Date of Last Submission: | 30 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2016 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application in a case be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2298 of 2014
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extempore & revised)
This is an application to set aside a notice of discontinuance that was filed by leave in the matter MLG2298/2014 where the applicant sought judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) (as it was then called) in the Federal Circuit Court.
The Tribunal affirmed a decision of the delegate to cancel the applicant’s student visa. The applicant had come to Australia on his first student visa in 2009 and then obtained a subsequent student visa in 2011. The applicant had not enrolled in a course from 16 July 2013, leading to notice of intention to cancel his visa in January 2014.
The applicant wrote to the delegate in February 2014, giving some explanations relating to the trauma that he had felt as a result of family health issues and advising that he had once again obtained a certificate of enrolment from Della International College. That certificate of enrolment appears in the court book at page 14, where the college provided an electronic certificate showing that the course would be starting 24 March 2014 and continuing until March 2015. That electronic certificate of enrolment had a unique identifier number of 62E20032.
The delegate cancelled the visa. Thereafter the applicant applied to the Tribunal. By the time that the matter was heard in the Tribunal on 14 October 2014 the applicant’s certificate of enrolment from Della College had been cancelled, as was shown on the PRISMS database, a printout of which appears at page 41 of the court book. The enrolment certificate is listed in the printout by its unique identifier number 62E20032, showing that it had been cancelled on 8 March 2015. The result was that by the time the matter was before the Tribunal in October 2014 the applicant had not been enrolled in the course for some six months.
The Tribunal offered the applicant an opportunity to appear before it and invited him to provide information. The applicant did not take up those options and he provided nothing to show that he had again enrolled or had a current offer of enrolment in a course. The Tribunal noted that the cancellation was because of a lack of enrolment and that he was not enrolled at present.
It is unclear whether at paragraphs [17] and [18] of the decision, the Tribunal were conscious of the brief period of enrolment at Della College that was cancelled by March 2015 as it is not specifically referred to. However, this does not appear to be germane to the issues that the Tribunal were considering, as the practical reality was that at the time the matter came before the Tribunal the applicant had neither an enrolment nor a offer of enrolment and nor was there anything before the tribunal to indicate that the applicant was intending to resume his studies or any plan about obtaining an enrolment or an offer of enrolment.
The applicant was clearly in breach of his visa conditions and, not surprisingly, the Tribunal concluded that it would not reverse the decision of the delegate. The applicant then sought a judicial review of that decision on the basis of a claim that the Tribunal did not consider his explanation about his visa cancellation. It is difficult to see how that could have succeeded, given that the only explanation he gave was one to the delegate, which is recounted in full at paragraph [6] of the Tribunal’s decision.
The matter proceeded to a directions hearing before a Registrar of the Court, and directions orders were made on 18 February 2015. The applicant subsequently filed a notice of discontinuance, however, it was filed so late that he needed leave of the Court due to the proximity of the notice to the hearing date. That leave was given in chambers by myself by order dated 25 July 2016.
The applicant brings this interlocutory application in a case seeking orders that effectively set aside my previous order and the notice of discontinuance and allow him to proceed with the application. The precise terms of the orders that he seeks do not make that particularly clear but the context of the case makes it apparent that that is the purpose of the application.
The difficulties that confront the applicant are twofold. Firstly, the application has been properly discontinued with leave of the Court. In these circumstances, the bases for obtaining the Court’s leave to set aside a notice of discontinuance or reinstate proceedings are limited. This issue was discussed by Ryan J in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 where his Honour said:
17. 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 with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;
‘It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.’ (emphasis added)
18. 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; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 where Lord Scarman, with whom the rest of their Lordships agreed, said, at 571;
‘The first issue is whether the notice of discontinuance can be struck out, and, if it can, whether it should be. It is accepted that under the Rules of the Supreme Court as they were in 1979 (for they have now been amended to take care of the situation which arises when interim payments have been made: see R.S.C. (Amendment No. 2) 1980, r. 4), the plaintiff, notwithstanding the two interim payments and the admission of liability, could discontinue without leave, if he did so not later than 14 days after service of defence. Lord Denning M.R. was, however, prepared to hold that our courts can, by the device of statutory interpretation, repair the omission in the unamended R.S.C., Ord. 21, r. 2 to provide for the case in which interim payments had been ordered and made before the expiry of the time limit. "I fear," he said, "that the draftsmen of interim payments forgot all about notices of discontinuance. Interim payments are quite inconsistent with a right to discontinue without leave"; [1980] 1 W.L.R. 833, 854H. Interim payments were made possible by the Administration of Justice Act 1969, section 20, and introduced into the law in 1970 by R.S.C., Ord. 29, rr. 12-17. Like Lord Denning M.R., I have no doubt that the failure to amend the rule relating to notice of discontinuance was a casus omissus. But I do not agree that it is an omission which the courts can make good by reading into the rule a provision that leave is needed when the rule expressly said it was not. Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process (which is what Parker J. did), the notice cannot be struck out.
In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p. 855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him "an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process." (p. 864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.’
19. In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court’s inherent power to prevent injustice. In those circumstances his Honour observed, at [2] and [5];
‘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: Castanho v Brown and Root (UK) Ltd [1981] AC 557. Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality ‘if justice requires’.
… …
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.’
20. In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.
21. Because of what I have concluded was an absence of power in the Federal Magistrates Court to set aside the appellant’s discontinuance of his application to that Court, it follows that the appellant has failed to satisfy the first limb of the test erected in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case, a Full Court of this Court applied the principles enunciated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431 and observed, at 398;
‘The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second:
“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.”’
In the case presently before me there does not appear to be anything that would show a basis for the Court setting aside a notice of discontinuance that would fall within the types of circumstances discussed in the above quote.
More significantly, when one turns to consider whether or not the applicant has an arguable case, it is apparent that the applicant does not, in fact, have an arguable case in the circumstances of this matter. The applicant was seeking that the Tribunal set aside cancellation of his visa in circumstances where he did not have a current enrolment, did not have an offer of an enrolment and did not have any material to indicate when he was about to start studying again or what he would, in fact, be studying.
It is difficult to see how the Tribunal or delegate in the circumstances as at the date of the Tribunal’s decision could have concluded that they ought not to cancel his student visa as, on the material before them, he was no longer a student. The applicant had not participated in the process and is not able to point to any procedural errors on the part of the Tribunal. Indeed, the Tribunal specifically identified that it had regard to policy guidelines in paragraph [19] of the decision.
It is also apparent that the Tribunal considered the reasons he gave the delegate, noted that there was no specific evidence to support them and, in any event, the time that had passed since then would make it unlikely that they would be effective reasons for the exercise of the discretion in his favour, particularly in circumstances where he had no enrolment or offer of enrolment.
In the circumstances of this matter, I am not persuaded that the applicant has an arguable case. Therefore, I have no option but to refuse the application in a case.
I therefore formally dismiss the application in a case.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 17 October 2016
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