MZAOE v Minister for Immigration and Border Protection

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

TRACEY J: 1 This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia ("FCC") dismissing the applicant's application to reinstate his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): MZAOE v Minister for Immigration & Anor [2016] FCCA 609. 2 The applicant is a citizen of Sri Lanka. He is a Tamil. He arrived in Australia on 24 June 2012 as an irregular maritime arrival. On 20 November 2012, he applied for a Protection (Class XA) visa. He claimed to fear persecution because of his Tamil ethnicity, his imputed association with the Liberation Tigers of Tamil Eelam and his unlawful departure from Sri Lanka. 3 On 3 January 2014, a delegate of the Minister refused to grant the applicant a protection visa on the basis that the applicant's fear of persecution was not well-founded and that there was not a real risk that the applicant would suffer significant harm if he were to return to Sri Lanka. 4 On 13 March 2014, the applicant lodged an application for review of the delegate's decision in the Tribunal. 5 On 16 May 2014, the Tribunal dismissed the application. 6 The Tribunal was satisfied that the applicant had been notified of the delegate's decision on 14 January 2014. This meant that the last day for lodging the application was 11 February 2014. The Tribunal noted the applicant's claim that the application was faxed to the Tribunal on 3 February 2014 and stated that "a search of the Tribunal's fax server log had showed no record of the fax being received on that date." 7 The Tribunal found that it had no jurisdiction to review the delegate's decision because the applicant had lodged the application after the expiry of the 28 day time limit imposed by s 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") and reg 4.31 of the Migration Regulations 1994 (Cth). 8 On 27 November 2014, the applicant filed an application in the FCC seeking judicial review of the Tribunal's decision. The applicant also sought an extension of time within which to make his application to the FCC. 9 On 2 March 2015, Mr Wardlaw of the Asylum Seeker Resource Centre filed a notice of address for service, which stated that he had been appointed as the applicant's lawyer. 10 On 30 June 2015, the acting Director of Technology Services of the Sydney office of the Tribunal swore an affidavit in which he provided logs and reports of the Tribunal's fax transmissions which supported the conclusion that "the Tribunal did not receive any facsimile transmissions from [RAILS's fax number] on 3 February 2014." 11 On 23 September 2015, Mr Brendan McCarthy of the Asylum Seeker Resource Centre filed an address for service notifying the FCC of a change of legal representation. 12 On 21 October 2015, Mr McCarthy filed a notice of discontinuance in respect of the applicant's application dated 27 November 2014. 13 On 12 January 2016, the applicant filed an application in the FCC seeking reinstatement of his application dated 27 November 2014. 14 On 31 March 2016, the FCC judge dismissed the applicant's reinstatement application. His Honour referred to the decision of Perram J in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280, in which his Honour traversed the relevant authorities concerning setting aside a notice of discontinuance and concluded, at [13]: "Four principles may be distilled from the authorities referred to above: 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." 15 The primary judge referred to an affidavit which had been filed by the applicant on 12 January 2016 in support of his reinstatement application. His Honour made the following observations in respect of the affidavit, at [1]-[2]: "[1] The Affidavit in support filed contemporaneously asserts that the Applicant, being a Tamil from Sri Lanka, does not read, write or speak English. It asserts further that he received a negative decision from the Department of Immigration regarding his Application for a refugee protection visa, upon which he instructed his then lawyers, RAILS, to file "an appeal to the Refugee Review Tribunal" and that he was told by RAILS that such appeal had been filed. [2] He was then subsequently informed that the Refugee Review Tribunal ('Tribunal') rejected his Application for want of jurisdiction and that in due course he contacted the ASRC, which advised him that he had good grounds for appeal. The Affidavit asserts at paragraphs 12-13: '12. Later ASRC lawyer Brendan McCarthy advised me that I had to withdraw and discontinue my application filed in the Federal Circuit Court. He did not explain to me why but just prepared a notice of discontinuance on my behalf and signed it on my behalf and filed. I did not agree to the filing of the notice of discontinuance in this matter/proceedings. 13. At all times I wanted to proceed with my Application filed in these proceedings as at all times I was advised that I had merits and good grounds for my application." 16 The primary judge referred later, at [17] of his reasons, to the applicant's affidavit dated 12 January 2016 and set out his findings in respect of the circumstances surrounding the filing of the notice of discontinuance: "Here, from the Applicant's Affidavit filed 12 January 2016, it is apparent that the Notice of Discontinuance was filed by the Applicant's lawyer with his knowledge. Even accepting, as I am prepared to do in the Applicant's favour, that he did not understand a word that Mr McCarthy may have said to him (there is no information in the Affidavit suggesting that Mr McCarthy and the Applicant spoke through an interpreter but I assume they must have done), the fact is that the Notice of Discontinuance was filed to the Applicant's knowledge. Furthermore, the Applicant's assertion at paragraph 13 of his Affidavit filed 12 January 2016 that 'at all times I was advised that I had merits and good grounds for my application', is clearly untrue. The lawyer from RAILS had told the Applicant, in terms, that his Application had no chance of success." 17 Having found that the notice of discontinuance was filed with the applicant's knowledge, his Honour considered that there was "no utility, even if all other matters were to be regarded favourably to the Applicant (which I do not think they are), to reinstating the [a]pplication. [It] was hopelessly out of time and doomed to fail before the Tribunal." 18 On 14 April 2016, the applicant filed an application in this Court seeking leave to appeal from the decision of the FCC. 19 The applicant foreshadowed the following grounds: "1. The Learned Judge erred in law and/or in fact in refusing to set aside the notice of discontinuance filed on 21 October 2015 on the grounds that the preparation and/or filing of the notice of discontinuance and/or the causing of the filing of the notice of discontinuance by the applicant by the applicant's former lawyer was an abuse of process; 2. The Learned Judge erred in law and/or in fact in refusing to set aside the notice of discontinuance filed on 21 October 2015 on the grounds that the preparation and/or filing of the notice of discontinuance and/or the causing of the filing of the notice of discontinuance by the applicant by the applicant's former lawyer was procured by duress; 3. The Learned Judge erred in law and/or in fact in refusing to set aside the notice of discontinuance filed on 21 October 2015 on the grounds that such a setting aside was within the jurisdiction of the court in order to avoid substantial injustice; 4. The Learned Judge erred in law and/or in fact in refusing to reinstate the application originally filed on 27 November 2014 on the grounds that the application of the applicant to the Tribunal was hopelessly out of time and doomed to fail before the Tribunal." 20 On 22 April 2016, orders were made for the filing of written submissions. The Minister filed written submissions on 29 July 2016. The applicant did not file or serve any written submissions in support of his application. 21 The FCC's decision to dismiss the applicant's reinstatement application is interlocutory in nature. As a result, the applicant requires leave of the Court to appeal from the decision: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Leave to appeal will be granted where the decision of the lower court is attended by sufficient doubt to warrant reconsideration and where substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. 22 Section 412(1)(b) of the Act provided, at the relevant time, that "an application for review of an RRT-reviewable decision must be made in the approved form, be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision and be accompanied by the prescribed fee (if any)." 23 The Minister contended that the FCC's decision was not attended by sufficient doubt to warrant reconsideration. He submitted that there was no evidence to gainsay the primary judge's finding that the applicant had knowledge of the filing of the notice of discontinuance. There existed no exceptional circumstances which would allow the FCC to exercise its power to set aside the notice of discontinuance. He further submitted that the FCC's finding that the applicant's application had no reasonable prospects of success was correct given that it had found that the Tribunal did not have jurisdiction to review the applicant's application as it was made outside of the prescribed time limit. 24 The applicant appeared in person at the hearing of his application this morning. He had the assistance of an interpreter. The reasons for decision of the FCC and the Minister's written submissions were translated for the applicant before the hearing commenced. 25 The applicant was invited to make any submissions which he wished in support of his application. He made none. 26 I have carefully examined the primary judge's reasons for decision. I accept the Minister's submission that the primary judge's decision was not attended by sufficient doubt as to warrant reconsideration for the reasons which he advanced. 27 The application must be refused with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.