SZSML v Minister for Immigration & Anor
[2013] FCCA 1253
•2 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSML v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1253 |
| Catchwords: MIGRATION – Application to set aside discontinuance of proceedings – consideration of the principles relating to the Court’s power to set aside discontinuance and the circumstances supporting exercise of the power. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Binns & Binns [2011] FMCAfam 358 CCC v Minister for Immigration [2001] FCA 682 Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 Foroghi v Minister for Immigration [2001] FCA 1875 Maddison v Qualtime Association Inc [2010] FMCA 25 MZYUV v Minister for Immigration [2013] FCA 498 NALZ v Minister for Immigration [2004] FCAFC 320 SZATV v Minister for Immigration (2007) 233 CLR 18 SZFOZ v Minister for Immigration [2007] FCA 1137 SZLPH v Minister for Immigration [2008] FMCA 342 SZLPH v Minister for Immigration [2008] FCA 744 SZQHH v Minister for Immigration [2012] FCAFC 45 SZSCA v Minister for Immigration [2013] FCCA 464 |
| Applicant: | SZSML |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 41 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Hooper DLA Piper |
INTERLOCUTORY ORDERS
The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Application in a Case filed on 17 July 2013 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 $2,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 41 of 2013
| SZSML |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & 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 17 July 2013 seeking to set aside a Notice of Discontinuance filed by the applicant on 12 March 2013. The following statement of background facts concerning the present application is derived from the Minister’s outline of legal submissions filed on 27 August 2013.
The applicant is a male citizen of Afghanistan. The applicant arrived in Australia on 16 February 2012 and lodged an application for a protection (Class XA) visa on 9 May 2012.[1] A delegate of the Minister refused that application on 11 July 2012[2] and the applicant sought review by the Refugee Review Tribunal (Tribunal) on 29 July 2012.[3] The Tribunal convened a hearing of the application on 16 October 2012,[4] at which determinative issues were traversed. On 17 December 2012 the Tribunal affirmed the decision under review, refusing the applicant's protection visa application.[5]
[1] Court Book (CB) 23
[2] CB 104
[3] CB 130
[4] CB 243
[5] CB 268
The Tribunal’s reasons
The applicant's claims concerned his and his brother's financial assistance to girls' schools, and his Hazara Shia ethnicity and religion.[6]
[6] The applicant's claims are more comprehensively summarised by the Tribunal at pages 17-18
In relation to the applicant's general Hazara Shia claim, the Tribunal was not satisfied, on the basis of its review of country information, that the material provided independent corroboration of claims that the Taliban now specifically targeted Hazara Shias on a systematic and discriminatory basis.[7] The Tribunal found that the applicant did not face a real chance of persecution simply as a Hazara Shia.[8]
[7] at [113]
[8] at [115]
In relation to the applicant's claims concerning donations to local schools and a mosque, the Tribunal accepted the applicant's claims concerning donations to local institutions in Dawood (Jaghori).[9] The Tribunal expressed concerns in relation to the applicant's claims as to the significance of the theft of the applicant's laptop, on the basis that his donations were publicised and known in the area in any event.[10] The Tribunal considered the applicant had seized upon the theft of his laptop to underpin his claims.[11]
[9] at [121]
[10] at [123]
[11] at [124]
The Tribunal accepted[12] that the applicant had a profile in his local area as a relatively wealthy Hazara businessman who made publicised donations to schools and a mosque, with the perhaps exacerbating feature that he had until recently been away from the area (in Iran) for many years. The Tribunal was not satisfied that the applicant was at risk in Jaghori itself, as the applicant had acknowledged at the hearing, but in the immediate vicinity of Jaghori when travelling found that he may come to adverse notice.
[12] at [125]
The Tribunal was prepared to extend to the applicant the benefit of the doubt and accept there was a real chance that the applicant may be harmed in the area around Jaghori for reason of his imputed political opinion as a businessman supporting educational infrastructure.[13] The Tribunal did not accept that the applicant had a national profile which would give rise to any real chance of harm for that reason, other than in the immediate area where the applicant may be known.[14]
[13] at [126]
[14] at [127]
The Tribunal was satisfied that the applicant's well-founded fear related immediately to the Jaghori district and that it did not extend to Afghanistan as a whole. The Tribunal found that in Kabul the applicant would not face a real chance of persecution for a Convention reason.[15] The Tribunal was not persuaded that relocation to Kabul was not reasonable, in the sense of practicable.[16] In so finding, the Tribunal considered country information, and the applicant's circumstances.[17]
[15]at [144]
[16] at [146]
[17] from [156]
Proceedings before the Federal Circuit Court
The applicant commenced proceedings by way of application, filed on 11 January 2013. The application sought impermissible merits review, by taking issue with the correctness of findings of fact by the Tribunal.
On 21 January 2013 the Minister filed a Response opposing all orders sought by the application on the basis that no arguable case for the relief sought was disclosed.
The application was listed for a directions hearing on 13 March 2013 at 9.30am.
However on 12 March 2013 the applicant filed a Notice of Discontinuance, signed by him, discontinuing all orders sought by the application.
On 17 July 2013 the applicant filed an Application in a Case, seeking to set aside the Notice of Discontinuance filed by him. The application is supported by an affidavit of the applicant sworn 2 July 2013.
The applicant's brother, known by the pseudonym SZSMM similarly commenced judicial review proceedings with respect to a decision of the Tribunal and his proceedings have followed a materially identical course to those of the present applicant.
I have before me as evidence the applicant’s affidavit in support of the Application in a Case filed with it. The applicant was cross-examined on that affidavit. The Minister’s solicitor tendered a Notice of Discontinuance filed by the applicant’s brother (SZSMM) on 22 February 2013.[18] I also received as an exhibit an example of the applicant’s handwriting of his name.[19]
[18] Exhibit R1
[19] Exhibit A1
I have also had regard to the original judicial review application filed on 11 January 2013 and the decision of the Tribunal which that application sought to review.
The Minister’s submissions usefully traverse the legal principles concerning the present application. I agree with that statement of principles and adopt it.
There is no express power contained in the Federal Circuit Court Rules 2001 (Cth) to set aside a Notice of Discontinuance. However the weight of authority supports the proposition that the Court has an inherent power to set aside a Notice of Discontinuance in exceptional circumstances in order to prevent injustice or abuse of its process.
In SZFOZ v Minister for Immigration[20] Ryan J upheld a judgment of the Federal Magistrates Court (as it then was) refusing an application to set aside a notice of discontinuance. At [15], [17] and [20], his Honour held relevantly:
[20] [2007] FCA 1137
[15] The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion. As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned any injustice to the appellant. However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected.
…
[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.
…
[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 [[1981] AC 557] and Applicant A26 [[2003] FCA 1050] 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.
In Christodoulou v Disney Enterprises Inc[21], the Full Court accepted a power to reinstate a discontinued proceeding on grounds of abuse of process, fraud or the like. Their Honours also observed that there was authority to set aside a notice of discontinuance “whenever the interests of justice dictate that that is the appropriate course”.[22]
[21] [2006] FCAFC 183; (2006) 156 FCR 369 at [27]- [28]
[22] It is noted that in that case the parties submitted that there was power to set aside a notice of discontinuance and reinstate an appeal, but were at issue as to the scope of the power, see [5].
The authorities were extensively reviewed in Maddison v Qualtime Association Inc.[23] The Court concluded, at [30]:
[30] Following on from a consideration of these cases, I conclude that where a Notice of Discontinuance has been filed in proceedings that were otherwise within the jurisdiction of this Court, the Court has the jurisdiction and the power to set aside the Notice of Discontinuance in circumstances where:
(a) Its filing was procured by fraud or as an abuse of process;
(b) It is necessary to ensure that the Court’s process does not cause an injustice; and
(c) It was filed pursuant to an agreement that is void or voidable.
[23] [2010] FMCA 25
The above list was not stated to be exhaustive, at [32]. At [33]-[34], the Court further observed:
[33] The Court’s assistance ought not be given where a party merely considers that he or she has made a bad bargain and seeks to puruse [sic pursue] an action otherwise compromised. In D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 the High Court said at [34]:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened except in a few, narrowly defined, circumstances”
[34] In R v Burrell [2008] 248 ALR at [16] the majority justices said:
“It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time consuming, and it is almost always costly.”
In Binns & Binns[24], the Court held, after discussion of authority, at [35]-[56]:
[35] From these authorities, I would conclude that once a properly executed Notice of Discontinuance is filed, then absent abuse of process, fraud, duress or the like, there is no power in the Court to set aside a notice of discontinuance. I have noted the passage, however, emphasised above, taken from Ryan J’s judgment [in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137], which finds a certain resonance in Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 at [5], where a notice of discontinuance had been filed without instructions and Mansfield J said:
“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 concept of the abuse of process in the present context. It was accepted by the respondent that the allegations, if made out, fell within its reach.”
[36] Even assuming that the Court has an inherent power to prevent injustice (those observations were made in the context of the Federal Court which, unlike this Court, is a superior court of record), I do not think that the applicant comes within even the broadest ambit of the exceptions to the general proposition.
[24] [2011] FMCAfam 358
The applicant contends that his discontinuance should be set aside because he only intended the discontinuance to delay and not to terminate his proceedings. Essentially, he says that he did not understand what he was doing. His evidence as tested under cross-examination, however, does not provide much support for his contention. First, I accept from Exhibit R1 that the applicant’s brother discontinued his own legal proceeding a month earlier. The applicant conceded under cross-examination that he and his brother had discussed their two proceedings and that their cases were essentially the same. Secondly, I find from Exhibit A1 that the applicant wrote his name on the front of the Notice of Discontinuance. He himself conceded that he signed it.
In his affidavit in support of the present application, the applicant also said that he checked the boxes on the second page of the notice. He denied having done that under cross-examination. He conceded having obtained some assistance to complete the document. His evidence is that he was reluctant to come to Court on 13 March 2013 for the first court date directions because he did not understand the process and he was afraid to appear without legal assistance.
The applicant was represented by a migration agent before the Tribunal. He has received at various times in his proceedings in this Court information or advice. His knowledge of the court process is clearly very limited. He has no understanding of legal complexities. However, I am not persuaded that he was labouring under the misapprehension that his discontinuance would be the same as an adjournment. I accept, however, that he might have believed that the discontinuance would delay the proceedings. To that extent, he is right because the Court has to deal with his present Application in a Case.
There is no evidence of any fraud by any person nor is there any evidence that the applicant was actively misled. I find that his level of understanding of the effect of his discontinuance was no less than his level of understanding of his application to the Court filed on 11 January 2013. He understood that the original court application started a process of some kind. He also understood that the discontinuance would stop that process at least until he chose to attempt to re-agitate it. The applicant was aware that a costs order had been made as a consequence of the discontinuance.
The evidence does not, in my view, point to any issue of injustice that would justify setting aside the discontinuance. In coming to that conclusion I have had regard to the question of whether the decision of the Tribunal might arguably be affected by some jurisdictional error. The Minister’s submissions properly address that issue, and I agree with them.
The Tribunal at a number of instances referred to itself as the “reviewer”, for example, [102], [145], [146], [160]. The Tribunal’s references to itself as a “reviewer” do not support an argument that the Tribunal misunderstood its own jurisdiction. A number of authorities have considered the significance of typographical errors of the present nature, and found that jurisdictional error is not demonstrated.[25]
[25] See, for example, Foroghi v Minister for Immigration [2001] FCA 1875 at [48], CCC v Minister for Immigration [2001] FCA 682, SZLPH v Minister for Immigration [2008] FMCA 342 (application for leave to appeal dismissed: SZLPH v Minister for Immigration [2008] FCA 744), and SZQHH v Minister for Immigration [2012] FCAFC 45 (use of a template to deal with the template claim concerning the class of Hazara Shias in Afghanistan does not point to an apprehension ofbias)
In my view, nothing turns on the misdescription by the Tribunal of itself as a reviewer rather than as the Tribunal. I note that the presiding member had been an Independent Merits Reviewer prior to his appointment as a member of the Tribunal.
The Tribunal decision turned on the issue of relocation. The Tribunal considered the reasonableness, in the sense of practicality, of relocation, as it was required to do.[26]
[26] see SZATV v Minister for Immigration (2007) 233 CLR 18, at 27 per Gummow, Hayne and Crennan JJ at 27
The issue of relocation was traversed at the Tribunal hearing.[27] The applicant claimed it would not be easy for him to continue his life in Kabul and he had been absent from Afghanistan.[28] The applicant's representative further addressed relocation in her post hearing submission dated 30 October 2012.[29] The focus of the submissions on relocation concerned what was said to be the generally unsafe security situation, citing country information.
[27] from [75]
[28] at [77]-[79]
[29] CB 256
The Tribunal expressly identified the need to address the reasonableness or practicality of relocation.[30] As to the reasonableness of relocation, the Tribunal found as follows:
a)there is a very large Hazara community in Kabul, citing country information.[31]
b)there had been reference to continuing security incidents in Kabul but publicly available reports indicate that incidents were largely directed against government and international forces, foreigners and public figures and institutions, rather than the local population in general.[32] In a city of several million people, the risk of harm for an ordinary individual was exceedingly small;[33]
c)on the basis of its analysis of country information, the Tribunal was satisfied that Hazaras are not generally targeted in Kabul;[34]
d)as to the applicant's own personal circumstances, the applicant had lived outside Afghanistan for a number of years and then successfully re-established himself in Afghanistan, in 2010. He established a real estate business and owed substantial property in several cities in Afghanistan, including Kabul. He had previously been employed in other vocations. He clearly had entrepreneurial skills which would help the applicant in relation to business or employment in Kabul. The applicant had significant assets;[35]
e)although the applicant claimed at the hearing that he believed he had lost his property near Ghazni, he did not make this claim as regards other property in Kabul or Mazar e Sharif. The applicant had regularly stayed in Kabul, in relation to business, and it might reasonably be inferred that the applicant had business contacts there. The applicant did not face the same financial, accommodation and employment challenges as many others returning to Kabul;[36]
f)it was claimed that the applicant would have to travel to dangerous roads in order to conduct his real estate business in relation to property outside Kabul. As a person with assets, and given his background and experience, the applicant could develop other business opportunities in Kabul, including in development and/or construction. The Tribunal was satisfied that in contemplating that the applicant might change his business activities to avoid dangers outside Kabul did not amount to an impermissible requirement that the applicant change something fundamental to his identity or beliefs to avoid persecution. It found, further that the real estate business was a recent one, and not a lifetime vocation;[37]
g)nothing in the evidence indicated that Afghans who have spent some time out of Afghanistan are for that reason persecuted in Kabul or denied access to employment or basic services;[38]
h)the applicant may receive Australian government assistance to assist him to resettle;[39]
[30] at [143] and [145]
[31]at [148]-[149]
[32] at [150]
[33] at [151]
[34] at [155]
[35] at [156]
[36] at [156]
[37] at [157]
[38] at [158]
[39] at [159]
At [157], the Tribunal found that the applicant may need to modify or change his business practices in order to avoid particular dangers he feared outside Kabul.[40] This does not amount to an impermissible behaviour modification as it does not concern any Convention characteristic. There was no suggestion in the applicant's evidence that modification of his business practices would be considered or claimed by the applicant to be persecutory.[41]
[40] The applicant's most recent business was the buying and selling of land throughout Afghanistan, see eg CB 109, and see CB 119, 206, 277[56]
[41] cf Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; see NALZ v Minister for Immigration [2004] FCAFC 320, at [9] per Madgwick J (in dissent), at [46] per Emmett J, and at [57]-[59] per Downes J
In MZYUV v Minister for Immigration[42] Gordon J held, at [45] (emphasis added):
The Reviewer’s recommendation in this case, however, does not offend the principle in S395. The Reviewer’s conclusion in [79] must be read in the context of the whole of the recommendation, in which the Reviewer concluded that “there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis” but that “travel is dangerous for all ethnic groups”. In those circumstances, the conclusion that the appellant might have to modify his behaviour in order to protect himself, not for a Refugee Convention reason but generally, does not impose a requirement that the appellant is required, or expected, to take reasonable steps to avoid persecutory harm. Rather, it is a requirement, or expectation, that the appellant will take reasonable steps to avoid harm generally, which does not offend S395.
[42] [2013] FCA 498
Accordingly, the Tribunal will only commit an Appellant S395/2002 error where the behavioural modification concerns a Convention attribute or otherwise results in Convention persecution. It is not sufficient that an applicant may have to modify his or her, for example, business arrangements, where such modification has no nexus to the applicant's Convention claims and is not persecutory. The present is such a case.
To the extent SZSCA v Minister for Immigration[43] is to the contrary, I accept that that judgment is distinguishable.[44]
[43] [2013] FCCA 464
[44] It is noted that the Minister has appealed the judgment of the Federal Circuit Court in SZSCA and his appeal is listed for hearing on 5 November 2013
While it is possible that a legal representative might mount an arguable case of error in relation to the Tribunal’s key relocation finding, and while that possibility might (if the application had not been discontinued) have caused me to list this case for a final hearing notwithstanding the unhelpful grounds of review advanced in the original application, there is nothing of such concern about the Tribunal hearing or its decision to support the application to set aside the discontinuance.
The applicant is plainly afraid to return to Afghanistan. He believes that documents about him held by the authorities in Afghanistan would put him at risk. He also believes that information about his circumstances had been inappropriately made available by Australian authorities to persons in Afghanistan. These are matters which are beyond the scope of the present proceedings. They are matters that could be submitted to the Minister’s Department in support of a request that the Minister intervene pursuant to s.417 of the Migration Act 1958 (Cth).
It does not appear that the applicant has previously sought that intervention. The Court, of course, has no power to influence whether the Minister would consider such an application. The fact is, however, that the applicant, while he is concerned about the prospect of a return to Afghanistan, has nothing to say about any legal issue concerning the Tribunal decision on his application for a protection visa.
I conclude that the applicant has not demonstrated any case for the exercise of the Court’s power to set aside the discontinuance, and accordingly the application in a case filed on 17 July 2013 should be dismissed. I will so order.
In consequence of the dismissal of the application in a case, the Minister seeks an order for costs limited to the costs of the present proceeding. The Minister seeks costs fixed in the sum of $2,500. The applicant was concerned that he should have some continuing legal process in return for agreeing to pay the costs. He indicated that if he had some continuing process in a Court to prolong his stay in Australia, he would be willing to pay the costs by instalment. As I indicated to him, the issue of instalment payments is a matter for him to discuss with the Minister’s Department or the Minister’s legal representatives. I explained to the applicant the possibility of him seeking leave to appeal to the Federal Court.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 September 2013
9
17
3