SZUXV v Minister for Immigration (No 2)
[2016] FCCA 1556
•22 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUXV v MINISTER FOR IMMIGRATION & ANOR (No 2) | [2016] FCCA 1556 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – application in a case seeking reinstatement of review application following discontinuance – application in a case dismissed. |
| Legislation: Federal Circuit Court Rules 2001(Cth) Federal Circuit Court of Australia Act 1999 (Cth) s.15 Migration Act 1958 (Cth) |
| Cases cited: BLR15 v Minister for Immigration & Anor [2016] FCCA 1260 BZAGD v Minister for Immigration [2015] FCCA 3471 Chen v Monash University [2016] FCAFC 66 Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 DJL v The Central Authority (2000) 201 CLR 226 Kansra v Minister for Immigration & Anor [2014] FCCA 2726 MZZDN v Minister for Immigration & Anor [2015] FCCA 69 MZZIO v Minister for Immigration & Anor [2014] FCCA 618 SZFOZ v Minister for Immigration [2007] FCA 1137 |
| Applicant: | SZUXV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2288 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr L Gell of Clayton Utz |
INTERLOCUTORY ORDERS
The Application in a Case filed on 30 March 2016 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 $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2288 of 2014
| SZUXV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 30 March 2016. The application seeks numerous orders bearing upon the principal proceedings which were an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). None of the relief sought could be granted in view of the fact that the applicant discontinued the principal proceedings on 8 October 2015. The application was therefore treated as an Application in a Case to set aside that discontinuance as a condition precedent to any of the other relief sought.
The application is supported by an affidavit made by the applicant on 26 March 2016. I received that affidavit as evidence. The applicant was not required for cross-examination on it. The applicant was for a time legally represented on the Application in a Case, but her lawyer has recently withdrawn. The applicant dealt with the matter today on her own behalf. She is currently held in immigration detention.
The procedural background to this matter is dealt with in written submissions filed on behalf of the Minister on 15 June 2016.
The applicant is a citizen of Nepal. She entered Australia under a false name on a vocational education visa in November 2008. The visa was valid until 22 December 2010.
On 22 July 2013, the applicant applied for a protection visa under a different name. On 7 February 2014, the delegate refused to grant the applicant a protection visa. On 15 July 2014, the Tribunal affirmed the delegate's decision.
On 15 August 2014, the applicant applied for judicial review of the Tribunal's decision.
On 17 September 2014, the Court made orders that the application be listed for a show cause hearing on 2 June 2015. On the night prior to the hearing date, the Minister received a letter from the applicant dated “1 May 2015” which suggested that the applicant would not appear at the hearing by reason of the applicant's godmother's death in the then recent Nepalese earthquake. The applicant requested that the hearing be adjourned until the end of June 2015.
The applicant did not appear at the hearing on 2 June 2015. After considering the applicant's letter, the Court attempted to contact the applicant but was unsuccessful. For reasons that need not be revisited here, the Court was not persuaded of the letter's veracity and the proceedings were dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) for non-appearance.
On 29 June 2015, the applicant applied for reinstatement of the matter pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules. In an affidavit accompanying the reinstatement application, the applicant offered no further explanation for her non-attendance at the hearing on 2 June 2015, other than simply attributing it to “my cultural thing”.
The reinstatement application was listed for interlocutory hearing on 11 September 2015. Again, the applicant did not attend the hearing. However, that non-attendance was excused because an incorrect notification had been sent by the Registry. The matter was adjourned to 9 October 2015. The applicant was notified of the new hearing date by the registry and the Minister.
On 8 October 2015, the day before the hearing of the reinstatement application, the applicant filed the Notice of Discontinuance. The applicant was not represented at this time. The Minister asked for the matter to remain listed for hearing so as to deal with the issue of costs. On 9 October 2015, the Court ordered that the applicant pay the Minister's costs and disbursements of and incidental to the discontinued application. On 16 October 2015, in accordance with the Court's orders, the Minister sent a costs letter to the applicant enclosing a copy of rule 16.05 of the Federal Circuit Court Rules.
Reinstatement application
On 30 March 2016, the applicant filed the Application in a Case. The Application in a Case was accompanied by an affidavit deposed to by the applicant on 26 March 2016. In her affidavit, the applicant relevantly asserts that she was “prevented” from attending the hearing on 9 October 2015 by reason of her:
a) depression since being assaulted by her brother-in-law in Nepal; and
b) fear of returning to Nepal.
The affidavit also alludes to a doctor's report which would be filed in order to substantiate her claims to have been prevented from attending the hearing. No doctor's report has been filed, nor has any other material been filed in support of the applicant's claims.
Notably, neither the applicant's Application in a Case, nor its accompanying affidavit, seeks an order that the discontinued application be reinstated. However, the Court proceeded on the basis that the documents are, in substance, an application for orders to that effect.
The Minister’s submissions also deal with the relevant legal principles. I agree with those submissions and adopt them, noting that they are consistent with the principles I enunciated recently in BLR15 v Minister for Immigration & Anor [2016] FCCA 1260.
The Minister notes that there is no express power in the Federal Circuit Court Rules to set aside a Notice of Discontinuance. Nor is there an express power in either the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act) or the Migration Act 1958 (Cth).
Nonetheless, the Minister submits and I accept that the Court has power to reinstate a discontinued application. That power arises as an implied power of the Court, or under s.15 of the Federal Circuit Court Act. However, it may only be exercised in limited circumstances.
In SZFOZ v Minister for Immigration [2007] FCA 1137 (SZFOZ) Ryan J upheld a judgment of the Federal Circuit Court refusing an application to set aside a Notice of Discontinuance. At [15], [17] and [20], his Honour relevantly held:
"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.
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.
…
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."[1]
[1] It is probably inaccurate to describe the power as an "inherent power", or as a power derived from the "inherent jurisdiction" of the Court. The power is implied from or incidental to the statutory jurisdiction of the Court: see Chen at [16]-[18] and [22], referring to DJL v The Central Authority (2000) 201 CLR 226
The approach of Ryan J in SZFOZ has been endorsed by the Federal Circuit Court in Kansra v Minister for Immigration & Anor [2014] FCCA 2726 at [23]-[25] per Turner J and in MZZDN v Minister for Immigration & Anor [2015] FCCA 69 at [51]-[55] per Burchardt J.
The Minister notes that there has previously been conflicting authority, which suggests that the power to set aside a discontinuance extends beyond cases of abuse of process, fraud or mistake, and extends to whenever the interests of justice dictate that that is the appropriate course[2]. The Minister submits that this authority should not be followed, and that the narrower construction set out in SZFOZ is the preferred construction of the Court’s power to set aside a Notice of Discontinuance.
[2] Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 at [27]-[28]
Support for this contention has recently been provided by the Full Federal Court in Chen v Monash University [2016] FCAFC 66 (Chen). The Court held that the power to reinstate a discontinued application is a limited power. It may only be exercised in order to prevent an abuse of the processes of the Court or to protect the integrity of those processes[3]. The Court does not have an implied or express power to reinstate a discontinued appeal simply “in the interests of justice”[4]. The Court's power to reinstate will only arise “where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act”[5]. Finally, the power to reinstate is discretionary so that, when enlivened, the prospects of success of the proposed application should be taken into account in its final exercise[6].
[3] Chen at [40]-[41]
[4] Chen at [42]. Cf. BLR15v Minister for Immigration and Border Protection [2016] FCCA 1260 at [23]
[5] Chen at [46]
[6] Chen at [48]
I proceed on the basis that the principles set out in Chen also govern the power of this Court to reinstate a discontinued proceeding. Notably, in an appeal from this Court's decision in BZAGD v Minister for Immigration [2015] FCCA 3471[7] (BZAGD), the Federal Court considered that the principles governing this Court’s power to reinstate discontinued proceedings were those stated in Chen[8]. It is noteworthy that s.15 of the Federal Circuit Court Act is in substantially the same terms as s.23 of the Federal Court of Australia Act 1976 (Cth), which provision was relevantly considered in Chen at [40]-[41]. In light of Chen the principles set out in BZAGD and MZZIO v Minister for Immigration & Anor [2014] FCCA 618 (MZZIO) are less relevant than at the time this Court made orders on 8 April 2016. In particular, the Minister submits and I accept that the Court does not have power to reinstate a discontinued proceeding simply in order to prevent “injustice”. However, in applying the test in Chen, it may be helpful to note some of the questions which Judge Whelan opined to be relevant at [14] of MZZIO, namely:
·Did the applicant knowingly and voluntarily file the Notice of Discontinuance?
·Was the filing of the Notice of Discontinuance procured by fraud or duress?
·Did the filing of the Notice of Discontinuance otherwise involve an abuse of process?
·If the Notice of Discontinuance was set aside, does the application for review have no reasonable prospects of success?
[7] See BZAGD v Minister for Immigration [2016] FCA 670
[8] BZAGD at [16]-[17]
I invited oral submissions today from the applicant on the question why the Court should intervene to set aside her Notice of Discontinuance. She said that she now wanted to continue with her case and had been depressed. In her affidavit she also refers to depression and identifies additional legal issues that she would like to raise by way of an amended application in the principal proceedings.
In my opinion, none of the matters raised by the applicant enlivens the discretion of the Court to intervene to set aside the discontinuance, let alone compels an outcome in favour of the applicant. The Minister deals with the present circumstances in his submissions. I agree with those submissions.
The circumstances of this case are not sufficient to enliven the Court's power to reinstate the discontinued application. By the Notice of Discontinuance, the applicant voluntarily compromised and concluded her originating application.
The applicant knowingly and voluntarily signed and filed the Notice of Discontinuance. There is no evidence that the Notice of Discontinuance involved an abuse of process affecting the applicant. Nor is there evidence that its filing was procured by fraud. There is no evidence to suggest that the applicant's mental health at the time of the discontinuance was such to impair her capacity to act voluntarily when she lodged the Notice of Discontinuance. Nor is there evidence before this Court to suggest that the applicant did not understand the effect of the Notice of Discontinuance at the time of filing. The applicant has not offered any explanation for the lengthy delay of more than six months in filing her application to have the proceedings reinstated.
Accordingly, I find that the applicant's filing of the Notice of Discontinuance was a deliberate and informed act. No abuse of process was occasioned by the filing of the Notice of Discontinuance. Nor is it necessary to reinstate the application in order to protect the integrity of the Court's processes.
The Minister’s submissions also deal with the prospects of success of the proposed amended substantive application. It is unnecessary to deal with that issue given that I have found that the Court’s discretion to intervene is not enlivened in the present circumstances.
For completeness, however, I observe that I agree that the additional issues sought to be raised by the applicant would not have reasonable prospects of success.
I conclude that the Application in a Case should be dismissed and I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale in respect of an interlocutory hearing. I am told that the Minister’s costs exceed the prescribed amount. The applicant did not wish to be heard on costs.
I will order that 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 $3,416.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 June 2016
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