SZVHI v Minister for Immigration
[2020] FCCA 1988
•13 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVHI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1988 |
| Catchwords: MIGRATION – Visa – protection visa – application for review of decision by Administrative Appeals Tribunal –application for extension of time – application is an abuse of process – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), r.13.10(c) Migration Act 1958 (Cth), s.477 |
| Cases cited: Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 Walton v Gardiner (1993) 177 CLR 378 |
| Applicant: | SZVHI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 4296 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 July 2020 |
| Date of Last Submission: | 13 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2020 |
REPRESENTATION
| The Applicant in person |
| Counsel for the First Respondent: | Mr Creedon |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time filed on 3 December 2019 be dismissed pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth) on the basis that it is an abuse of process.
The applicant pays the first respondent’s costs fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 4296 of 2019
| SZVHI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in a Case filed on 4 May 2020, the first respondent (‘the Minister’) seeks orders that the application for an extension of time filed on 3 December 2019 be dismissed pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) on the basis that it is an abuse of process. The Application in a Case was supported by an affidavit of Ms Teah sworn 4 May 2020.
By an original application filed 3 December 2019, the applicant sought an order for an extension of time under s 477 of the Migration Act 1958 (Cth) (‘the Act’) for a judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 30 September 2014. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Protection (Class XA) visa (‘protection visa’).
The matter was heard on 13 July 2020.
For the reasons which follow I have concluded that the application in a case should be allowed and dismissed.
Background
The background to this matter is accurately set out in the submissions filed on 3 June 2020 on behalf of the Minister.
4. The applicant is a Chinese national who arrived in Australia on 2 June 2013 on a Visitor (Subclass) 600 visa.
5. On 2 September 2013, she lodged an application for a Protection (Class XA) visa, on the basis that in China, she was beaten up by strangers, and that this was orchestrated by an officer from the Ministry of Health who alleged that her business failed to meet food hygiene standards and attempted to extort money from her.
6. On 17 February 2014, the application for the Protection visa was refused by a delegate of the Minister.
7. On 14 March 2014, the applicant sought review with the second respondent (Tribunal). She was invited to a Tribunal hearing by letter dated 23 July 2014, with the hearing scheduled to occur on 12 September 2014. The applicant responded to the hearing invitation. On the morning of 12 September 2014, half an hour before the hearing was to commence, the Tribunal received a medical certificate which said that the applicant was unfit for work due to a “medical condition”. The Tribunal treated this as a request for an adjournment and in a letter dated 12 September 2014, postponed the hearing to 25 September 2014 (the postponement letter).
8. The applicant failed to appear before the Tribunal at the rescheduled hearing, and did not contact the Tribunal to explain her failure to appear or request the hearing be rescheduled. On 30 September 2014, the Tribunal made a decision on the review pursuant to s 426A of the Migration Act 1958 (the Act).
…
9. On 17 October 2014, the applicant sought judicial review of the Tribunal’s decision. The application was listed before the Federal Circuit Court (Judge Barnes) for a hearing on 28 October 2015. During that hearing, the applicant raised for the first time that she did not receive the postponement letter, as a result of which her Honour adjourned the hearing to enable the Minister to put on further evidence. The hearing resumed on 4 February 2016, at the conclusion of which her Honour dismissed the application with costs.
10. On 3 December 2019, the applicant filed an application with this Court, seeking an extension of time to apply for judicial review of the Tribunal’s 30 September 2014 decision. That is, seeking an extension of time to apply for judicial review of the same decision of the Tribunal which was the subject of the application dismissed by Judge Barnes. The proposed substantive grounds of review contend that the Tribunal failed to consider the applicant’s case, made findings ‘without supporting evidences’, and denied the applicant procedural fairness because it failed to disclose the existence and content of any certificate issued under s 375A or s 438 of the Act, and did not give her the opportunity to make submissions on the validity of such certificate. […]
Legislation
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (‘FCCA Act’) provides:
Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Rule 13.10 of the Rules provides:
Disposal by summary dismissal
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Applicant’s submissions
The applicant is self-represented in this matter and has not filed any written submissions regarding the Application in a Case filed by the Minister on 4 May 2020.
The applicant submitted that a friend of hers was in a similar case and that there had been a finding that the Minister had failed to disclose relevant information, and her friend had received a favourable result. The applicant thought that she might use the same process. The applicant was unable to point to any document or certificate that the Minister had failed to disclose, and the affidavit of Ms Taah sworn 4 May 2020 discloses at paragraph 4 that no certificate issued under section 437 or 38 of the Migration Act on either of the department or Tribunal files.
The proposed substantive grounds of review contend that the Tribunal failed to consider the applicant’s case, made findings ‘without supporting evidences’, and denied the applicant procedural fairness because it failed to disclose the existence and content of any certificate issued under s 375A or s 438 of the Act, and did not give her the opportunity to make submissions on the validity of such certificate.
First respondent’s submissions
In his submissions filed 3 June 2020, the Minister cites the decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 to support the proposition that proceedings should be stayed as an abuse of process if their continuance would be unjustifiably vexatious and oppressive because they seek to litigate anew a case which has already been disposed of by earlier proceedings.
Reference is also made to Gageler J’s decision in Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 where his Honour stated at [13]:
13. […] To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court.
The Minister says that the above principles apply equally to the present circumstances and that the applicant:
a)had already exercised her right to seek review of the Tribunal’s decision;
b)had an opportunity to appeal Judge Barnes’ decision and chose not to do so;
c)now seeks to ‘subvert the processes for an appeal by starting again in the original jurisdiction of this Court’;
d)has failed to particularise how the Tribunal failed to consider her case; and
e)has failed to raise any arguable case.
Regarding the certificate claims, the Minister submits that no non-disclosure certificate issued under the Act appears on either the Department or Tribunal files, and that Folio 46 confirms that no non-disclosure certificate was issued by the Minister or his delegate (cf Grounds 1, 4-7).
Consideration
I agree with the submissions of the Minister and find that this application is an abuse of the process of the Court for the reasons outlined above. The applicant had an opportunity to appeal the decision of Judge Barnes and did not do so. For the sake of completeness, having regard to the decision of the Tribunal and the decision of Judge Barnes, no arguable ground has been raised by the applicant.
For these reasons, the application will be dismissed on the grounds that the proceeding is an abuse of process.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 22 July 2020
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