FEDERAL COURT OF AUSTRALIA

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137

SZFOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 702 OF 2007

RYAN J

3 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the existing respondent be amended to read “Minister for Immigration and Citizenship”.

2.                  The Refugee Review Tribunal be added as second respondent to the proceedings herein.

3.                  The motion on notice filed on 2 July 2007 seeking leave to appeal from the orders of the Federal Magistrates Court of Australia of 2 April 2007 be refused.

4.                  The purported notice of appeal filed on 23 April 2007 be struck out.

5.                  The appellant pay the first respondent’s costs of the proceedings in this Court, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The first respondent (“the Minister”) has raised an objection to the competency of the appeal by the appellant against orders of Driver FM on 2 April 2007, dismissing an application for reinstatement of an application in the Federal Magistrates Court, and to set aside orders which had been made by the Federal Magistrates Court on 20 June 2006 for costs in relation to that application.

2                     By way of background, the appellant, a Fijian citizen, first arrived in Australia on 23 September 2003 and, on 13 October 2003, lodged an application for a protection visa.  The application was refused by a delegate of the Minister on 15 October 2003 and that refusal was affirmed by the Refugee Review Tribunal (“the Tribunal”) in a decision handed down on 11 February 2004.  On 25 January 2005, the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. 

3                     On 31 May 2006 the appellant filed a notice of discontinuance in relation to that application and orders were made by Driver FM on 20 June 2006 that the appellant pay the Minister’s costs and disbursements of and incidental to the discontinued application.  On 12 February 2007, the appellant applied to the Federal Magistrates Court to re-open the matter on grounds that the appellant had “fresh evidence” to support his case.  Further, the appellant requested that the Federal Magistrates Court entertain a further application and that the appellant’s bridging visa be extended until the hearing.  In an affidavit filed on 23 March 2007, the appellant indicated that he had sought Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (“the Act”) on 19 June 2006 after filing the notice of discontinuance.  That request had been refused on 20 September 2006. 

4                     In reasons for judgment given at the end of the hearing on 2 April 2007, Driver FM dismissed the application to reinstate the discontinued proceeding as insufficient cause had been shown for taking that course.  The learned Federal Magistrate held that it was not apparent on the material before him that any injustice had occurred in the matter.  His Honour considered that the appellant had merely changed his mind after his request for Ministerial intervention had been refused.

5                     His Honour had regard to the grounds of review raised in the amended application and concluded;

‘[12]   That is not to say that the proposed amended application would be doomed.  It would face difficulties but there is sufficient in it to support a serious contest over the validity of the Tribunal decision.

[13]    I find that the proposed amended application does raise legal issues that, notwithstanding the difficulties apparent would merit a hearing if I were wrong in my finding as to the insufficient cause advanced to reinstate the application.  I take into account the Minister’s submissions in paragraphs 5.2 to 5.3 of his written submissions but, in my view, those would have been matters to deal with at a final hearing.’

6                     His Honour also considered the issue of jurisdiction and noted that, if he were wrong in holding that insufficient cause had been shown for reinstating the proceedings, there would also be an objection in that 84 days had passed since the original application had been filed and discontinued.

7                     By notice of appeal filed in this Court on 23 April 2007, the appellant sought to appeal from the orders of Driver FM made on 2 April 2007, which were explained in reasons published under the name SZFOZ v Minister for Immigration [2007] FMCA 465.  The grounds in that notice of appeal challenged the learned Federal Magistrate’s findings.  The notice of appeal also asserted that procedural unfairness had occurred when the Federal Magistrate refused a request that the hearing of his application to set aside the discontinuance be vacated because of the absence of Counsel for the appellant leaving only an instructing solicitor to appear for the appellant.  The appellant also asserts that no sufficient legal advice had been given to him in 2005.

8                     The order sought by the appellant is as follows;

1.      The Federal Court to overturn all previous decisions in this matter and remit the matter to the Refugee the [sic] Review Tribunal.

9                     On behalf of the Minister, it was contended in a notice of objection to competency that the appeal instituted by notice dated 23 April 2007 should be dismissed as incompetent because it was from an interlocutory judgment and no leave to appeal has been obtained.  In this context, it was contended that the order of Driver FM of 2 April 2007 was interlocutory because it did not finally determine the rights of the parties.

10                  By notice of objection to competency dated 19 June 2007, the Minister contended;

‘1.        Pursuant to Order 52 Rule 18(1) of the Federal Court Rules (“Rules”), the Notice of Appeal be dismissed as incompetent.

Particulars

(a)  The judgment of Federal Magistrate Driver pronounced on 2 April 2007, the subject of the Notice of Appeal, is an interlocutory judgment.  The Appellant has not sought, and the Court has not granted, leave to appeal from an interlocutory judgment as required by Order 52 Rule 10(2) of the Rules and section 24(1A) of the Federal Court Act;

(b)  The Notice of Appeal was not filed within 7 days after the date on which the interlocutory judgment, the subject of the Notice of Appeal, was pronounced.  The Appellant has not sought, and the Court has not granted, leave to file the Notice of Appeal outside the period stipulated by, and as required by, Order 52 Rules 10(2A)(b) of the Rules.

(c)  Further, and in the alternative, the grounds raised in the Notice of Appeal and the supporting affidavit are without merit.’

11                  The notice of appeal filed by the appellant on 23 April 2007 purports to appeal from the whole of the judgment of Driver FM, given on 2 April 2007.  However, by a cross notice of motion filed on 2 July 2007, the appellant moved for orders;

‘1.        To waive all rules and regulations and extend the time for the filing of the Amended Notice of Appeal and the supporting affidavit based on its merits.

2.         Have the matter listed on its merit.’

12                  The supporting affidavit there referred to was filed on 4 July 2007 and annexed a copy of a previous affidavit which had been filed in the Federal Magistrates Court.  That affidavit traced the earlier procedural history of the appellant’s efforts to obtain a protection visa and continued;

‘5.        I filed a Notice of Discontinuance on 31 May, 2006 because I did not have legal representation at that time and I did not have enough evidence to support my case.

6.         I also wrote to the Minister for discretion under s 417 on 19 June 2006.

7.         The Minister refused to exercise section 417 on 20 September, 2006.

8.         I have attached with my Affidavit three statements as new evidence to support my application.

9.         As a youth I took an interest in politics and I openly supported the Fiji Labour Party.

10.       During my school days I took an active part politically in support of the Fiji Labour.

11.       I organized campaigns, seminars and meetings and distributed pamphlets for the Labour Party.

12.       I was harassed and physically assaulted by the local indigenous Fijians because they believed that I was anti-Fijian.

13.       I reported these to the authorities but nothing was done about it.

14.       I was targeted by the local indigenous youths for my political activities.  They normally came in gangs and harassed me.

15.       I was working in Nadi town for Midas.

16.       Everday [sic] I felt fear of being attacked.

17.       I could not relocate to the urban areas in Fiji because the Fijian youths who normally assaulted me from my neighbourhood moved around so they could attack me anywhere even if I tried to relocate.  Also Fiji is a small place so they can easily find me.

18.       Due to continuous harassment, fear and assault I left Fiji for Australia because I believed that I could get a refugee status here.

19.       The Fijian youths from the neighbourhood village have been asking my family where I am.  They told my parents that they will kill me and slit my throat if they find me.’

13                  The three attached statements were from Fijian witnesses, one based in Nalovo, Nadi in Fiji, one a resident of Blacktown in New South Wales and the third a resident of Rooty Hill, also in New South Wales.  Each affidavit tended to corroborate in various respects the appellant’s membership of the Fijian Labour Party and the fear which had been engendered by threats of persecution directed at the appellant by reason of his political affiliations and activities.  Many of the matters to which those witnesses attested antedated the appellant’s departure from Fiji and arrival in Australia.

14                  In the light of the appellant’s notice of motion seeking leave to appeal and any necessary extension of time in which to do so, the Minister’s objection to competency was not pressed at the hearing in this Court. 

15                  The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion.  As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned any injustice to the appellant.  However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected.  Rule 13.01 of the Federal Magistrates Court Rules provides a mechanism for discontinuance by stipulating;

‘A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.’

16                  Rule 13.02, in turn, allows another party, in the event of a discontinuance, to apply for costs, usually within 28 days after the filing of the notice.  Rule 13.02.3 deals with the situation where a further proceeding on the same, or substantially the same, matter is brought.  That sub-rule provides;

‘If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the Court may stay the further proceeding until the costs are paid.’

17                  There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01.  That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;

‘It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.’ (emphasis added)

18                  Rarely, the discontinuance may involve an abuse of process.  In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside;  see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557where Lord Scarman, with whom the rest of their Lordships agreed, said, at 571;

‘The first issue is whether the notice of discontinuance can be struck out, and, if it can, whether it should be. It is accepted that under the Rules of the Supreme Court as they were in 1979 (for they have now been amended to take care of the situation which arises when interim payments have been made: see R.S.C. (Amendment No. 2) 1980, r. 4), the plaintiff, notwithstanding the two interim payments and the admission of liability, could discontinue without leave, if he did so not later than 14 days after service of defence. Lord Denning M.R. was, however, prepared to hold that our courts can, by the device of statutory interpretation, repair the omission in the unamended R.S.C., Ord. 21, r. 2 to provide for the case in which interim payments had been ordered and made before the expiry of the time limit. "I fear," he said, "that the draftsmen of interim payments forgot all about notices of discontinuance. Interim payments are quite inconsistent with a right to discontinue without leave"; [1980] 1 W.L.R. 833, 854H. Interim payments were made possible by the Administration of Justice Act 1969, section 20, and introduced into the law in 1970 by R.S.C., Ord. 29, rr. 12-17. Like Lord Denning M.R., I have no doubt that the failure to amend the rule relating to notice of discontinuance was a casus omissus. But I do not agree that it is an omission which the courts can make good by reading into the rule a provision that leave is needed when the rule expressly said it was not. Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process (which is what Parker J. did), the notice cannot be struck out.

In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p. 855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him "an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process." (p. 864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.’

19                  In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court’s inherent power to prevent injustice.  In those circumstances his Honour observed, at [2] and [5];

‘2         Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings.  It is, however, permitted only if it does not amount to an abuse of process:  Castanho v Brown and Root (UK) Ltd [1981] AC 557.  Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality ‘if justice requires’.

… …

5          In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out.  Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context.  It was accepted by the respondent that the allegations, if made out, fell within its reach.’

20                  In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice.  Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process.  Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.

21                  Because of what I have concluded was an absence of power in the Federal Magistrates Court to set aside the appellant’s discontinuance of his application to that Court, it follows that the appellant has failed to satisfy the first limb of the test erected in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  In that case, a Full Court of this Court applied the principles enunciated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431 and observed, at 398;

‘The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”.  The second:

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.”’

22                  For the reasons already explained, the decision by the Federal Magistrates Court not to reinstate the discontinued proceedings was not attended with sufficient, or any, doubt to warrant its reconsideration on appeal.  It follows that the motion on notice filed on 2 July 2007 seeking leave to appeal must be refused.  There is no reason not to make the formal orders sought by the Minister changing the name of the respondent to “Minister for Immigration and Citizenship” and adding the Tribunal as second respondent.  I shall also strike out the purported notice of appeal filed on 23 April 2007 and order that the appellant pay the Minister’s costs of the proceedings in this Court, such costs to be taxed in default of agreement.

Associate:

Dated:         3^rd August 2007