Federal Court of Australia

DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 891

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant be granted leave to appeal.

2.    The First Respondent provide Mr Abu Siddque and Mr Paul Bodisco with a copy of these reasons on 4 August 2021.

3.    The Appellant file his notice of appeal by 18 August 2021.

4.    The First Respondent file a notice of contention by 1 September 2021.

5.    The matter be listed for a case management hearing on 15 September 2021 at 9.30 am.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    On 30 July 2020 the Federal Circuit Court made a default order the effect of which was that if the Applicant failed to provide certain medical evidence and an address for service by 28 August 2020 then his application would stand dismissed on and from 29 August 2020. The medical evidence was not forthcoming by 28 August 2020 and the effect of the default order was that the proceeding stood dismissed from 29 August 2020.

2    On 26 October 2020 an application in a case was filed in the Federal Circuit Court to reinstate the proceeding. This was heard and dismissed on 8 December 2020: DHH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3340. On 21 December 2020 the Applicant applied to this Court for leave to appeal from that dismissal. It is that application which is presently before the Court.

3    In considering whether leave should be granted it is generally appropriate to ask (a) whether the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration and (b) assuming the decision to be wrong, whether substantial injustice would be suffered by the applicant if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 (‘Decor’) at 398-399 per Sheppard, Burchett and Heerey JJ.

4    In this case, the underlying subject matter is the Applicant’s application for orders quashing a decision made by the Immigration Assessment Authority (‘the IAA’) affirming an earlier decision of a delegate of the First Respondent (‘the Minister’) that the Applicant should not be granted a Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’). The ultimate effect of that decision will be that the Applicant will be removed from Australia under s 198 of the Act. If the decision below is assumed to be wrong for the purposes of the second limb of Decor I am satisfied that the Applicant would suffer substantial prejudice if leave were refused. It is to be emphasised, however, that the question of whether the IAA decision should have been set aside by the Federal Circuit Court is not presently up for determination in this Court. Instead, the question is whether the Federal Circuit Court ought to have reinstated his application to that court following its dismissal for non-compliance with a self-executing order.

5    Attention may therefore be confined to the first limb of Decor, that is to say, whether the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration.

6    The facts on the present application are more complex than is usual in cases of this kind. There are two aspects to them. First, the history of the Applicant’s attempts to obtain the issue of a SHEV from the delegate and then, on review, from the IAA. Secondly, the procedural history in the Federal Circuit Court.

Facts Relating to the Visa Application

7    The Applicant, who is around 30 years old, is a citizen of Sri Lanka and is of Tamil ethnicity. Until his departure from Sri Lanka he worked principally as a labourer. He arrived in Australia on a boat given the signification ‘Escort’ on 8 November 2012. He had travelled on this boat from Sri Lanka to Australia in a voyage which had taken approximately 14 days.

8    An entry interview was conducted on 24 December 2012 at North West Point, Christmas Island with a Tamil interpreter. At this interview the Applicant said that one of his brothers who had been killed by a shell had been perceived to be associated with the Liberation Tigers of Tamil Eelam (‘LTTE’) by members of the Criminal Investigation Department (‘CID’). Another brother had been targeted and had gone to the United States. The Applicant denied that he was a member of any political organisation. Although he had been arrested by the CID once with his brother he did not know why.

9    The Applicant remained in immigration detention until 28 May 2013 when he was granted a bridging visa and released into the community. Because he had arrived at an offshore entry place the Applicant was an offshore entry person (later, an unauthorised maritime arrival) who was not eligible to apply for a protection visa unless the Minister personally decided to lift the bar on his eligibility: s 46A of the Act. On 6 January 2016, the Applicant received a letter notifying him that the Minister had lifted the bar and on 11 March 2016 the Applicant applied for a SHEV. That application was supported by a statement dated 4 March 2016. This account was more detailed than the version he had given at the entry interview but it also differed from it in ways which might be perceived to be material. On 29 August 2016 he attended an interview with the delegate. On 13 September 2016 his migration agent submitted a post-interview submission on his behalf. On 2 November 2016 the application was refused. The delegate considered that there were inconsistencies in the Applicant’s account and did not believe his claims for protection. It found that his evidence was not credible. It considered and rejected his claims for complementary protection for the same reasons. The matter was then referred to the IAA on 8 November 2016. On 5 July 2017 the IAA affirmed the delegate’s decision. It too thought that the Applicant’s account had many inconsistencies and did not accept his claims for protection.

10    Throughout this process the Applicant was represented by a migration agent, Ms Rawan Arraf from the Refugee Advice & Casework Service. It is apparent from the file that Ms Arraf was diligent in the discharge of her duties on behalf of the Applicant.

Facts Relating to the Procedural History in the Federal Circuit Court

11    The Applicant commenced proceedings in the Federal Circuit Court on 21 July 2017. The originating application is not amongst the papers in this Court but I assume that it sought orders quashing the decision made by the IAA on 5 July 2017 and remitting the matter to it for consideration according to law. On the application in a case before the primary judge there was affidavit evidence from the Applicant that the originating application had been prepared with the assistance of a man called Mr Nathan. According to the Applicant Mr Nathan is a Sri Lankan national who is now an Australian permanent resident who assists refugee applicants.

12    Not long after the originating application was filed the Applicant received stamped copies of the application and noted that it bore an email address – xx@gmail.com – as the email address for correspondence. The Applicant asked Mr Nathan about this and he said that he had created the email address to assist himself, Mr Nathan, with the application.

13    About three years later the Applicant says he instructed Mr Nathan to find him a lawyer and Mr Nathan agreed. This three year delay is a function of the backlog of migration cases in the Federal Circuit Court. To be clear, that delay is not a function of judges of that Court who work diligently with limited resources.

14    The Applicant does not say, but it is a reasonable inference from his affidavit, that he was aware that the case had been fixed for hearing on 30 July 2020. It is not clear when it was fixed for hearing. Since the email address on the originating application was, according to the Applicant’s evidence, Mr Nathan’s, it would seem likely that Mr Nathan had been informed of the date and had informed the Applicant. It is not suggested that Mr Nathan is fictitious.

15    The Applicant says that Mr Nathan told him on 20 July 2020 ‘I have written to the Judge advising your health condition and your unavailability to attend the hearing on 30 July 2020’. The Applicant does not say what this health condition was. Nor does he say that he told Mr Nathan that he was not suffering from a health condition. If one accepts this evidence it is open to infer that the Applicant approved of Mr Nathan conveying to the court that he was unavailable because of the health condition.

16    At 3.45pm on 20 July 2020 an email was sent to the associate of the judge scheduled to hear the case, Judge Driver. This followed an email from the associate indicating that the hearing would be held by telephone at 2.15 pm on 30 July 2020. The email was in the following terms:

Associate Judge Driver,

Your Honourable,

I am the applicant to the above matter. Currently I am in Melbourne and in self isolation. I don’t have the energy or mental strength to face hearing. Since early March I don’t have a job and no money to employ a Lawyer. I am,humbley requesting to adjourn for some time. Please understand my pledging.

Thanks

17    It is to be noted that at this stage Melbourne was in lockdown as a result of an outbreak of COVID-19 infections. The email is signed with the Applicant’s initials but the address from which it was sent was ‘nathaniyer <xx@gmail.com>’ which is the same email address referred to above. The significance of this is that Mr Nathan was purporting to be the Applicant.

18    The associate wrote back indicating that the Minister’s consent would be needed before the hearing could be vacated. The next day, the Minister’s solicitor replied to the associate and the author of the first email that the Minister’s consent would not be forthcoming.

19    The matter was called on for hearing on 30 July 2020 at which time there was no appearance by the Applicant (or by Mr Nathan). I will set out the orders made by Judge Driver on that date shortly but it is apparent from those orders that prior to the hearing another email had been sent to the judge’s chambers from Mr Nathan. That email apparently indicated that the Applicant may have had COVID-19 and had been taken by paramedics (although where he was taken is unclear). The primary judge then made a series of orders the substantial effect of which was to require the Applicant to provide medical evidence of his condition within a certain timeframe, in default of which the proceeding was to stand dismissed. The primary judge also made a number of notations on the orders. The orders and notations are as follows:

THE COURT NOTES THAT:

 A.     The applicant failed to appear at today’s scheduled hearing.

B.     The applicant emailed the Court on 20 July 2020 to say that he is in Melbourne in self-isolation and sought an adjournment.

C.     A purported Sri Lankan community volunteer using the same email address as the applicant emailed today saying “…that client has been taken by Paramedics amid Covid 19, now he is in isolation, he has no mobile phone...”

D.     The applicant’s application filed 21 July 2017 provides an address for service in Sydney.

THE COURT ORDERS THAT:

1.     The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.     The applicant is to provide medical evidence verifying the assertions in the email of 30 July 2020 by 28 August 2020.

 3.     The applicant is also to provide an address for service in Melbourne by 28    August    2020.

4.     In the event the applicant complies with orders 2 and 3 of these orders the following orders shall apply:

a.     This hearing is adjourned to 10.15am on 7 September 2020.

b.     Any submissions upon which the applicant wishes to rely is to be filed and served not less than 14 days before the hearing.

c.     Any submissions the Minister wishes to rely upon are to filed and served not less than 7 days before the hearing.

5.     In the event the applicant fails to comply with orders 2 or 3 of these orders, the application is dismissed by force of these orders with effect from 29 August 2020.

6.     In the event the application is dismissed by force of order 5 of these orders, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

20    Another effect of these orders, wrought by Order 4(a), was that provided it was not dismissed the originating application was listed for hearing on 7 September 2020. The Applicant says that Mr Nathan reported to him that the proceeding had been adjourned to 7 September 2020. The Applicant gives no evidence one way or the other as to whether Mr Nathan mentioned to him the self-executing order relating to evidence about his health condition.

21    The Applicant says that on 21 August 2020 Mr Nathan told him that he had procured a solicitor, Mr Abu Siddque, and counsel, Mr Paul Bodisco, for him and the application was listed for hearing on 7 September 2020.

22    The primary judge found as a fact that the Applicant did not provide the medical evidence referred to in Order 2 within the specified timeframe (the inference is open that the primary judge regarded Order 3 as having been complied with by the filing of a notice of address for service by Mr Siddque but this is not material to the outcome). His Honour concluded that this non-compliance had the consequence that the self-executing order in Order 5 had taken effect so that the Applicant’s proceeding was dismissed with effect from 29 August 2020.

23    According to the primary judge, Mr Siddque filed a notice of appearance and an amended originating application. Submissions were filed in support of it on 26 August 2020. The primary judge observed that these lawyers ‘appeared to be labouring under the misapprehension that the matter was proceeding to a further hearing in accordance with the alternative orders [as] if the Court had been satisfied as to the proof of the matters sought from the applicant’: [6]. This appears to be correct. It may be inferred that if Mr Siddque or Mr Bodisco had been aware of the self-executing order made on 30 July 2020 and coming into effect on 29 August 2020 they would have taken steps either to satisfy the requirements of the order or to have it discharged if an appropriate explanation was at hand.

24    It is not entirely clear from this Court’s record what happened next but the primary judge recorded in his judgment that his chambers and the Minister’s lawyer corrected this misapprehension: [7]. Following that exchange an application in a case was filed in the Federal Circuit Court on 26 October 2020 after the proceedings stood dismissed. This application was completed by hand and purported to be filed on behalf of the Applicant by one Abu Siddque of Abu Lawyers. It sought an order that the case be re-opened. It purported to be signed by the Applicant. It was accompanied by a typed affidavit apparently sworn by the Applicant. It made two points:

    He had retained new lawyers on 25 August 2020 but was unable to obtain the relevant medical records in a timely fashion; and

    It attached the medical records.

25    The attached medical report was dated 26 September 2020 and was issued by a Dr Gunatilake. Dr Gunatilake did not, however, say that the Applicant had been sick on 30 July 2020 – the topic to which Order 2 was directed. Instead, it confirmed that the Applicant had an appointment with a respiratory specialist on 7 November 2020. This was medical evidence but it did not satisfy Order 2 because it was not ‘verifying the assertions in the email of 30 July 2020’ (ie, that the Applicant had been taken by paramedics).

26    The primary judge thought that this application had been provoked by his chambers’ and the Minister’s informing the Applicant of the self-executing order. I pause there to observe that since Mr Siddque had by then filed a notice of address for service it would appear an inescapable conclusion that Mr Siddque had been informed of this matter since he would have received the communications in question. However, Mr Siddque has subsequently disavowed ever making the application. This is recorded at [7] in the primary judge’s reasons:

What is striking now is that although that Application in a Case was purportedly completed by the applicant’s solicitors, they disavow it. I am told that the Application in a Case is, in effect, a fabrication put in the name of the solicitors, but, in fact, created by the person [Mr Nathan].

27    It transpired that the affidavit filed in support of the application was also not prepared by Mr Siddque but had been prepared by Mr Nathan. The primary judge recorded this fact at [8] of his reasons. It is unclear whether the affidavit was nevertheless sworn by the Applicant or whether Mr Nathan had signed it too.

28    The application in a case was returnable before Judge Driver on 8 December 2020. On 2 December 2020 the Applicant attended a conference with Mr Siddque and Mr Bodisco. Mr Nathan was also at this conference. The Applicant was told by his advisors that he would need to put on evidence as to his self-isolation referred to in Mr Nathan’s email of 20 July 2020 and also evidence of his having been taken by the paramedics on 30 July 2020. This advice would appear to be correct.

29    Subsequent to this meeting the Applicant says that he made enquiries of Mr Nathan about these emails. As a result of these enquiries it now appeared to the Applicant that the emails were written by Mr Nathan. The Applicant says that he was not aware of the emails prior to this and that he did not endorse them. On 5 December 2020 the Applicant says that he told Mr Siddque that he had been misled by Mr Nathan in the past about his application and that he had no knowledge of the communications made on his behalf by Mr Nathan on 20 July 2020 and 30 July 2020. He has said that it was Mr Nathan, not Mr Siddque, who had prepared the application in a case and its supporting affidavit.

30    As matters then stood there was a significant degree of procedural irregularity in a number of aspects. First, what was to be heard was an application in a case which was not prepared by Mr Siddque but by Mr Nathan who had falsely used Mr Siddque’s name. Secondly, it was supported by an affidavit apparently but not actually engrossed by Mr Siddque and which may, or may not have been, sworn by the Applicant. It is clear that an undated affidavit was taken by Mr Siddque from the Applicant and filed on 8 December 2020. I infer that it was drawn after 5 December 2020 when the Applicant says that he informed Mr Siddque of the role of Mr Nathan. The Applicant’s account of events above has been taken from this affidavit. Thirdly, there was the potential procedural problem of seeking to proceed on a form of process (the application in a case) which was a false document. It is apparent from the primary judge’s reasons that Mr Siddque and Mr Bodisco decided to proceed on the application in a case, in effect ratifying it as Mr Siddque’s own application on behalf of the Applicant.

31    In any event, the matter came on for hearing before the primary judge. His Honour was not impressed. He concluded that the application in a case was a form of abuse of process. The critical parts of his Honour’s reasons were as follows:

The circumstances are obviously unusual and unsatisfactory. What is clear to me is that I took the appropriate course of requiring proof from the applicant as to his asserted inability to attend court on 30 July. It is also clear that the self-executing order operated appropriately in the absence of that proof. The application upon which the applicant now seeks to disturb those orders is an abuse of process in that it contains falsehoods as to its creation and there were further falsehoods in the affidavit purportedly in support.

The applicant through his solicitor and counsel seeks, nevertheless, to use the Application in a Case as a vehicle to have the prior orders set aside. In my view, it would be contrary to the interests of the administration of justice to permit an abuse of process to succeed in circumstances such as the present. I conclude that the appropriate course is to dismiss the purported Application in a Case with costs and I so order.

Consideration

32    Had Mr Siddque and Mr Bodisco filed a fresh application in a case or moved from the bar table for the same orders this process of reasoning would not have been available. The difficulty identified by the primary judge with the application was that it was a ‘fabrication put in the name of the solicitors’: [8]. No doubt it is correct to say it was a fabrication in that sense. But the picture is made more complex when that same solicitor then sought to proceed on it. It was clear that the Applicant wished to proceed on it and Mr Siddque was happy to do so too. Whilst I agree with the primary judge that it was originally an abuse of process I have some difficulty seeing that it remained so once Mr Siddque made it his own. The main problem was that the application in a case had been prepared (falsely) without Mr Siddque’s authority. But it is well established that one person may subsequently ratify the authority of another to do something on their behalf. In particular, with respect to the authority required to file legal proceedings on behalf of another, in Danish Mercantile Co Ltd v Beaumont [1951] Ch 680, Jenkins LJ said at 687-688, with Hodson LJ agreeing at 689:

I think that the true position is simply that a solicitor who starts proceedings in the name of a company without verifying whether he has proper authority so to do, or under an erroneous assumption as to the authority, does so at his own peril, and that, so long as the matter rests there, the action is not properly constituted. In that sense, it is a nullity and can be stayed at any time, provided that the aggrieved defendant does not unduly delay his application; but it is open at any time to the purported plaintiff to ratify the act of the solicitor who started the action to adopt the proceedings, to approve all that has been done in the past, and to instruct the solicitor to continue the action. When that has been done, then, in accordance with the ordinary law of principal and agent and in accordance with the ordinary doctrine of ratification, in my view, the defect in the proceedings as originally constituted is cured; and it is no longer open to the defendant to object on the ground that the proceedings thus ratified and adopted were, in the first instance, brought without proper authority.

33    This statement of Jenkins LJ is regarded as expressing a well-established principle of law: Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007] FCA 1221 at [2] per Finkelstein J; Multitecfbm (Asia Pacific) Pty Ltd v Seong Myeon (Chris) Han [2008] NSWSC 1339 at [29] per Sackville AJ; Dal Pont G E, Law of Agency (4th ed, LexisNexis Butterworths, 2020) [5.51] p 133. However it does not directly govern the situation that presented itself before the primary judge. The application in a case had been filed in the name of the Applicant’s lawyer, Mr Siddque, without his authority but bearing his name. It is possible therefore that the application should be regarded not as an act purportedly done as agent for Mr Siddque, but as a forgery of Mr Siddque’s own actions, such that it was incapable of ratification: see Watts P, Bowstead & Reynolds on Agency (22nd ed, Sweet & Maxwell, 2021) [2-047].

34    It is not necessary at this stage to resolve any tension created by the application of these principles to the case at hand. What is clear is that it is reasonably arguable that the primary judge erred in his characterisation of the application as an abuse of process. Mr Siddque sought to make the application his own but could have instructed Mr Bodisco to move the same application orally from the bar table or could have filed a fresh application in precisely the same terms. The approach Mr Siddque took appears to have had the virtue of being the most straightforward and cost efficient way of proceeding and the one least likely to involve further procedural irregularities such as the need to shorten the time for any fresh application to be made returnable.

35    I agree with the primary judge, with respect, that there is much which is unsatisfactory about the application in a case but none of that appears at this stage to have been Mr Siddque’s fault. There is also a question as to whether the Applicant knew about the application in a case. However, if he did not know about it then like Mr Siddque he was not to blame. If he did know about it, then this only suggests that it was made with his authority. The question of abuse of process then reduces to the proposition that the Applicant wished to make the application, one agent purported to prepare it in the name of another who then arguably ratified it. There are plainly question marks over what Mr Nathan has done. But that does not mean that the Applicant’s application on 8 December 2020 for his case to be reinstated was an abuse of process. It is reasonably arguable that by then any abuse of process had concluded.

36    The primary judge did not proceed to assess whether, if the application had not been an abuse of process, he should have granted it. The substantive question has not therefore been answered. There are several impediments which now stand in the way of its resolution:

    The need for a notice of contention on the Minister’s behalf seeking to uphold the primary judge’s decision on grounds other than that which was identified in his Honour’s reasons;

    The fact that the draft notice of appeal discloses a ground which is not directed to the question in the appeal. Instead, it is addressed to the question of whether the IAA’s decision should be set aside. By contrast, the question in this appeal is whether the primary judge’s orders dismissing the Applicant’s application in a case for reinstatement should be set aside;

    The absence from the material before this Court of the submissions and amended originating application prepared by Mr Siddque in advance of the substantive hearing;

    The absence from the material before this Court of any of the submissions made to the primary judge.

37    Although I am satisfied that it is arguable that the primary judge erred in his approach to the question of abuse of process there is a question as to whether the Minister’s notice of contention (when filed) may be sufficiently persuasive such that one may conclude that it will inevitably lead to the appeal being dismissed even if the primary judge did err in his approach to abuse of process. However, I am not prepared to reach that conclusion without either that notice of contention or the absent materials I have referred to.

38    In that circumstance, I propose to grant leave to appeal. I will direct the Minister to provide Mr Siddque and Mr Bodisco with a copy of these reasons. The Appellant must file his notice of appeal within 14 days after that has been done and the Minister must file his notice of contention within a further 14 days. There will then be a case management hearing to chart the future conduct of the appeal.

Reasons delivered Ex Tempore

39    Before the question of leave to appeal was considered, I delivered the following reasons on the Applicant’s request for an adjournment of the proceedings until it was safe for the hearing to proceed in person, rather than on Microsoft Teams:

40    The matter is listed today for the determination of an application for leave to appeal. At the commencement of the hearing, the Applicant sought an adjournment of the proceeding on the basis of an eye condition. The eye condition causes his eyes to become sore and irritated and also red, within about half an hour or an hour of looking at a computer screen. The hearing today occurs on day 19 of the lockdown in Sydney, during the Delta crisis. If the matter is adjourned, it is unclear to me when it would be possible to adjourn it to an in-person hearing.

41    I mentioned an in-person hearing because, as I understand it, that is the only kind of hearing which would resolve the particular problem which the Applicant relies upon. The prejudice which exists, therefore, requires a balancing exercise between the irritation which will occur to the Applicant’s eyes if this matter runs for more than say 45 minutes and the possibility of the matter not being dealt with for some indeterminate period of time.

42    I have some concerns that the situation we find ourselves in the moment may not resolve any time soon. In that circumstance, whilst I am sympathetic to the condition which the Applicant describes, it seems to me that we will just have to press on as best we can. If the situation becomes intolerable to him, we can revisit it. I refuse the adjournment.

43    For completeness I note that the Applicant had previously informed the Court that he was not currently prepared to travel to attend the hearing in person, which is no doubt understandable. At the end of the hearing, the Applicant informed the Court that his eyes had not been that much affected during the proceedings, as he had been able to look around away from the screen as needed.

Associate:

Dated:    4 August 2021