FEDERAL COURT OF AUSTRALIA

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Mr Moussa commenced a judicial review proceeding against the Migration Review Tribunal (which is now the Administrative Appeals Tribunal) (‘the Tribunal’) in the Federal Circuit Court by way of an application filed on 7 April 2015. On 16 June 2015 he filed a notice of discontinuance in that Court. The effect of its filing was that that proceeding ceased to exist for most purposes and no longer needed to be dealt with.

2    On 26 June 2015, that is ten days later, Mr Moussa had a change of heart and filed an interlocutory application seeking leave to withdraw the notice of discontinuance. The Federal Circuit Court dismissed that application on 9 July 2015 delivering reasons ex tempore for doing so at the same time.

3    That determination was interlocutory so an appeal lies to this Court only by leave: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Such an application must be brought within fourteen days: r 35.13(a) of the Federal Court Rules 2011 (Cth).

4    On 30 July 2015, after that 14 day period had expired, Mr Moussa filed an application to extend the time in which an application for leave to appeal could be filed and, on the assumption that occurred, an application for leave to appeal.

5    I propose to assume in Mr Moussa’s favour that he should be granted the extension of time he seeks if he is otherwise entitled to a grant of leave to appeal. Leave to appeal will be granted where the decision of the lower court is attended by sufficient doubt 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 (FC).

6    The primary judge made this finding about the circumstances leading to the filing of the notice of discontinuance.

‘5.    The applicant gave oral evidence that prior to filing the notice of discontinuance he had consulted a number of lawyers and that none of them had advised him to continue his case. The applicant gave evidence that some of the lawyers he consulted had the benefit of the Court book that he received on 2 June 2015. It was clear from the applicant’s evidence that he knew what he was doing when he filed a notice of discontinuance. The applicant, however, said that he would not have filed that notice of discontinuance if he had been aware of assertions made by his authorised recipient that were in the Court book and which the applicant said were untrue and were fabricated.’

7    There is no specific rule in the Federal Circuit Court Rules 2001 (Cth) that permits a notice of discontinuance to be withdrawn. Indeed, the only rule relevantly touching upon such a notice is r 13.01:

‘13.01 Discontinuance

(1)    A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.

(2)    A notice of discontinuance may be filed:

(a)    at least 14 days before the day fixed for the final hearing of the application; or

(b)    with the leave of the Court or a Registrar, at a later time.

(3)    However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:

(a)    in a proceeding under the Family Law Act:

(i)    the proceeding relates to the property of a party; and

(ii)    one of the parties dies before the proceeding is decided; or

(b)    the proceeding is a creditor’s petition.

(4)    A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.’

8    Rule 13.02 then deals with costs issues which arise from the discontinuance. There is no need to set it out.

9    It is established that a notice of discontinuance can be struck out if its filing constituted an abuse of process: Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 571 per Lord Scarman (with whom the other Law Lords agreed):

‘The Court has an 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 MR that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of process of the court.’

10    The application of that principle to a notice of discontinuance filed in this Court was accepted by Beaumont J in an obiter dictum in Wool International v Sedgwick Ltd (No 2) [1997] FCA 709. In Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 Mansfield J accepted the existence of the jurisdiction although his Honour described it as part of the inherent power of the Court to prevent injustice (at [5]). In that case it appeared that the notice of discontinuance had been filed without instructions. The Minister accepted that that was a sufficient fact to justify the exercise of the jurisdiction. Thus Mansfield J thought that it was ‘not necessary to explore in any detail the content of the concept of abuse of process’: (at [5]).

11    In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 Ryan J examined these authorities. He accepted at [18] that there was a jurisdiction to set aside a notice of discontinuance which involved an abuse of process at the suit of the party affected by the abuse. He thought this jurisdiction rare. His Honour also accepted (at [20]) that there was likely an inherent power to set aside a notice of discontinuance which has been procured by fraud or duress.

12    Ryan J was clear, however, in SZFOZ that the power could not be invoked where a party had knowingly and voluntarily filed the notice of discontinuance: see [20]. Precisely the same conclusion was reached by Ross J in Khadri v Minister for Immigration and Border Protection (2014) 140 ALD 136 at 140 [16]. There is yet to be a debate as to how principles relating to inherent jurisdiction can be applied to a court, such as the Federal Circuit Court, which is not a superior court and which may not have inherent jurisdiction. It is not necessary to pursue this point further.

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.

14    The primary judge in the instant case approached the issue this way at [11], [12] and [23].

‘11.    The first respondent drew the Court’s attention to the principles identified in Jalloh v Minister for Immigration & Anor [2015] FCCA 1154 at [9] and [10]; MZZDN v Minister for Immigration & Anor [2015] FCCA 69 at [15], [44]-[47], [51], [55]-[56]; and Khadri v Minister for Immigration and Border Protection [2014] FCA 91 at [16].

12.    The first respondents submitted that the applicant had not made out a case of fraud or abuse of process so as to enliven the Court’s jurisdiction. The first respondent submitted that this was a case where the applicant had received legal advice and understood the effect of what the applicant was doing. The first respondent submitted that there was no relevant fraud or abuse of process in relation to the applicant’s decision to discontinue the proceedings.

…

23.    Accordingly, even if this Court had a broader jurisdiction to set aside the notice of discontinuance than fraud or abuse of process, this is not a case in which in [sic] the interests of the administration of justice could be said to require an extension of time under s.477. The application to set aside the notice of discontinuance should be refused. The application in the case is dismissed.’

15    It appears to me that the primary judge was alive to the fact that the jurisdiction was potentially enlivened in circumstances extending beyond fraud or duress.

16    The primary judge’s finding at [5] (supra) that Mr Moussa had filed the notice of discontinuance following advice would appear to bring the matter within the direct situations held in SZFOZ and Khadri not to be sufficient to engage the jurisdiction to set aside. This is enough to dispose of the application.

17    For completeness, another reason to arrive at the same conclusion is that the underlying proceeding which was discontinued could not succeed. There could be no utility in restoring it even if the jurisdiction were otherwise able to be exercised.

18    To see why this is so it is necessary to go into the case in more detail. On 30 January 2015 the Tribunal concluded that it did not have jurisdiction to deal with his application for a review of a decision of a delegate of the Minister to refuse to issue Mr Moussa with a Partner (Temporary) (Class UK) visa. This was because the Tribunal thought that his application for review had not been lodged within 21 days after the time at which Mr Moussa was notified of the delegate’s decision. He had been notified of the decision on 24 October 2014 but did not apply for a review until 19 November 2014 which was on the 26th day after 24 October 2014.

19    The delegate sent Mr Moussa his determination to refuse him the visa by a letter dated 24 October 2014 which was emailed to him on that day. By s 494C(5) of the Migration Act 1958 (Cth), Mr Moussa is taken to have received the decision by the end of that day. The decision was an ‘MRT-reviewable decision’ within the meaning of s 338.

20    The application for the visa was one which fell within s 338(2), which was in these terms:

‘338 Decisions reviewable by Migration Review Tribunal

…

(2)    A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a)    the visa could be granted while the non‑citizen is in the migration zone; and

(b)    the non-citizen made the application for the visa while in the migration zone; and

(c)    the decision was not made when the non-citizen:

(i)    was in immigration clearance; or

(ii)    had been refused immigration clearance and had not subsequently been immigration cleared; and

(d)    where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i)    the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii)    an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.’

21    Sections 347(1)(b)(i) and 347(5) contemplate the making of a regulation fixing a time limit no greater than 28 days within which applications for review of such decisions may be brought. Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) in fact fixes it at 21 days. The mandatory language of s 347(1) suggests that an application which does not comply with the requirements for its making is not relevantly an application for review. Consequently, the Tribunal was correct in thinking it had no jurisdiction to deal with the application.

22    Mr Moussa’s case was that when his migration agent had been confronted with the fact that he had destroyed Mr Moussa’s review rights by lodging the review application five days late, he had sought to persuade first the Tribunal and then the Federal Circuit Court that he should be allowed to proceed with the review because the lateness could be explained by Mr Moussa having been sick with chickenpox. Mr Moussa says he gave no such instructions and that an affidavit filed in the Federal Circuit Court in support of the review application bears a signature which is not his.

23    The primary judge was correct to conclude that this could have had no effect. The applicant’s decision to file the notice of discontinuance is not logically connected to any fraudulent conduct. Consequently, it cannot have been the cause of any injustice.

24    A fortiori, when the Tribunal’s decision was in fact correct. Mr Moussa had no case in the Federal Circuit Court which could succeed. Lawyers appear to have told him as much. He decided, correctly, to discontinue his case. His agent’s proposed solution of suggesting that the delay had been caused by Mr Moussa having chickenpox could have had no impact on the outcome even though it may have been untrue.

25    The application will be dismissed with costs. It is appropriate that something further should be said. The Court below accepted that the migration agent who lodged the application for review had not acted appropriately. The consequence is that, through no fault of his own, Mr Moussa is shut out of a right of review to which he would otherwise have been entitled. If there were a discretion in the Minister’s hands which could remedy this situation this would appear to be a case for its exercise (although that would, of course, be a matter for him). I will ask that these remarks be conveyed to relevant officials.

Associate:

Dated:    19 November 2015