BZAGD v Minister for Immigration and Border Protection

1. The notice of appeal be dismissed.
2. The application for leave to appeal be dismissed.
3. The applicant pay the first respondent's costs of the application for leave to appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant has filed both a notice of appeal and an application for leave to appeal in respect of a judgment of the Federal Circuit Court given on 24 December 2015. 2 There is some complexity in the procedural history of the matter before the Federal Circuit Court. 3 On 18 December 2013, the applicant commenced a proceeding in the Federal Circuit Court by which he sought judicial review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 6 September 2013 to affirm a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa. As the application was out of time, the applicant required an order from the Court to extend the period of time for filing such an application. The applicant subsequently discontinued the first proceeding on 24 September 2014. 4 On 11 November 2014, the applicant commenced a second proceeding which also sought judicial review of the decision of the Tribunal. However, contrary to s 486D of the Migration Act 1958 (Cth) ("the Act"), the applicant did not plainly indicate in his application that he had previously brought judicial review proceedings in respect of the decision of the Tribunal. 5 On 8 December 2014, the first court appearance in the second proceeding took place. It would appear that at that hearing, following submissions made by the Minister which were accepted by the applicant, the Federal Circuit Court understood the application in the second proceeding as amounting to an application for leave to withdraw the notice of discontinuance filed in the first proceeding. Accordingly, the Court made directions for the applicant to file and serve an application for leave to withdraw the notice of discontinuance in the first proceeding, but made those orders as part of the second proceeding. 6 On 23 December 2014, the applicant filed an "application in a case" (as interlocutory applications in the Federal Circuit Court are known) in the first proceeding seeking an order granting the applicant leave to withdraw the notice of discontinuance filed in the first proceeding. On 9 February 2015, the Court heard the application in a case, and it handed down its judgment on 24 December 2015. 7 The Federal Circuit Court ordered that both the application in a case and the second proceeding be dismissed. The primary judge noted that there was no express power in the Federal Circuit Court Rules 2001 (Cth) to set aside a notice of discontinuance. However, his Honour accepted that the Court has an inherent power to set aside a notice of discontinuance in exceptional circumstances in order to prevent injustice or avoid an abuse of its processes, relying on SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (Ryan J). 8 The applicant, who was represented by Counsel before the Federal Circuit Court, argued that the applicant should be permitted to withdraw the notice of discontinuance because he filed it on the mistaken understanding that if he continued the proceedings and failed he would be exposed to criminal penalties. His counsel submitted that the situation was analogous to the situation where a contract was entered under a unilateral mistake of fact; so, it was submitted, the contract would be void. However, there was no agreement between the applicant and the respondents. The primary judge held that the applicant made a voluntary decision to file the notice of discontinuance and that he was not induced by the respondents to do so. His Honour considered that there was no basis to set aside the notice of discontinuance. 9 The primary judge went on to consider the applicant's prospects of success in his application for an extension of time in the first proceeding. His Honour noted that the first proceeding had been filed about two months out of time so that an extension of time under s 477(2) of the Act would be required. His Honour noted the factors relevant to an extension of time set out in SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 (Barker J). His Honour noted that the Minister did not assert any prejudice, but also noted that there was no adequate explanation for the delay. 10 The primary judge then turned to the merits of the substantive application, noting that the grounds were that the Tribunal's decision was affected by legal error and that the Tribunal did not afford the applicant procedural fairness. More specifically, the applicant's counsel argued that the Tribunal had failed to consider all of the claims made by the applicant, particularly that the Tribunal, in considering the application for complementary protection, did not consider the applicant's particular vulnerabilities or how he would be affected by even a short period of detention on his return. 11 His Honour considered that the Tribunal did have regard to the applicant's age. The applicant had not identified any other particular vulnerabilities to the Tribunal. His Honour said that the Tribunal had considered each of the applicant's claims. His Honour said that there was no denial of procedural fairness in circumstances where the applicant had been invited to appear before the Tribunal to present his claims and evidence and he took advantage of that opportunity. His Honour also considered that, to the extent the applicant sought to cavil with the Tribunal's finding, the applicant's claims were exaggerated and his evidence should be rejected. He was attempting to have the Court engage with the merits of the Tribunal's decision, rather than identifying any jurisdictional error. 12 For these reasons, his Honour held that the proposed application for judicial review had no real prospects of success. His Honour held that even if the notice of discontinuance were set aside, the application for an extension of time would be refused. The primary judge went on to hold that it was also appropriate for the second proceeding to be dismissed. Although his Honour did not say so in terms, I understand the basis of the dismissal to be that an extension of time to file the second proceeding would be refused because it had no real prospect of success. 13 The applicant has filed both a notice of appeal and an application for leave to appeal in this Court. The first application before the Federal Circuit Court was to set aside the notice of discontinuance, and the second was an application for extension of time to file the second application for review. Both applications were dismissed. The orders of the Federal Circuit Court were interlocutory, so that leave to appeal is required. The factors relevant to whether a grant of leave to appeal should be made are, principally, whether the decision from which leave to appeal is sought is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused, supposing the original decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 14 The applicant appeared at the hearing and made oral submissions with the assistance of an interpreter. He did not file any written submissions. His oral submissions were confined to restating his evidence before the Tribunal that he had experienced and witnessed violence and torture in Sri Lanka and was afraid of returning there. 15 The sole ground set out in the applicant's proposed notice of appeal is that the primary judge erred in law in applying the "well-founded fear test". However, the primary judge was not required to, and did not, consider the "well-founded fear test", and no such issue was raised before the Federal Circuit Court. 16 The application for leave to appeal states "the decision is not in accordance with rules". No such error can be discerned from the primary judge's careful and thorough judgment. His Honour's consideration of the circumstances in which a notice of discontinuance may be set aside was correct except perhaps in one respect. His Honour considered that the Federal Circuit Court has an implied power to set aside a notice of discontinuance in order to prevent injustice. To the extent that his Honour may be taken to be saying that the power may be exercised in the interests of justice, it is inconsistent with a judgment of the Full Court of the Federal Court in Chen v Monash University [2016] FCAFC 66 delivered after the judgment of the Federal Circuit Court. 17 In Chen, the Court said, relevantly: 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 to protect the integrity of those processes. 42 It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in "the interests of justice". … 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 were filed as a result of fraud in which the appellant was not complicit. 47 In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal "in the interests of justice", which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal. 18 However, even if his Honour stated the test too widely, that favoured the applicant and did not affect the outcome of the application. 19 In case he was wrong, his Honour proceeded to consider whether the extension of time to file the application should be granted. His Honour's approach to this issue was orthodox. His Honour's analysis of the applicant's prospects of success in his substantive application was, in my view, correct. 20 Finally, the applicant has said in an affidavit filed in this Court: I think there is some problem in the interpreting at RRT and also I am unhappy with the decission from Federal Circuit Court. (Error in original.) 21 This was not a ground relied on before the Federal Circuit Court, and no details of the allegation were provided to this Court. Therefore, this ground cannot succeed. 22 For these reasons, the applicant's application for leave to appeal will be dismissed and the appeal he has purported to commence by notice of appeal will be dismissed. The applicant will be ordered to pay the respondent's costs of the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.