SZVCD v Minister for Immigration
[2019] FCCA 3049
•21 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3049 |
| Catchwords: PRACTICE & PROCEDURE – Discontinuance – application to reinstate proceeding after discontinuance – power of Court to reinstate discontinued proceeding – relevant considerations. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438 Australian Citizenship Act 2007 (Cth), s.12 Federal Court of Australia Act 1976 (Cth), s.23 |
| Cases cited: Chen v Monash University (2016) 244 FCR 424 |
| First Applicant: | SZVCD |
| Second Applicant: | SZVCE |
| Third Applicant: | SZVCF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2588 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 21 October 2019 |
| Date of Last Submission: | 21 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2019 |
REPRESENTATION
| The first applicant appeared in person |
| Solicitors for the Respondents: | Ms J. Noakesmith (DLA Piper Australia) |
THE COURT ORDERS THAT:
Statements made to the Court by the first applicant at the hearing on 21 October 2019 which disclosed the content of communications between him and his then-solicitor be confidential and not be disclosed to persons who were not present in court at that time.
THE COURT FURTHER ORDERS THAT:
The first applicant be appointed the litigation guardian of the third applicant.
Compliance with r.11.02 of the Federal Circuit Court Rules 2001 be dispensed with.
The applicants’ application in a case filed on 20 September 2019 be dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $2,600.00.
The name of the first respondent be amended in the Court record to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2588 of 2014
| SZVCD |
First Applicant
| SZVCE |
Second Applicant
| SZVCF |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants commenced proceedings in this Court by an application filed on 18 September 2014 in which they sought judicial review of a decision made by the second respondent (“Tribunal”) affirming a decision made by a delegate of the first respondent (“Minister”) to refuse them visas. The applicants’ application was listed for final hearing on 14 March 2017. However, on 9 August 2016 they filed a notice of discontinuance. On 20 September 2019 the applicants filed an application in a case seeking to reinstate their case.
For the reasons which follow, the application in a case will be dismissed.
Background facts
The applicants are citizens of Bangladesh. The first and second applicants arrived in Australia on 28 August 2003. On 29 October 2012 the first applicant lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”). The second and third applicants are the first applicant’s wife and daughter and were included in the application as members of his family unit but do not have claims of their own.
The first applicant claimed in his protection visa application that he feared returning to Bangladesh because:
a)of a legal dispute that he, his brother and his father had with his brother’s business partner (“Partner”). The first applicant claimed that the Partner brought proceedings against them in 2004 for misappropriation of property and a bank loan. He said that the subsequent Court verdict in favour of him, his brother and father in 2008 had angered the Partner and, because the Partner had political influence, he feared being “targeted”, “harmed” or “abducted” if he returned to Bangladesh;
b)one of his brothers was abducted and had been missing since 2005; and
c)Islamic fundamentalists might “target” and “harm” him for failing to observe “conservative Islamic values” and because of his “westernised attitudes and behaviours”.
During his protection visa interview with the Department on 1 February 2013 the first applicant also told the delegate that he feared returning to Bangladesh because he would be targeted for his perceived “wealth” and “westernisation” as a result of living in Australia since 2003.
On 19 March 2013 the applicants’ application was refused by the ministerial delegate. The applicants then applied to the Tribunal for a review of that departmental decision. They were unsuccessful before the Tribunal and in their application to this Court of 18 September 2014 sought judicial review of the Tribunal’s decision.
The Tribunal’s decisions and reasons
After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Migration Act 1958 (“Act”).
APPLICANT’S EVIDENCE
In his affidavit in support of the present application in a case the first applicant pointed to recent authorities considering certificates under s.438 of the Act which at the time of the Tribunal’s decision provided:
s.438 Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
(1)This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The first applicant deposed that, as a result of those cases’ statements of the law, the applicants had a new ground of judicial review because he believed that a s.438 certificate should have been attached to their application.
The first applicant’s evidence was that recent developments in the understanding of the law meant that he and his family had not been afforded procedural fairness and that should the case not be reinstated they would not receive “fair justice”.
At the hearing of this interlocutory application the first applicant also said that this proceeding had been discontinued in 2016 so an application for ministerial intervention could be made in circumstances where by that time his son, who is not a party to this proceeding, had acquired Australian citizenship presumably, although it was not stated, pursuant to s.12(1)(b) of the Australian Citizenship Act 2007.
RESPONDENT’S EVIDENCE
Jessica Ruth Noakesmith, a solicitor in the employ of the solicitor acting for the Minister deposed that on or about 26 September 2014 and 30 September 2014 respectively her firm had received files from the Department and the Tribunal. She deposed that these files contained all the documents that had been before the Tribunal at the time it made its decision.
Ms Noakesmith deposed that on 1 October 2019, she reviewed the files and did not find any s.438(1)(b) certificates or any other certificate. She did, however, locate a Disclosure Decision Checklist which was not included in the Court Book which was exhibit “A” on the present application in a case. This document formed annexure “C” to her affidavit.
The Disclosure Decision Checklist, dated 19 March 2013 was “to be completed at the time of making the RRT reviewable decision”, that is to say the delegate’s decision, and contained the following questions:
Are there any s437 related documents/information on the file/papers?
…
Are there any s438(1)(a) related documents/information on the file/papers?
…
Are there any s438(1)(b) related documents/information on the file/papers?
…
The answer “No” was selected as the response to each of those questions.
CONSIDERATION
There is no provision in either the Federal Circuit Court of AustraliaAct 1999 or the Federal Circuit Court Rules 2001 which provides expressly for the reinstatement of a proceeding following a discontinuance. However, in exceptional circumstances the Court has an implied power to take such a step. In Chen v Monash University (2016) 244 FCR 424, at pages 432-433 [40], [41] and [46] the Full Court of the Federal Court relevantly said this:
40.The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
41.We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or protect the integrity of those processes.
…
46.While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice was filed as a result of fraud in which the appellant was not complicit.
Section 15 of the Federal Circuit Court Act is an analogue of s.23 of the Federal Court of Australia Act 1976.
In this case, there was no evidence of circumstances such as those referred to in Chen’s case. The first applicant told the Court that the proceeding had been discontinued so that ministerial intervention might be sought. That does not amount to the sort of abuse or frustration of or interference with the Court’s processes which engages the power to reinstate a discontinued proceeding which finds its source in s.15 of the Federal Circuit Court Act. As the Minister submitted, the Court’s power to set aside the discontinuance filed on behalf of the applicants is not enlivened in this case.
In any event, as in Chen’s case, were the power to be enlivened, the prospects of success for the case which according to the first applicant’s affidavit the applicants would seek to bring, are so low it would not be appropriate to exercise the power in the applicants’ favour. In that regard, it is to be recalled that Ms Noakesmith deposed to there having been no s.438(1)(b) certificate or any other certificate amongst the papers she inspected. In those circumstances, the applicants’ desire to prosecute an argument based on s.438 seems most unlikely to have any prospects of success.
Finally, at the hearing of this application, the first applicant told the Court that it was not safe for him to return to Bangladesh with his family. That argument seeks to raise issues concerning the merits of the decision to refuse him a protection visa which is not something which this Court can entertain. The Court’s relevant power is to undertake judicial review of administrative decisions; it has no power to substitute the Tribunal’s decision on the merits of the visa application with one of its own.
For these reasons, the application in the case filed on 20 September 2019 will be dismissed.
COSTS
As the application is to be dismissed, the Minister has sought an order for his costs. There is nothing in the conduct of this proceeding or anything which has been put to me which suggests that costs should not follow the event as they would in the ordinary course. Indeed, the first applicant has conceded that the Minister is entitled to be compensated for his expenses.
The scale amount for a matter dismissed at the stage this one has been dismissed is $3,737. Ms Noakesmith who appears for the Minister has advised me that the Minister’s solicitor and client costs in this matter are $3,473. The Minister seeks $2,600 which the first applicant concedes is not unreasonable although I note that he has indicated that he would have difficulty paying that amount. I agree that it is a most reasonable figure in the circumstances. I find that $2,600 is an appropriate amount to award the Minister.
CONCLUSION
The applicants’ application in a case filed on 20 September 2019 will be dismissed.
The first and second applicants are to pay the first respondent’s costs fixed in the amount of $2,600.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 1 November 2019
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