SZFOZ v Minister for Immigration
[2007] FMCA 465
•2 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 465 |
| MIGRATION – Review of Refugee Review Tribunal decision – application to reinstate a judicial review application following discontinuance – no injustice resulting from discontinuance – whether any reinstated proceeding would be statute barred as a fresh proceeding considered. |
| Migration Act 1958 (Cth), ss.417, 422B |
| Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050 Applicant NACT of 2001 v Minister for Immigration [2004] FCA 316 |
| Applicant: | SZFOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG213 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 2 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Ms J Gounder The People’s Solicitors Pty Ltd |
| Solicitors for the Respondents: | Ms A Nanson Australian Government Solicitor |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The Court directs that the Refugee Review Tribunal be added as the second respondent to the proceedings.
The reinstatement application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG213 of 2005
| SZFOZ |
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 filed on 12 February 2007 seeking orders that a judicial review application be reopened on the basis that the applicant now has fresh evidence to support his case or, in the alternative, that a further application be entertained in this Court and, secondly, that the applicant’s bridging visa be extended until hearing of the matter. In substance, however, that application seeks the reinstatement of a judicial review application, notwithstanding a notice of discontinuance filed on 31 May 2006. I understand that the applicant also seeks the vacation of an order for costs I made on 20 June 2006 in consequence of that discontinuance.
The matter has been before me several times and most recently on 2 March 2007 I listed the reinstatement application for hearing today at 10.15am and made directions for the filing of additional material. The applicant filed an affidavit with annexures on 23 March 2007 and a form of amended judicial review application on which I understand he would rely if he is successful in the reinstatement application.
The applicant had been represented at the two earlier hearings in relation to the reinstatement application by Mr Shaw but he was unavailable today. Ms Gounder, who appeared for the applicant, sought an adjournment but I declined that request on the basis that the fixture today had been agreed to by both parties and that I could not see any merit in further delay.
I received the applicant’s affidavit as evidence for the purposes of the reinstatement application, although it was substantially objected to on the grounds of relevance by the Minister. I adopt as background for the purposes of this judgment the following chronology in the Minister’s written submissions filed on 29 March 2007:
Chronology
Date Event 13 October 2003
Application for protection visa lodged.
15 October 2003
Delegate of the Minister refused the grant of the protection visa.
20 November 2003
Applicant applied for Refugee Review Tribunal ("the Tribunal") review of the delegate's decision.
16 January 2004
Tribunal handed down decision affirming the delegate’s decision ("Tribunal's decision").
25 January 2005
Applicant filed an application for review of the Tribunal's decision in the Federal Magistrates Court of Australia.
11 April 2005
Amended Application for review filed in the Federal Magistrates Court of Australia.
31 May 2006
Applicant filed a notice of discontinuance in the Federal Magistrates Court of Australia.
20 June 2006
Federal Magistrate Driver made orders by which the Applicant was to pay the Respondent's costs fixed at $2,200.
22 February 2007
Applicant files a notice of motion seeking reinstatement of his application for review filed in the Federal Magistrates Court of Australia.
The questions to be answered are whether the discontinuance and the resulting costs order have given rise to an injustice and, secondly, whether there is a serious question to be tried on the judicial review application as amended should reinstatement be permitted. There is also a jurisdictional issue.
On the first question, the applicant says that he filed a notice of discontinuance on 31 May 2006 because he did not have legal representation at that time and he did not have enough evidence to support his case. He also says that following the discontinuance he sought the exercise of Ministerial discretion pursuant to s.417 of the Migration Act 1958 (Cth) (“the Migration Act”) and that that request was denied on 20 September 2006. Having regard to that chronology, it appears that the applicant has thought better of his discontinuance having failed to secure Ministerial intervention.
The applicant’s affidavit in other respects is directed to his claims to be a refugee from Fiji. Although the applicant was self-represented in this matter before this Court in 2005 he elected to participate in the Minister’s panel advice scheme and was referred to Mr Godwin for the provision of advice. That referral occurred on 25 February 2005. The Court’s correspondence file does not record whether or not any advice was given. The applicant did, however, have the opportunity between February and May 2005 to receive legal advice.
The Minister submits that reinstatement should not be permitted. Relevantly, the Minister submits as follows:
It is well established that, in considering an application for reinstatement, the court must look not only at the circumstances which led the party to discontinue, but also at the merits of the substantive application. In SZCPY & Anor v Minister for Immigration [2004] FMCA 646 at [12], Driver FM stated:
Where there are no prospects of success on the substantive application, reinstatement would be futile, therefore an application for reinstatement ought to be refused. This approach was taken by Federal Magistrate Raphael in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter.
Where, as here, the applicant applies for reinstatement having filed a notice of discontinuance, the application should be treated as an application for an order setting aside the applicant's notice of discontinuance filed 31 May 2006. A notice of discontinuance may be set aside where there has been an abuse of process in the filing of the notice and to prevent injustice.[1] A notice of discontinuance may also be set aside if sufficient cause can be shown.[2]
[1] Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050.
[2] See Castanho v Brown UK Limited [1981] AC 557, Applicant NACT of 2001 v Minister for Immigration [2004] FCA 316, SZEHH v Minister for Immigration& Anor [2005] FMCA 1692 and SZIHB v Minister for Immigration & Anor [2006] FMCA 472.
It is not apparent on the material before me that any injustice has occurred in this matter. There has certainly been no abuse of process. It appears to me to be a case where the applicant elected to abandon a legal proceeding and to pursue instead a request for Ministerial intervention on the merits. Having failed in that effort, the applicant has changed his mind again and seeks the opportunity to re-agitate his legal claims. That, in my view, is an insufficient justification for a reinstatement. It is simply a case of a party changing his mind.
The proposed amended application asserts jurisdictional error but the grounds in it struggle to rise above a dispute over the merits of the Tribunal decision. It is true that the proposed amended application asserts a want of procedural fairness but it would be necessary for the applicant to deal with the impact of s.422B of the Migration Act which applies in this case.
The proposed amended application also takes issue with a relocation finding made by the Tribunal but it needs to be borne in mind that the principal finding of the Tribunal was that the applicant did not have a well-founded fear of persecution. The Tribunal found that effective state protection was available in Fiji to the applicant to deal with the acknowledged fear he faced of harm at the hands of ethnic Fijians.
That is not to say that the proposed amended application would be doomed. It would face difficulties but there is sufficient in it to support a serious contest over the validity of the Tribunal decision.
I find that the proposed amended application does raise legal issues that, notwithstanding the difficulties apparent would merit a hearing if I were wrong in my finding as to the insufficient cause advanced to reinstate the application. I take into account the Minister’s submissions in paragraphs 5.2 to 5.3 of his written submissions but, in my view, those would have been matters to deal with at a final hearing.
The further issue is one of jurisdiction. In SZIHB v Minister for Immigration [2006] FMCA 472 at [3] I took the view that a reinstated application following a discontinuance would be a fresh proceeding and that s.477 of the Migration Act would operate on it. I have not changed that view. It follows that if I was wrong in denying the application for reinstatement on the basis of insufficient cause to permit it, there would be a jurisdictional objection to the fresh proceeding resulting from a reinstatement given that much more than 84 days has passed since either the filing of the original application or the discontinuance of it.
I conclude that the reinstatement application should be dismissed. I will so order.
On the question of costs, the application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,000. That is resisted on the basis of the applicant’s capacity to pay, but the issue is whether costs of the amount sought have been properly and reasonably incurred. Having regard to the amount of work which has been done on behalf of the Minister and the Court’s scale of costs, I am satisfied that the claim is a reasonable one. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I will direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship. I will order that the Refugee Review Tribunal be joined as the second respondent.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 April 2007
4
6
1