SZTVS v Minister for Immigration

[2014] FCCA 2733

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2733

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to set aside notice of discontinuance – whether the applicant will suffer any injustice if notice of discontinuance is set aside – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477(2)

Maddison v Qualtime Association Inc [2010] FMCA 25

Applicant: SZTVS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 260 of 2014

Judgment of: Judge Manousaridis

Hearing date: 10 October 2014

Delivered at: Sydney

Delivered on: 25 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms M. Stone of
DLA Piper Australia

ORDERS

1. The application to set aside the notice of discontinuance filed in Court on 14 August 2014 is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 260 of 2014

SZTVS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 14 August 2014 there came before me for hearing an application to extend time under s.477(2) of the Migration Act 1958 (Cth) (Act). The applicant, who was not legally represented, appeared with the assistance of an interpreter.

2. At the commencement of the hearing, the lawyer representing the first respondent (Minister) informed me the applicant had indicated to her that he wished to discontinue the proceedings. The applicant confirmed to me that was the case. I then made orders granting the applicant leave to discontinue the proceedings. The applicant signed and filed in Court a notice of discontinuance.

3. On 10 September 2014 the applicant filed an application in a case seeking an order to reopen his case. In substance, however, the application seeks an order that the Court set aside the notice of discontinuance the applicant signed and filed in Court on 14 August 2014.

4. On 10 October 2014 the application in a case came before me. The lawyer for the Minister submitted that, although the Court has power to set aside the notice of discontinuance, the Court ought not to set aside the notice of discontinuance. The applicant, who appeared with the assistance of an interpreter, made no submissions, but relied on an affidavit he made on 2 September 2014.

Principles

1. The Court has power to set aside a notice of discontinuance.[1] The source of the power is the Court’s implied power to do all that is necessary and incidental to the exercise of jurisdiction that is expressly conferred on it.[2]

   [1] Maddison v Qualtime Association Inc [2010] FMCA 25 at [30] (Wilson FM)

   [2] Maddison v Qualtime Association Inc [2010] FMCA 25 at [12] (Wilson FM)

2. The Court will set aside a notice of discontinuance where its filing was procured by fraud or by some abuse of process, or where its setting aside is necessary to ensure the Court’s process does not cause an injustice, or where the notice of discontinuance was filed further to an agreement that is void or voidable.

Ground on which applicant relies

1. The applicant seeks an order to reopen his case (which, as I have said above, I will treat as an application to set aside the notice of discontinuance) because of “personal issues in Bangladesh which I needed to deal with” at the time “I chose to discontinue with my immigration case”. The applicant claims his parents had arranged for the applicant’s engagement to a woman in Bangladesh; the applicant and his fiancé got to know each other through regular contact by telephone, internet, and webcam; his fiancé’s parents, however, broke off the engagement; and the applicant’s fiancé married another man. The applicant says that on hearing this news, he became mentally and emotionally distressed, and suffered severe depression. As a result, the applicant claims he was unable to think logically and rationally and, therefore, “made an error in deciding to discontinue . . . my immigration case”.

2. In support of these claims, the applicant attached to his affidavit photographs of himself in what appears to be a distressed condition. The applicant also attached a copy of a photograph of what the applicant claims is his “ex-fiancé”. The applicant does not attach or otherwise refer to any medical reports that attest to his claim of having suffered severe depression.

Should the notice of discontinuance be set aside?

1. The applicant was not cross-examined, because the Minister’s lawyer submitted that even if what the applicant stated in his affidavit were true, it would not bring the application for the setting aside of the notice of discontinuance within any of the three categories of cases in which the Court may set aside a notice of discontinuance.

2. That the applicant was not cross-examined, though, does not oblige me to accept the applicant’s evidence. And I do not accept his evidence. It is bereft of detail. The applicant did not disclose the name of his fiancé; he did not disclose the date on which his parents arranged for the engagement; although he says he regularly communicated with his fiancé by telephone, internet, and webcam, he did not disclose his fiancé’s contact details on these media; he does not disclose the circumstances in which he was informed his fiancé was married to another; and he does not say how and from whom he received the photograph of the woman he claims is his ex-fiancé.

3. Even though I do not accept the applicant’s evidence, and for that reason, his application to set aside the notice of discontinuance must be dismissed, I will consider his application on the assumption I do accept his evidence. On that assumption, the grounds on which the applicant relies do not indicate he filed the notice of discontinuance as a result of fraud or an abuse of process by anyone, or as a result of a void or voidable agreement. Nor, in my opinion, would the applicant suffer injustice if I were not to set aside the notice of discontinuance.

4. First, I was satisfied on 14 August 2014 that the applicant understood the nature and consequences of his filing a notice of discontinuance. The applicant’s affidavit confirms the applicant was aware of the nature of the notice of discontinuance he signed on 14 August 2014 and filed in Court, and the consequences to his application for an extension of time by his signing and filing a notice of discontinuance.

5. Second, the application for an extension of time is bound to fail, principally because the proposed grounds of review of the decision of the second respondent (Tribunal) lack merit.

6. Before the Tribunal the applicant, a national of Bangladesh, claimed he had a well-founded fear of persecution because of his political opinion as a member of the Bangladesh Nationalist Party (BNP). The Tribunal rejected the applicant’s claims largely because it did not accept the applicant as a witness of credit. The proposed grounds of review of the Tribunal’s decision are that the Tribunal:

   a)made an error in saying that it was not satisfied the applicant was a member or activist of the BNP when he lived in Bangladesh;

   b)made an error in not considering the current situation in Bangladesh; and

   c)failed to consider the applicant’s case as a whole.

7. The first ground does not disclose any arguable case of jurisdictional error. It was for the Tribunal to determine whether it was satisfied the applicant was a member or activist of the BNP.

8. The second proposed ground has no substance. The Tribunal referred to the applicant’s submission that drew attention to an outbreak of violence in Bangladesh in January 2013 following the death sentences passed on senior figures of the Jamaat-e-Islami party for crimes against humanity during the 1971 war of independence. The Tribunal also referred to the submission made on behalf of the applicant that the Jamaat-e-Islami party was an ally of the BNP, and the passing of death sentences on senior figures of the Jamaat-e-Islami increased the risk that the applicant, as a member of the BNP, would suffer serious harm. The Tribunal rejected that submission because it said it found the applicant was not a member or activist of the BNP.

9. The third proposed ground, unparticularised as it is, also has no substance. It is apparent from its reasons that the Tribunal did consider the applicant’s claims in their entirety.

10. There is, then, the period that has passed between the date on which the Tribunal made its decision, and the date on which the applicant filed his application in this Court. The application was filed on 5 February 2014, almost eight months later. That is a substantial period.

11. Finally, there is the applicant’s explanation for the delay. The only explanation given by the applicant is his not having access to lawyers, and his ignorance of the rules and regulations of the Court. Given the substantial period of the delay, that explanation, if accepted, bears little, if any weight, in favour of the exercise of the discretion to extend time.

Conclusions and disposition

1. The applicant has not made out a case for the setting aside of the notice of discontinuance he filed in Court on 14 August 2014. I propose, therefore, to dismiss his application in a case, and also order that he pay the Minister’s costs of the application. I assess those costs in the amount of $1,500.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 November 2014