SZVGM v Minister for Immigration & Anor

[2016] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1602

Catchwords:
PRACTICE AND PROCEDURE – Power of court to set aside discontinuance of proceedings – relevant considerations.

Legislation:

Migration Act 1958, ss.417, 477

Federal Circuit Court of Australia Act 1999, s.15

Federal Court of Australia Act 1976, s.23

Federal Circuit Court Rules2001

Cases Cited:
Hunter v Leahy (1999) 91 FCR 214
Chen v Monash University [2016] FCAFC 66

Applicant: SZVGM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2821 of 2014

Judgment of: Judge Cameron

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Sydney

Delivered on: 21 June 2016

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner of Turner Coulson Immigration

Solicitors for the Respondents: Mr L. Leerdam of DLA Piper Australia

ORDERS

1. The applicant’s application in a case filed on 9 June 2016 be dismissed.

2. There be no order as to costs.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2821 of 2014

SZVGM

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons concern an application in a case filed by the applicant on 9 June 2016 seeking to set aside the discontinuance of these proceedings which followed his filing of a notice of discontinuance on 20 January 2015. 

2. The applicant had lodged an application for a protection visa alleging that he feared persecution in Lebanon.  His visa application was subsequently refused by a delegate of the first respondent (“Minister”) and the applicant was unsuccessful in obtaining a different result when his case was reviewed by the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent.  The Tribunal’s decision was made on 14 January 2014.

3. The applicant then applied to this Court for review of the Tribunal’s decision. The solicitor presently acting for the applicant, Mr Turner, deposed that the applicant discontinued that application to the Court on the advice of the solicitor who was acting for him at the time. According to submissions made to the Court in the present interlocutory application, the discontinuance was obtained in the context of the applicant seeking ministerial intervention in his case pursuant to s.417 of the Migration Act 1958 (“Act”).  Mr Turner deposed that on 9 December 2015 the Minister declined to exercise his powers under that section. 

4. On 15 December 2015 the applicant filed a second application in this Court seeking review of the Tribunal’s decision.  By letter dated 14 May 2016 the Minister’s solicitors wrote in that connection to the applicant’s solicitors, relevantly saying:

   We are instructed to write to you inviting you to file an Application in a Case in Federal Circuit Court proceedings SYG2821/2014 on behalf of your client, seeking an order to set aside the Notice of Discontinuance filed on 20 January 2015.

   We also put you on notice that, if an Application in a Case is not filed in SYG2821/2014 seeking an order to set aside the Notice of Discontinuance filed on 20 January 2015, we are instructed to seek an order in these proceedings requiring the applicant to file such an Application in a Case.

5. Of course, a notice of discontinuance does not prevent the discontinuing party from pursuing their claim at a later time within the applicable limitation period.  It does not operate as an issue estoppel or res judicata. However, in migration cases such as this s.477 of the Act sets a limitation period of only thirty-five days from the date of the Tribunal’s decision and so there is practical advantage in reinstating a proceeding rather than starting a new one and having to seek an extension of the time for the bringing of the proceeding.

6. There is no express power in the Federal Circuit Court of Australia Act 1999 or in the Federal Circuit Court Rules2001 to set aside a notice of discontinuance.  However, the absence of an express power will not prevent a statutory court such as this Court from preventing an abuse of process.  In Hunter v Leahy (1999) 91 FCR 214 French J said:

   It is accepted that courts of law and equity have general powers now accepted as an established part of their armory to prevent the abuse or frustration of their processes in relation to matters coming within their jurisdiction. The power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is conferred expressly by s.23 of the Act: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623 per Deane J. As Deane J went on to say in that case:

   Indeed, even in the absence of the provisions of s.23 the Federal Court would have possessed power to make such orders in relation to matters properly before it as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters. (at 219-220 [14])

7. Specifically in the context of a discontinuance, albeit at the appeal level, similar comments were made by the Full Court of the Federal Court in Chen v Monash University [2016] FCAFC 66. In particular the Full Court said:

   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.

   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 to protect the integrity of those processes. (at [40]-[41])

8. It should be noted that s.23 of the Federal Court of Australia Act 1976 is relevantly identical to s.15 of the Federal Circuit Court of Australia Act which provides:

   15  Making of orders and issue of writs

   The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:

   (a)    make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and

   (b)    issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.

9. The considerations which applied in Chen’s case apply equally to this case, notwithstanding that it is not an appeal.  As is apparent, the statutory powers of this Court are the same as the ones to which the Full Court of the Federal Court referred. 

10. There is no suggestion in this case that the notice of discontinuance was filed in circumstances or because of circumstances which would be described as an abuse of process.  For instance, it was not suggested that the bona fides of the advice of the applicant’s original solicitor which led to the discontinuance were questionable or ought to be impugned. 

11. Because there is no reason to suspect that the discontinuance represents or involved an abuse of process, the Court’s implied power to prevent such an abuse is not engaged.  As there is also no express power to set aside a discontinuance, the application in a case filed on 9 June 2016 must be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 29 June 2016