SZVCD v Minister for Immigration - [2019] FCCA 3049

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
Federal Circuit Court of Australia Act 1999 (Cth), s.15

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3049
Decision Date: 21 October 2019

CaseChat Overview and Summary

The applicant, SZVCD, sought to reinstate a proceeding that had been discontinued against the Minister for Immigration. The application was heard by Judge Cameron in the Federal Court of Australia.

The central legal issue before the Court was whether it possessed the power to reinstate a proceeding after it had been discontinued, and if so, what considerations were relevant to the exercise of that power.

Judge Cameron considered the inherent jurisdiction of the Federal Court to control its own process and prevent abuses. The Court noted that while there is no express statutory provision granting the power to reinstate a discontinued proceeding, such a power can be inferred from the Court's inherent jurisdiction. The exercise of this power is discretionary and would typically be considered in circumstances where the discontinuance was a mistake, or where it would be unjust or an abuse of process to allow the discontinuance to stand. The Court would weigh the prejudice to the parties and the interests of justice.

The Court ultimately dismissed the application to reinstate the proceeding.

Orders