Proceedings in the FCCA
17 On 7 November 2016, the applicant filed an application for judicial review. However, on 25 July 2018, the applicant's legal representative filed a notice of discontinuance.
18 On 21 August 2018, the applicant filed an application in a case seeking to set aside the notice of discontinuance and reinstate his review application. The FCCA judgment recorded (at [5], [8] and [9]):
[5] In his application in a case and accompanying affidavit Mr Singh stated that he was aware that his application had been withdrawn by his lawyer, but claimed that he did not have much knowledge and that he had done whatever his lawyer said, had signed what the lawyer told him to sign and had sent the notice of discontinuance to the court (although I note that the notice of discontinuance appears to have been signed and filed by the lawyer).
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[8] Mr Singh has been in Australia for some 10 years. It is apparent from this cross-examination that he has a good understanding of the English language. He completed senior secondary education in India. His evidence was that he was aware that he had discontinued the review application. He acted on the advice of his lawyers to do so. He knowingly authorised his lawyers to discontinue the proceedings, understanding the consequences. He agreed to do so because he was acting on the advice of his lawyers.
[9] Mr Singh's evidence was that after he discontinued the proceeding he decided that he had received poor advice from his lawyer. He agreed that it was in this sense that he claimed that he was misguided by his lawyer, who he said had indicated that his proceedings would not be successful and that it would be a good idea to discontinue. Mr Singh claimed that, it was after he later talked with friends, that he decided that it had been not a good idea to discontinue and now thought, on the basis of the advice of his friends, that his case may succeed. He also told the court that he was concerned about losing contact with the child and having to return to India.
19 The FCCA judge stated that the circumstances in which the Court was empowered to reinstate discontinued proceedings were limited, and set out the relevant principles by reference to the decisions of this Court, including of Ryan J in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (SZFOZ) and the Full Court in Chen v Monash University [2016] FCAFC 66 (Chen) (followed by Jagot J in SZUXV v Minister for Immigration and Border Protection [2016] FCA 1321 (SZUXV)).
20 At [17] of her Honour's reasons, the FCCA found that there was "nothing in the circumstances before the Court to establish that reinstatement was necessary in order to prevent an abuse of process or to protect the integrity of the processes of the court". At [18]-[19], her Honour gave the following reasons:
[18] Mr Singh made a deliberate and informed choice to file, through his lawyers, the notice of discontinuance. It was regularly filed in accordance with the Rules. I accept that Mr Singh acted on the advice of his lawyers, but there is nothing in the evidence or in Mr Singh's submissions to raise any concern in relation to the circumstances in which that advice was given or the nature of that advice. There is also nothing to raise even an arguable suggestion of fraud or duress in the present case.
[19] The fact that the Applicant has now changed his mind and decided that he may have some prospects of success, is not such as to indicate that the discontinuance was procured by fraud or duress or that there was any abuse of process. He was aware he discontinued the proceedings. He authorised his lawyers to do so, knowing the consequences. He acted on the advice of his lawyers. The court's power to set aside the notice of discontinued is not enlivened.
21 Although it was not necessary to go further, the FCCA judge considered whether, if the power to reinstate the proceeding was enlivened (or it had been open to the Court to have regard to the interests of justice), the applicant had any prospects of success on his application for judicial review.
22 At [20] of her Honour's reasons, the FCCA judge concluded that the application for judicial review had no reasonable prospects of success, giving the following reasons (at [20] and [21]):
[20] … In essence, his application for a partner visa was refused by the Tribunal not simply on the basis of the sponsor's evidence (as he complained in submissions today), but in light of his own evidence that while he and his sponsor had previously lived together as husband and wife, some 10 months to a year earlier they had separated and since that time had lived apart. There was also no evidence before the Tribunal that they had joint financial commitments or that they share any obligations or responsibility, although they occasionally met and Mr Singh gave the sponsor money on occasion.
[21] Unsurprisingly, in these circumstances the Tribunal found that on Mr Singh's evidence (as well as his sponsor's) the relationship had ceased (albeit that her evidence was that it had ceased at an earlier time). Regardless of when the parties had separated, the Tribunal was satisfied the relationship had ceased. It was also unable to be satisfied that at the time of the decision the parties were in a spousal relationship, because the Applicant had not provided any evidence concerning the relevant aspects of spousal relationship referred to in the definition of "spouse" in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). No even arguable jurisdictional error has been identified in the Tribunal's approach in this respect.