MZADF v Minister for Immigration and Border Protection

THE SUBSTANTIVE APPLICATION 5 The applicant applies today for an extension of time in which to seek leave to appeal from an interlocutory judgment given in the Federal Circuit Court on 12 September 2016. The applicant had sought to set aside a notice of discontinuance which had been filed by him in the Federal Circuit Court. Her Honour found that the applicant in the Federal Circuit Court had knowingly and voluntarily filed the notice of discontinuance, and that the filing of the notice had not been procured by any fraud or duress. The Minister opposes the application for an extension of time and, even if granted, contends that the application for leave to appeal should be dismissed.

BACKGROUND 6 The applicant has been in this country for almost five years. He travelled from Sri Lanka to Australia and, in Australia, applied for a protection visa in May 2012. He contended that if he returned to Sri Lanka he would face a real chance of serious or significant harm at the hands of the authorities, on account of, amongst other things, an imputed political opinion of support of the Liberation Tigers of Tamil Eelam (LTTE), having regard to his status as a failed asylum seeker.

THE DELEGATE 7 That application was considered in July 2012 by a delegate of the Minister, but the delegate declined to grant the applicant a protection visa. In August 2012 the applicant duly applied for review of the delegate's decision to the Refugee Review Tribunal, as it then was.

IN THE TRIBUNAL 8 In March of 2014, quite some time after the application for review, the Tribunal delivered a decision by which it affirmed the delegate's decision to refuse to grant a protection visa to the applicant. 9 It did so having made adverse credibility findings on the basis that there were substantial and material inconsistencies and variations in the claims and evidence advanced by the applicant. 10 It did not accept that the applicant would face a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future.

IN THE FEDERAL CIRCUIT COURT 11 The applicant then took the matter further by applying to the Federal Circuit Court of Australia, seeking judicial review of the decision of the Tribunal. 12 He lodged that application in April of 2014, contending that the Tribunal had failed to consider his claim, first on religious grounds, secondly on the imputed political grounds, and finally he claimed the Tribunal was wrong to find that Sri Lankan laws prohibiting unlawful departure were laws of general application. At that stage, the applicant was represented by lawyers. 13 On around 5 May 2015 his solicitors filed a notice of discontinuance, and as the applicant has expressly confirmed with me in his submissions today, that notice of discontinuance was filed on the advice of his lawyers, which he accepted. 14 Subsequently, with the assistance of those legal advisers, the applicant made a request to the Minister to exercise one of his powers for personal public interest to make a determination either under s 48B or a favourable substitution decision under s 417 of the Migration Act 1958 (Cth). In about September 2015, the Minister refused that request. 15 Once again, in October 2015, the applicant applied to the Federal Circuit Court, seeking review of the decision of the Tribunal. On 17 June 2016 the Federal Circuit Court ordered that the application be dismissed. The finding was made that there was noncompliance with s 486D of the Act (disclosure of other judicial review proceedings) and therefore the application was incompetent. 16 In July 2016, the applicant then filed an application in the proceeding which he had previously discontinued in May 2015. By that application, the applicant asked the Federal Circuit Court to set aside his notice of discontinuance, which he had filed on legal advice. That matter was heard in September 2016 and is the decision from which the applicant now seeks an extension of time within which to apply to appeal. 17 That application was dismissed with costs, following the decision of this Court in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280, per Perram J. The primary judge followed the principles (at [13]) in that authority, which are essentially that: 1 A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process. 2. It may also be set aside where its filing was procured by fraud or duress. 3. There is a jurisdiction to set such a notice aside to avoid substantial injustice. 4. None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance 18 The primary judge having regard to those principles, made the following findings on the material before the Court. First, there was no evidence before the Court to establish that the filing of notice of discontinuance was an abuse of process. Secondly, the applicant had also not shown that the filing was procured by any fraud or duress. Thirdly, the grounds advanced in the judicial review application did not raise an arguable case and therefore the refusal of the application to set aside the notice of discontinuance would not give rise to any substantial injustice. Finally, that the applicant had knowingly and voluntarily filed the notice of discontinuance. 19 On that basis, the primary judge concluded that the discretionary power to set aside the notice of discontinuance was not enlivened and, in any event, it would have been inappropriate to exercise the power even if it had been enlivened.

IN THIS COURT 20 As I say, before me today, the applicant has repeated the submission that the notice of discontinuance was filed on legal advice, on which he relied, so that he could then proceed with an application to the Minister. 21 The order which dismissed the application was clearly interlocutory in nature, and so it was necessary for the applicant to apply to this Court for leave to appeal from the order. An application to file an application for leave to appeal must be filed within 14 days from the date on which it was made. The applicant failed to do so and needs an extension of time in which leave in which to seek leave to appeal. 22 In relation to an extension of time, it is necessary to examine the extent of and explanation for the delay and also whether the prospects of success of the application are reasonable. 23 In support of the application for an extension of time, the applicant relies upon an affidavit which was affirmed on 16 October 2016, saying that he was in danger of deportation, and describing the history to which I have referred. He also annexed news reports to his affidavit, the first reports on the detention of deportees, stating the situation has not changed, with deportees from Australia still being detained on arrival in Sri Lanka; the second, The World Report of 2015, reporting the events of 2014; and the third from a newspaper discussing the release of a human rights report from the US State Department. In that affidavit, he also says that many other applications for review have been rejected because of favourable embassy reports which are clearly biased towards the Minister. He enclosed those documents to justify his application to enable the Court to rule that the situation in Sri Lanka had not changed for the better. He further stated that he believes that if the 16 Sri Lankan deportees can be arrested and detained for investigations without any arrest warrant against them, that would happen to him if he were deported. He believed that this would include torture. 24 This affidavit does not explain the delay in filing the application. It goes to the merits of the application, albeit not specifically to any point of jurisdictional or judicial error. 25 The application for extension of time sets out some six grounds for the application itself. To the extent there are any specific grounds, such as the applicant's health, there is no evidence in support of these grounds. To the extent there are complaints about the steps taken by the Tribunal or the primary judge, they are generic and unparticularised grounds which do not demonstrate any appellable error affecting the order made by the primary judge as to the notice of discontinuance. It is that notice and the ruling in relation to it which are the matters which the application should be directed. There are no submissions which might elaborate in any way on the proposed appeal grounds, other than the affidavit material to which I have referred. 26 Proposed ground are as follows: 1 Application for protection visa has been rejected by Immigration Department Delegate and by the Tribunal as well as Federal Circuit Court and hence, the Applicant was very depressed and could not think properly. 2. As a consequence, the Applicant is suffering from serious mental health problems. 3. The Applicant was unable to seek counselling and mental health deteriorated further. 4. Migration Law and applications are complex, requiring specialised skills. The Applicant is a foreign national and a person applying for protection as a refugee. 5 The Applicant has little or limited understanding of court proceedings in Australia. It was difficult for the Applicant to identify the next course of action. 6. The Learned Judge erred in law and/or in fact in failing to find that the decision of the Tribunal was affected by jurisdictional error and/or that the Tribunal had misapplied the Migration Regulations and/or the Migration Act and/or the Tribunal had misapplied the applicable test and/or applied the wrong test to ascertain whether the Applicant was a genuine refugee and required protection in accordance with the law and/or the decision of the Tribunal and/or the manner the hearing was conducted by the Tribunal was unreasonable an all circumstances for the following reasons. 1. The Tribunal and/or the Federal Circuit Court failed to take into account relevant evidence and/or took into account irrelevant evidence in that they ignored the fact that if the Applicant returned to Sri Lanka there was a real risk that the Applicant would suffer harm or loss of life, 2. The Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and there fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law. 3. The Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicant. 4. The Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant. 5. The Tribunal and /or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims of the Applicant. 6. The Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to consider the evidence of the Applicant in totality and cumulatively. 7. The Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims of the Applicant. 8. The Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give a reasonable opportunity to the Applicant to respond to the issues put to him abd [sic] thereby denied the Applicant procedural fairness 27 Those matters might be relevant grounds if the primary judge should have permitted the notice of discontinuance to be set aside. On that central point the only argument advanced was that the applicant relied on legal advice in discontinuing and pursuing a request to the Minister. 28 It is necessary to consider the specific reasoning process of the primary judge, in which the following important conclusions were reached. First, it was not shown that the filing of the notice of discontinuance was an abuse of process. Secondly, the applicant has not established that it was procured by any fraud or duress. It was obtained on his own independent legal advice and, I infer, to enable submissions to the Minister to proceed. Refusal of the application to set aside would not in itself give rise to substantial injustice, and the notice was knowingly and voluntarily filed. 29 Those conclusions reached by the primary judge were plainly open, and her Honour was, in my view, correct to dismiss the application to set aside the notice of discontinuance. The applicant has not demonstrated any appellable error attending that determination nor cast doubt on the lawfulness of the order of the primary judge. Further, he has not shown how an application for leave to appeal would enjoy any reasonable prospects of success, nor how refusal would cause injustice. In those circumstances, the application for an extension of time must be dismissed with costs, and I so order. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.