MZXRL v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This matter arises out of an appeal from a decision of Riley FM, given on 17 July 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal, which in turn affirmed a decision of a delegate of the Minister to refuse a protection visa to the appellant. The ground of the appeal is that the incompetence of the second interpreter in the proceeding before the Federal Magistrate prevented the appellant from giving evidence and denied the appellant natural justice. 2 On 29 March 2007, the Tribunal sent a letter to the appellant inviting her to attend the hearing on 16 May 2007. The appellant sent back a response form on 15 May 2007 answering the question whether she wished to come to a hearing by ticking both the affirmative and negative boxes on the form and, in fact, she did not attend the hearing. In the light of the appellant's non-appearance, the Tribunal made its decision without taking any further steps to enable the appellant to appear. The Tribunal found that the appellant was a national of the People's Republic of China but found that the claims of the appellant lacked detail and sufficient information. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of Convention-based persecution if returned to China. 3 The original grounds raised before the Tribunal were claimed persecution on the basis of her Catholic religion and imputed political opinion. The appellant was born into a Catholic family and claimed that her grandparents were imprisoned and her parents suffered because of their religion. She claimed to have been baptised at an underground Catholic church and suffered discrimination, particularly in education and employment, due to her religious family background. The appellant stated that she became a business manager to make it easier to obtain an Australian visa. She claimed that she was detained by Chinese police for 10 days with other churchgoers and had been brainwashed. She also made an allegation that another churchgoer had disappeared and that she feared that if she remained in China, she would be arrested, so she came to Australia as part of a tour group and left the tour. 4 The Tribunal, having considered the matter, formed the view that the claims of the appellant lacked detail and sufficient information to persuade the Tribunal that the requirements for refugee status had been made out. The Tribunal was therefore not satisfied that the appellant suffered serious harm or was likely to suffer serious harm as a result of her religion, or had any well-founded fear of persecution for a Conventional reason. On the appeal before the Federal Magistrate, evidence was called from the appellant and from Ms Chen, said to be a migration agent, relating to a claim of migration fraud. These claims were rejected by the Magistrate, after a careful consideration and a lengthy and detailed examination of the evidence and the relevant considerations. 5 The basic view formed by Riley FM below was that in view of the changes in the appellant's statement and the vague and unverifiable nature of much of her evidence, the fact that she had adduced no evidence from her friends and other people she mentioned nor any documentary evidence to support her claims, and the fact that there is no independent evidence which tended to substantiate the existence of an alleged migration agent, her Honour did not accept that the applicant received any advice from an agent, and formed the view that the appellant was not advised not to attend the Tribunal hearing. Therefore, the Magistrate found that the alleged fraud had not been made out. 6 In the present case, the appellant says that she needs further time to consider her case because she needs to obtain more material and seek the advice of a new lawyer. The ground of appeal raised was referred to in a notice of appeal dated 7 August 2003. By letter dated 20 January 2009, the migration agent, Asia Pacific Lawyers, wrote to the court, notifying that they no longer acted for the applicant. Subsequently on 5 February 2009 a notice of discontinuance was filed by the appellant in this proceeding. The notice of discontinuance is entitled "Notice of Discontinuance Order 52 Rule 19". That order in the Federal Court Rules provides that an appellant may file and serve a notice of discontinuance at any time before the hearing of the appeal, without the leave of the court, and importantly, if a notice of discontinuance is filed and served under subrule (1), the appeal is abandoned. The subject matter of the present application before me is that the applicant now seeks to withdraw the notice of discontinuance, and has made an oral application in court to that effect, this morning. 7 The application to withdraw the notice of discontinuance is opposed by the Minister, who contends that the consequence of the filing of a notice of discontinuance is to abandon the appeal, and that the effect of the abandonment is that no fresh appeal can be lodged. The Minister also submits that the costs under O 52 r 19(3) of the Federal Court Rules automatically makes a party filing a notice of discontinuance liable to pay the costs of the other party. I have been referred to several authorities in relation to this matter, and the two principal authorities which I think are applicable in the circumstances of this case, indicate that once a notice of discontinuance has been filed, then the automatic effect of that filing is to abandon the proceedings, and this appears from the decision in Akbar v Minister for Immigration and Multicultural Affairs [2002] FCA 209. 8 The second authority which bears on the point is a decision of Branson J, which was delivered in the case of El-Masri v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCA 742, and in that case, at paragraph 24 of her reasons, her Honour says that the effect of subsection 24(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) is that the applicant has a right to appeal from a judgment of a Federal Magistrate, but it does not give a right to appeal from that judgment from time to time. The applicant in that case exercised the right to appeal from the judgment of the Federal Magistrate when he filed and served the notice of appeal. 9 Her Honour concluded that the appeal is to be understood to have been abandoned as a consequence of the notice of discontinuance, and she expressed the view with which I agree, that subsection 24(1) of the Act, on its proper construction, does not authorise an applicant to institute a second appeal from the same judgment by way of a reviver or withdrawal or otherwise where there has been a valid and effective notice of discontinuance filed. As I have indicated earlier, the learned magistrate gave long and careful consideration to the merits of the application, and the grounds before her, and in my view, there is no error demonstrated in relation to that reasoning. However, the ground of appeal - the ground sought to be raised - relates to the misinterpretation and the alleged denial of natural justice on the part of that interpreter, which it is said, would justify the granting of leave to withdraw the notice of discontinuance. 10 Apart from the fact that I consider there is no power in this case to withdraw the notice of discontinuance, I am not persuaded on the material before me that it has been shown that there was any error in the reasoning. There was no indication of any evidence available to justify the assertion that there was any particular misrepresentation made, or that any misrepresentation was material, or that the interpretation caused the decision to miscarry in any way at all. In other words, I do not consider there is any substance in the basis of the appeal, which would persuade me to exercise any discretion which I have in favour of the appellant. Accordingly, I would not exercise any discretion, even if there were power to do so, in relation to this case, as I do not consider any reasonable basis for argument as to error has been made out. 11 I note that there has been some discussion in the authorities as to whether a single judge of the court has power to make a decision in relation to a notice of discontinuance, and the matter has been commented on in two cases, by judges of this court, both of whom who have taken the view that a single judge does have the power to deal with such matters subject to the limitations expressed in the decisions of those reasons for judgment in those two cases. Those decisions are judgments of Jacobson and Hill JJ. In Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316, Jacobson J dismissed an application to reinstate an appeal discontinued by a notice of discontinuance. 12 In a later case of NACU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1444, Hill J, in the interests of comity, followed the judgment of Jacobson J whilst having some reservations as to whether a single judge had jurisdiction under s 25 of the Act. I note these two cases in passing. 13 Finally, there is one other case that I should mention in relation to this matter and that is the Full Court decision in Christodoulou v Disney Enterprises Inc [2006] FCAFC 183 at [25] to [28], in which the Court adverted to the circumstances in which there was power to order the withdrawal or to grant leave to withdraw a notice of discontinuance, but the reasoning essentially relied on limitations to that power and the decision really turned on the view which their Honours took in relation to the lack of any reasonably arguable case. 14 Having regard to the above considerations, I am persuaded firstly that the notice of discontinuance effected an abandonment of the proceeding, such that it could not be revived and that, as a consequence, costs follow automatically and the proceeding is at an end. In addition, insofar as the court has any discretion in relation to the matter, I am of the view that no ground has been placed before me which would constitute a reasonably arguable ground which would warrant, in any way, the exercise of a discretion in favour of the appellant in this case. Accordingly, the oral application before me to withdraw the notice of discontinuance is dismissed with costs. On the evidence furnished I am satisfied that it is appropriate to fix these costs in a lump sum in the amount of $7,027. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.