SZBHD v Minister for Immigration - [2008] FMCA 1541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBHD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1541

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – judicial review application discontinued by the applicant – application for reinstatement – no injustice occasioned by the discontinuance – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

SZFDE v Minister for Immigration & Anor [2007] HCA 35
SZFOZ v Minister for Immigration [2007] FMCA 465

Applicant:

SZBHD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1682 of 2003

Judgment of:

Driver FM

Hearing date:

13 November 2008

Delivered at:

Sydney

Delivered on:

13 November 2008

REPRESENTATION

Counsel for the Applicant:

Ms K Welshman

Solicitors for the Applicant:

Austin Haworth & Lexon

Solicitors for the Respondents:

Ms C Kelso
Australian Government Solicitor

INTERLOCUTORY ORDERS

The name of the applicant is not to appear on the transcript of proceedings.
The application in a case filed on 30 September 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in a case, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1682 of 2003

SZBHD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application in a case filed on 13 September 2008 seeking an order that orders made by me on 16 March 2005 be set aside pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and also seeking other orders. The object of the application is to reinstate a judicial review application discontinued by leave.
The application is supported by an affidavit by Mr Daniel Sheen, a solicitor, deposing as to leave to discontinue the judicial review proceedings granted on 16 March 2005 and the granting of a criminal justice visa to the applicant the following month. Mr Sheen deposes that that criminal justice visa has now expired and that the applicant wishes to continue with the former legal proceedings. I also have before me a proposed amended application raising allegations of agent fraud and an affidavit in support of that proposed amended application by the applicant, as well as submissions by counsel for the applicant relying upon the decision of the High Court in SZFDE v Minister for Immigration & Anor [2007] HCA 35. In addition, I received today as evidence several documents. Exhibit A1 is a letter from the Minister's Department to the applicant dated 13 May 2008 concerning the expiry of her criminal justice visa. Exhibit R1 is a letter to the Minister's solicitors from the applicant's panel advisor in 2005, Mr R V Wilson, concerning his discussions with the applicant and the apparent outcome of the matter at that stage.
Counsel for the applicant raised with me at the outset of the hearing today whether there was any discontinuance of the proceedings on 16 March 2005. I ruled that there was based upon the orders made by me at that time, which I intended would bring the matter to an end by way of discontinuance. I made those orders following discussion with the applicant, who appeared in person at that time, and my perusal of an email from the applicant's panel advisor which indicated the applicant's intention to discontinue if leave was granted. Leave was required because 16 March 2005 was the date fixed for the final hearing of the judicial review application before the Court at that time[1].
[1] Rule 13.01(2) of the Federal Magistrates Court Rules 2001 (Cth). The applicant was not required to file a notice of discontinuance.
Counsel for the applicant also sought an adjournment in order to seek further material to support the application to either vacate the orders made on 16 March 2005 or in some other way to obtain the reinstatement of the judicial review application so that the proposed amended application could proceed. I refused that adjournment on the basis that I could not see how further delay would be productive.
I have the benefit of the transcript of the hearing before me on 16 March 2005, which satisfies me that the applicant made a considered decision to discontinue her proceeding before the Court and that that was the effect of the orders made by me on 16 March 2005.
I considered the issues relating to a reinstatement of an application following discontinuance in SZFOZ v Minister for Immigration [2007] FMCA 465. I adopt the same view as to the relevant principles as to that I adopted in that case.
In my view, it would not be in the interests of the administration of justice for reinstatement to be permitted or for the orders made on 16 March 2005 to be vacated. The applicant was at that time assisted by a panel advisor and in my view acted reasonably and in a considered fashion on his advice. In my view, it appeared at that time that discontinuance was the appropriate course, given that the applicant conceded that her claims before the Refugee Review Tribunal had been concocted.
The applicant is seeking now to take advantage of developments in the law, in particular the decision of the High Court in SZFDE v Minister but the Court should not lightly permit an applicant to re‑agitate a proceeding that has been concluded, simply because there has been a development in the law that favours her.
Counsel for the applicant drew attention to the applicant's affidavit in support of her proposed amended application in which she states that she was also advised by her migration agent in the proceeding before this Court in 2005, that being the same agent against whom the applicant now wishes to pursue allegations of agent fraud. Assuming that to be the case, it does not appear to me that anything the agent may have said and done at that time was determinative of the applicant's decision to discontinue. Rather, in my view, it was whatever advice she received from her panel advisor, Mr Wilson, which influenced her, as well as the discussion at Court on 16 March 2005.
The Minister contends that there is no connection between the discontinuance of the application and the granting to the applicant of a criminal justice visa to ensure the presence of the applicant while the Minister's Department considered action against the applicant's migration agent. That may well be right but it is apparent from the available material that there had been some discussion between the applicant and the Minister's Department which resulted, within a short time after the discontinuance, in the granting of a criminal justice visa. I think it likely that the applicant had an expectation that she would be permitted to remain in Australia to assist the Department, whether or not there was any connection between that expectation and the discontinuance.
It does not appear that the Department has taken any action against the applicant's migration agent in the three years since the criminal justice visa was granted. That is not to say there is no substance in the allegations now sought to be agitated against the agent by the applicant. Indeed, the applicant’s affidavit asserts facts which, if true, would support an arguable case of agent fraud. However, those allegations could have been pursued in 2005 if the applicant was so minded. There needs to be finality in litigation. Applicants should not be permitted to seek to re‑agitate proceedings at a time of their choosing where significant time has passed and where they have taken a considered decision to discontinue a proceeding. The transcript discloses, at page 5 at about line 20, that I warned the applicant on 16 March 2005 that if she discontinued she would need permission of the Court to reinstate the application and that such permission was unlikely.
I am satisfied that there was no injustice to the applicant occasioned by the orders made by me on 16 March 2005. I am satisfied that insufficient cause has been shown for the Court to either set aside those orders or to permit the judicial review application to be reinstated notwithstanding those orders.
Accordingly, I will order that the application in a case filed on 30 September 2008 be dismissed.
In consequence of the dismissal of the application in the case the Minister seeks the costs of it. Those costs include the appearance by the Minister's solicitor now and consideration of the various documents filed. There is a question as to the extent to which those costs include costs of considering the proposed amended application.
The Minister seeks the sum of $1,500 on the basis that the Minister's actual costs are in the vicinity of $2,000. In my view, costs fixed in the sum of $1,000 would be adequate recompense for what has been required of the Minister to this point.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the case, which I fix in the sum of $1,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 November 2008