FEDERAL COURT OF AUSTRALIA

Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316

APPLICANT NACT OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N392 of 2002

JACOBSON J

3 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application to reinstate an appeal that was discontinued by a notice of discontinuance filed on 24 September 2002.  The notice of discontinuance was filed pursuant to O 52 r 19(1)(a).  The leave of the court was not required.  O 52 r 19(1A) provides that if a notice of discontinuance is filed and served under subsection (1) the appeal is abandoned.

2                     The first question which arises is whether I have power to set aside the notice of discontinuance.  The applicant relied upon a decision of Cox J in Fowler v Renmark and Paringa District Hospital Inc (1988) 51 SASR 506. However, that was a case in which the notice of discontinuance was filed in error.  So too was the decision of Mansfield J in Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 at [5]. 

3                     In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268  Gaudron J referred, at [7] of her judgment, to the remarks of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530.  His Honour there observed that it would not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.  Gaudron J referred at [9] to the distinction between orders operating by way of a final determination of the matters in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings. 

4                     There was nothing in the notice of discontinuance which left it open to the applicant to commence further proceedings and indeed the provisions of O 52 r 19 (1A) indicate that no such proceedings could be commenced. Although a real question arises as to whether in light of the principles to which I have referred, I do have power to reinstate the appeal, I am prepared to proceed upon the basis that the court, in an appropriate case, has inherent power to set aside a notice of discontinuance if it is necessary to prevent injustice. 

5                     The applicant is a citizen of Fiji.  He arrived in Australia on 17 March 2001.  He subsequently applied for a protection visa.  His application was refused by a delegate of the Minister whose decision was affirmed by the Refugee Review Tribunal in a decision dated 18 October 2001 and handed down on 7 November 2001.  The applicant is an ethnic Indian who claimed to have a well-founded fear of persecution in Fiji on the ground that he will be harmed by native Fijians if he returns. 

6                     There was evidence before the RRT that the applicant's home had been invaded by Fijians on two occasions.  The first was in May 2000 which was during the time of the coup which displaced the Chaudry government.  The second invasion occurred a few weeks later.  The RRT considered country information which included a report by DFAT about the position after the coup.  The report included a statement that from a community perspective some Indo-Fijians remain at risk of intimidation and harassment and that although crime had been brought under control by the military and the police, there were still isolated cases of minor harassment, mainly in the form of threats and low level theft.

7                     The report continued by stating that:

The assessment that was made was that the risk of significant communal mistreatment of Indo-Fijians was low.

8                     The RRT found that the applicant feared that he may be beaten, robbed, mistreated or killed by native Fijians if he returns and that he would not have his business or a job.  It was for reasons of these fears, at least in part, that he was unwilling to return to Fiji.

9                     The RRT was satisfied that the applicant had in the past been mistreated and robbed by native Fijians.  The RRT found that since the May 2000 coup the applicant's house had twice been invaded by native Fijians who demanded money.  His shop was robbed and vandalised, his vehicles were taken and damaged and his successful business had been taken over by native Fijians.

10                  The RRT then stated:

I note that the Applicant’s experience is consistent with the country information.  There was a breakdown of law and order at the time of the coup.  I also note that the country information states that law and order has been restored, elections have been held and while there continue to be reports of isolated casers of minor harassment, mainly in the form of low level theft, DFAT assess that the risk of significant communal mistreatment of indo-Fijians remains at a low level.

While it is of course possible that the Applicant could again become a victim of crime in Fiji, I am not satisfied that there is a real chance that the Fijian government would deny the Applicant the protection of the law.

In light of the country information I am not satisfied that there is a general risk of ethnic Indians being subject to harassment such as beatings and robberies.  Nor am I satisfied that the information supports a conclusion that there is a general risk that the authorities in Fiji would be unable or unwilling to protect them if they were.

11                  The RRT concluded by stating that it was not satisfied that there was a real chance that the applicant would be persecuted should he return to Fiji and it was not satisfied that any such fear of persecution that he held subjectively, was well founded.

12                  On 12 April 2002 Whitlam J heard an application for review brought by the present applicant and an application for review brought by the applicant's wife.  Both applications were heard together, the cases were argued by reference to the RRT’s decision given on the husband's application.

13                  Whitlam J referred at [4] to the submissions made by Mr Newman, solicitor, who appeared for the husband and wife.  Mr Newman directed His Honour to the paragraph from the country information to which I have referred above and submitted that the use of the words "low level" indicated an error of law because the RRT was said to have failed to consider whether the applicant had a well founded fear of persecution, as stated by the High Court in Chan v The Minister for Immigration and Ethnic Affairs (1989-90) 169 CLR 379.

14                  His Honour stated at [5]:

It was submitted by Mr Newman that the Tribunal had fallen into error in equating the concept of crime with that of persecution.  In its findings, the Tribunal had apparently treated the violence and mistreatment to which the husband had been subjected as instances of random crime.  Mr Newman submitted that this misunderstood the case raised by the husband, namely, that he was the subject of violence because of his ethnicity.  Accordingly it was submitted that the finding of the Tribunal that there was not a real chance that he would be persecuted should he return to Fiji was flawed because it addressed a fear of crime rather then the fear of persecution on the basis of his ethnicity.  Mr Newman contended that the Tribunal had in that way asked itself the wrong question which involved jurisdictional error of law and the Tribunal’s decisions should therefore be set aside.

15                  The case was heard before the decision of a Full Court of this court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 and also, before the decision of the High Court in Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.  At the time of his Honour's decision there was a conflict in the authorities in this court as to the effect of the privative clause in s 474 of the Act.

16                  It is evident that his Honour took a wide view of the scope of jurisdictional error.  His Honour said at [9]:

Before expressing a view on the conflict in those authorities, I should say that I am not satisfied at all that the Tribunal made any error of law at all in is approach in these two decisions.  The reference to crime in no way diverted the Tribunal from its task of assessing what was the real chance of persecution on the grounds of race were the applicants to return to Fiji.  So much is clear from the general terms in which the Tribunal expressed its decision.  I do not consider it asked itself the wrong question.  Certainly it did not so explicitly.  Nor may it be inferred that it did so by reference to the way in which it referred to the evidence before it or the way in which it framed its reasons for its findings.  Accordingly I do not think there is any question of a jurisdictional error of law in this case.

17                  The court file indicates that on 31 July 2002 the appeals brought by the husband and the wife were before Sackville J.  His Honour made orders for the conduct of the appeals and provided for them to be listed for hearing before the Full Court for a half-day hearing in November 2002.  His Honour made orders for the filing of written submissions and for any amended notice of appeal to be filed within 14 days, that is, by 14 August 2002.

18                  On 19 September 2002 the solicitors for the Minister wrote to the solicitors for the applicant stating that the appeal in the husband's matter had been set down for hearing on 11 November 2002.  The letter stated that the applicant was in breach of orders of the court which required appeal books to be filed and stated that if the applicant continued to fail to comply with the court's orders, the solicitors would seek instructions to apply for the appeal to be dismissed for want of prosecution. 

19                  The letter concluded by stating:

Please contact us to indicate whether you intend to pursue your appeal.

20                  The applicant’s sworn affidavit in this application states that he was telephoned by the lawyer for the Minister who asked what he and his wife were going to do with their appeals.  He states that he replied that he and his wife had no legal representation and that they could not proceed with the appeals.

21                  The applicant was cross-examined by Ms Rayment, solicitor, who appeared for the Minister, she was the solicitor with whom the applicant had the conversation.  She did not put  in issue what was said and it would therefore, seem clear that she was not a necessary witness.  She put to the applicant only that he phoned her rather than that she phoned him.  I think that this is likely to be correct because the letter of 19 September asked the applicant to contact the solicitors.

22                  Mr Newman sought to re-examine the applicant to elicit further evidence of what was said, the applicant gave some evidence of his conversation but to the extent that this departed from what he said in his affidavit, I would not accept it as an accurate account of what occurred.

23                  On 23 September 2002 the Minister's solicitors sent a facsimile to the applicant attaching "As requested" notices of discontinuance in relation to both matters.  The facsimile requested that the applicant and his wife sign the notice and return it by facsimile as soon as possible.

24                  The notice of discontinuance which was filed was a facsimile which was signed by the applicant.  It was sent on 24 September 2002 and filed on that date.

25                  Some time after the notice of discontinuance was filed the applicant made a request to the Minister under s 417 of the Migration Act to substitute a decision that was more favourable to him than the decision of the Tribunal.  The Minister declined to exercise his power under this section.

26                  On 8 January 2003 the applicant signed an undertaking to pay the Minister's costs of proceedings N392 of 2002.  It appears that this undertaking covered the costs of the proceedings on the appeal.

27                  On 28 April 2003 the applicant filed an application in the South Australian registry purportedly under s 75(v) of the Constitution and s 39B of the Judiciary Act seeking orders for the issue of constitutional writs having the effect of quashing the decision of the RRT.  The applicant was not represented in those proceedings by Mr Newman but he was represented by another solicitor.

28                  Mr Newman correctly in my view conceded that the application that was filed in the South Australian registry was an abuse of process because it sought to re-litigate a matter which had been decided adversely to the applicant by Whitlam J. 

29                  On 12 February 2004 Mansfield J made an order in the South Australian proceedings that the application be dismissed.  Costs questions were adjourned for determination on 5 March 2004.

30                  I am not satisfied on the facts before me that the justice of the case would require me to exercise a discretion in favour of the applicant to reinstate the appeal even assuming that I have power to do so. 

31                  Mr Newman submitted that it was unjust to allow the applicant not to reinstate the appeal because he signed the notice of discontinuance at a time when he had no legal advice.  He submitted that Ms Rayment, knowing that the applicant was without legal representation, owed a duty to the applicant to caution him against the step he was proposing to take.

32                  There is authority for the proposition that a solicitor for a party engaged in litigation with another person does not normally owe any duty to its client's opponent.  See Business Computers International Ltd v Registrar of Companies (1983) 3 WLR 1134;  Hardware Services Pty Limited v Primac [1988] 1 QdR 393, at 397;  Thors v Weekes (1989) 92 ALR 131 at 150;  see also R M Jackson Jackson and Powell on Professional Negligence Sweet & Maxwell London 2002 at paragraph 10-062.  It is likely that the same principle applies even where a party is not represented but here there was nothing in the evidence put before me to suggest known reliance or assumption of responsibility by Ms Rayment.  Indeed, that was not part of the applicant's case.  His case as outlined by Mr Newman on this application was confined to the bare fact that Ms Rayment knew that the applicant was unrepresented.

33                  In any event the applicant's own evidence establishes that he took advice from a solicitor a week before he signed the notice of discontinuance.  I would infer that he did so on legal advice.

34                  In those circumstances any suggestion that there is injustice to the applicant cannot be sustained nor do I accept that the applicant did not understand at the time the general effect of filing a notice of discontinuance.  His conduct subsequent to the filing of the notice is consistent only with the view that the appeals had been abandoned.

35                  This is evident firstly from the request made to the Minister under section 417.  This provides support for finding that the applicant decided to pursue that course rather than to prosecute the appeal.

36                  Also the undertaking to pay the Minister's costs supports the same view of the position taken by the applicant.

37                  Moreover, although the effect of his evidence was that he did not have funds when the notice of discontinuance was filed, his evidence establishes that when he did have funds he did not pursue an application to reinstate the appeal.  Instead he filed an application in South Australia.  No explanation has been given for why that course was taken rather than to seek reinstatement of the appeal but it does suggest yet again the applicant accepted that the appeal be abandoned.

38                  It is not to the point that the notice of appeal was lodged in time.  The simple fact is that it was discontinued.  Even if I have power to set the discontinuance aside, no satisfactory explanation has been given for why it ought to be reinstated.

39                  In any event it seems to me that the reasons given by Whitlam J, in particular in the passage at paragraph 9, which I have set out above are correct.  Accordingly in my opinion the appeal even if it was allowed to proceed would not be successful.

40                  I do not think that the RRT used the "real chance" test as a substitute for the convention term "well founded fear" so as to invite error.  See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR, 559 at 571-572.

41                  The RRT took into account independent country information which established that law and order had been restored in Fiji and that there was a low level of risk of mistreatment.  Importantly, the substance of the RRT's finding was that the Fijian Government would provide effective protection in the event that the applicant was harassed by the local community in Fiji.  In my view, no error of law is involved in this approach and no jurisdictional error is disclosed.

42                  For those reasons the orders which I will make are that the application be dismissed with costs.

Associate:

Dated:  23 March 2004