Federal Court of Australia

Pushpinder v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 903

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal dated 17 August 2022 is refused.

2.    The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The applicant has applied for leave to appeal against the judgment of a judge of the Federal Circuit and Family Court of Australia (Div 2) refusing an application made in that court for “leave to reopen and reinstate the discontinued matter MLG1487/2014”, and ancillary orders. I will refer to the applicant’s earlier, discontinued proceeding as the substantive proceeding. The primary judge dismissed the reinstatement application. Having delivered ex tempore reasons on 5 August 2022, the primary judge delivered written reasons on 5 October 2022 (PJ), following receipt of a request for written reasons. The applicant appeared for himself before the primary judge, and before this court.

2    The reinstatement application was filed on 24 June 2022, approximately six years after the substantive proceeding was discontinued. The substantive proceeding sought judicial review of the Tribunal’s decision affirming the decision of a delegate of the Minister refusing to grant the applicant a Skilled (Provisional) (class VC) (subclass 485) visa.

3    The applicant signed a Notice of Discontinuance in respect of the whole of the substantive proceeding. That form was dated 29 March 2016. At that time, the substantive application had been set down for hearing on 4 April 2016. The notice of hearing was issued on 22 March 2016, only eight clear business days before the hearing date. The hearing was re-fixed after an earlier hearing date of 15 September 2015 did not proceed, due to “judicial inability” (presumably judicial unavailability).

4    At the time, the applicable rule (r 13.01(2)(b) of the Federal Circuit Court Rules 2001 (Cth)) required leave of the court to file a notice of discontinuance so close to the hearing date. The Minister consented to the Notice of Discontinuance being filed. The Notice of Discontinuance was filed after the applicant unsuccessfully sought an adjournment of the hearing. The way in which that adjournment application was addressed by the Minister’s solicitor was not wholly satisfactory. While the matter of the short notice of the listing has been raised in the applicant’s submissions, those circumstances do not assist the applicant on the present application. There is no apparent connection between the short notice of relisting and the reinstatement application made six years later. Moreover, the short notice of relisting was not raised as an argument before the primary judge, so far as the material available on this appeal reveals. Nevertheless, given there are some aspects of the Minister’s conduct (through his solicitors) that I consider unsatisfactory, I have noted the relevant conduct in a postscript to these reasons.

5    Many months after the hearing was refixed and the applicant filed the Notice of Discontinuance, the Minister sought a costs order, and was awarded costs in the amount of $4,778 on 17 January 2017.

6    The grounds the applicant sought to advance, if leave were granted, are as follows:

Grounds of appeal

Challenge to the finding that the applicant provided no evidence to suffice the delay in bringing back proceedings

1.     The presiding Judge erred in finding that the applicant was traumatised due to his father's sudden death, but there was no medical evidence to prove the delay.

2.     The presiding judge erred by not considering that the applicant went through numerous legal proceedings between 2018 and 2022 in which the applicant was self-represented. The medical evidence, if tendered, would have been of no weight to abridge the delay as it would have been logically impossible for the applicant to self-represent during those proceedings.

3.    The presiding judge erred in not considering the applicant's evidence (affidavit) as a whole.

Error of Construction

4.     The presiding Judge erred in failing to take into account the surrounding circumstances, including the rules & procedures followed and the purpose the applicant was trying to achieve in those circumstances and finding that the applicant signed the Notice and, therefore, the applicant is liable for his signature.

5.    Procedural Fairness/Natural Justice — The presiding Judge presented unruly behaviour and erred by not providing a final opportunity to respond to the findings adverse to the applicant.

6.     The presiding Judge erred in failing to find that after being self-represented during those proceedings (as mentioned in the supporting affidavit of the applicant during those proceedings), the applicant was finally capable of concluding that the applicant was subject to fraud by the agents, and due to not being able to pursue his career without the necessary education and certification motivated the applicant to set aside the Notice of Discontinuance.

7    The Minister’s submissions accurately summarised the primary judge’s reasons as follows:

13.    The primary judge summarised the applicant’s evidence before the Court, relevantly noting that the applicant claimed that:

13.1    he paid a significant sum of money to receive assistance in his application from unscrupulous and fraudulent persons holding themselves out to be lawyers or migration agents: [9]–[11];

13.2.     as the final hearing date approached, he felt lost as to how he could properly put a case to the Court as a self-represented litigant, and unsuccessfully sought an adjournment of the hearing: [12];

13.3.     as he could not afford representation, lacked education and the “necessary skills”, had not been advised upfront by the immigration agents of the significant costs involved in running his case, and was grieving the death of his father, he decided to discontinue his application: [13];

13.4.     between 2018 and 2022, he was involved in 10 different legal proceedings and also unsuccessfully sought a protection visa: [16] –[17]; and

13.5.     when cleaning out his closet, he came across the Court Book filed in his judicial review application, re-read it, and decided that the migration agents who had assisted him with his visa application had provided other bogus documents and false information on his behalf in support of the visa application, such that it was appropriate for his judicial review application to be reinstated: [18]–[20].

14.    The primary judge observed that the Court could only reinstate a discontinued application in the “most grave of circumstances, where realistically the Applicant is, in effect, non est factum”: [21]. In this regard, the primary judge found that there was no evidence that the applicant lacked the capacity to understand the discontinuance or that the discontinuance was induced by fraud or misleading conduct: [22].

15.     The primary judge noted that there was no explanation for the applicant’s 6 year delay in seeking to re-enliven his application for judicial review: [23].

16.    The primary judge considered that there was nothing to establish that the extraordinary circumstances that must be present to permit a notice of discontinuance to be set aside were present: [25]. In this regard, the primary judge noted that he had no independent expert evidence that the applicant’s grief in respect of his father’s death was something that rendered him unable to comprehend the filing to a notice of discontinuance. Rather, the primary judge found that the applicant’s decision to discontinue his application was a “conscious” one that he regretted 6 years later [26].

17.     Accordingly, the primary judge dismissed the application in a proceeding: [28].

8    As the Minister submitted, an application to set aside a notice of discontinuance is interlocutory in nature: BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 at [13] (Rangiah J); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048 at [2] (Gleeson J); Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 at [3] (Perram J). Leave is required to appeal against a decision that is interlocutory in nature: Federal Court of Australia Act 1976 (Cth) (the FC Act) s 24(1A).

9    Leave to appeal will only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong: Décor Corporation Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor) at 398–9 (Sheppard, Burchett and Heerey JJ).

10    The Minister accepted that the court below had an implied power to set aside a notice of discontinuance and reinstate a discontinued proceeding. The circumstances in which courts will exercise such an implied power were addressed by the Full Court in Chen v Monash University (2016) 244 FCR 424 (Chen). The relevant principles (as summarised in the Minister’s submissions) are as follows:

22.    The FCC Rules have been replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Those Rules do not include a power to set aside a filed notice of discontinuance However, the Court below has an implied power to set aside a notice of discontinuance and reinstate a discontinued proceeding [citing Chen v Monash University (2016) 244 FCR [424] (Chen) at [41] (Barker, Davies and Markovic JJ); DZY17 v Minister for Home Affairs (2018) 267 FCR 673 at [46] (Besanko, Griffiths and White JJ); BZAGD v Minister or Immigration and Border Protection [2016] FCA 670 (BZAGD) at [16]–[17] (Rangiah J)]. Relevantly:

22.1.     the power to set aside a notice of discontinuance only arises to prevent an abuse of process of the Court or to protect the integrity of those processes [citing Chen at [41] (Barker, Davies and Markovic JJ); BZAGD at [16] (Rangiah J); CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 (CDN16) at [166] (Kenny J)];

22.2    the power, which is discretionary, will only be enlivened where the party who filed the notice of discontinuance “did not do so as a deliberate and informed act, as, for example, if the Notice were filed as a result of fraud in which the [party] was not complicit” [citing Chen at [46]–[48] (Barker, Davies and Markovic JJ); CDN16 at [167]–[168] (Kenny J)]; and

22.3    the power will not be available for other reasons going beyond those concerned with correcting an abuse of process – the power is not a general power to reinstate the application “in the interests of justice” [citing Chen at [47] (Barker, Davies and Markovic JJ); BZAGD at [16] (Rangiah J); CDN16 at [167] (Kenny J)].

11    Critically, the affidavit affirmed by the applicant and relied on before the primary judge, detailed the history of the applicant’s engagement with various migration agents and lawyers over the years (including their demands for money, and the many respects in which he considers he was wronged or let down by those representatives), his engagement with the Department of Immigration (including its findings on aspects of his visa application that departmental officials thought to be false), the circumstances in which his application to the Tribunal was advanced, but failed, his engagement with lawyers to bring the substantive proceeding, and the various legal proceedings (including criminal and possession of premises proceedings) in which the applicant represented himself.

12    The affidavit contained very little content of direct relevance to the question before the primary judge. The only matters stated in the affidavit that were relevant (in addition to the heavy engagement of the applicant in representing himself in litigation between 2018 and 2022, said to explain his delay in bringing the reinstatement application) were as follows.

13    First, it stated that the applicant discontinued the substantive proceeding due to not being able to afford representation, having a lack of education and necessary skills, and the migration agents not revealing the cost to run the case upfront. The applicant also said that “[f]urther, the applicant was in grief and traumatised after losing his father earlier in 2016.”

14    Secondly, the applicant stated that it was only “most recently, on a sunny day”, that he reviewed the court book earlier received from the Australian Government Solicitor (AGS) in 2016, and realised it contained the migration application initially lodged in 2011, which contained bogus details. The applicant also located other bogus details in the application. It appears (although it is not entirely clear) that, on seeing (some time in 2022) what had been put in the application in his name by his then migration agents in 2011, the applicant saw reinstating his application as a way to clear his name with the Department of Immigration, and be relieved from limitations on his visa that prevented him studying, when he considers he needs qualifications to advance his job and business prospects.

15    In my view, the application for leave to appeal must be dismissed as the primary judge’s decision is not attended with sufficient doubt.

16    As the primary judge found, there was no material before the court that would tend to impugn the Notice of Discontinuance. There was, as the primary judge observed (PJ at [21]-[22]) no evidence that the applicant was “induced by fraud, or by the tricks of someone else, to sign that … document”, or did not really understand what he was signing. On the contrary, the applicant’s own affidavit explained that he discontinued the proceeding as he considered he did not have the skills to proceed with the case on his own, and he felt that those who had assisted him in preparing the proceeding, only to demand substantial fees to run the case, had misled him. Before this court, the applicant stated in his submissions that he thought that the Notice of Discontinuance would merely pause the proceeding. In his affidavit in support of his application for leave to appeal, the applicant said he was investigating “ways to temporarily pause” the proceedings, and came across the Notice of Discontinuance form when he performed a google search.

17    Taking the applicant’s evidence and submission at face value (notwithstanding that the Notice of Discontinuance was signed after efforts to adjourn the hearing had proved unsuccessful and so constituted a step of a different quality from an adjournment) the difficulty remains that the affidavit before the primary judge did not record any lack of understanding, on the applicant’s part, about the effect of a Notice of Discontinuance, or say he thought what he was filing would merely “pause” the proceeding. On the contrary, the applicant’s affidavit explained why it was that he felt compelled to “discontinue the matter”.

18    When exercising its appellate jurisdiction, this court has the discretion to admit further evidence pursuant to s 27 of the FC Act. However, according to established principles, that discretion will only be exercised where the further evidence is significant and likely to have affected the outcome if adduced at trial, and also where the party seeking to adduce the evidence was unaware of the evidence and could not, with reasonable diligence, have been made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 (Quall) at [16].

19    Clearly, evidence as to the applicant’s understanding of the effect of a Notice of Discontinuance is evidence that could have been adduced below, if the applicant wished to contend he thought that the Notice of Discontinuance would merely pause the proceeding. It was not, and there is no occasion to proceed on the basis that the applicant would be able to rely on this further evidence if given leave to appeal. Accordingly, the position remains that the primary judge was not presented with evidence that would bring the application for reinstatement within the bounds articulated by the Full Court in Chen. It is not necessary to decide whether evidence of a misunderstanding of the effect of a Notice of Discontinuance would be enough to bring the case within the principles articulated in Chen.

20    The primary judge pointed to the lack of evidence concerning the death of the applicant’s father having such an impact on him that he did not really understand what he was doing in relation to the Notice of Discontinuance. The applicant was critical of the primary judge, on the basis that his father only died after the Notice of Discontinuance. He suggested that the primary judge had just come up with the notion that the applicant was contending that the impact of his father’s death was part of the reason why he filed the Notice of Discontinuance or did not appreciate its significance. While the death certificate provided appears to bear out that the applicant’s father died later in 2016, that provides no basis for complaint by the applicant. That is because it was the applicant’s own affidavit (relied on before the primary judge) which linked the Notice of Discontinuance to the death of his father “earlier in 2016” (emphasis added). In any event, if the death of the applicant’s father played no part, putting that matter to one side does not fill the gap in the applicant’s application below and bring the application within the principles set out in Chen.

21    The applicant further contended that the primary judge erred by not considering that he had gone through numerous legal dealings between 2018 and 2022, in which he was self-represented. The primary judge did refer to that matter: PJ at [16], [18]. Moreover, the applicant’s involvement in litigation as a self-represented litigant could only be relevant to explaining the delay in his having initiated the reinstatement application. Those matters could only go to the exercise of the court’s discretion, if that discretion were enlivened. The applicant’s engagement in self-represented litigation between 2018 and 2022 did not, and could not logically, go to whether the Notice of Discontinuance was to be impugned in any of the ways set out in Chen. The primary judge pointed that out in observing, in relation to the applicant’s narrative concerning the delay and his desire to have the substantive proceeding reinstated, that “it is not that simple” as the court would only exercise its power to reinstate or revive an application in “the most grave circumstances”: PJ at [21].

22    It follows that neither of proposed grounds 1 or 2 has any prospect of success. Ground 3 also has no prospect of success. It claims that the primary judge erred in not considering the applicant’s affidavit as a whole, but most of the affidavit was irrelevant (or at best, provided context) and the primary judge addressed the aspects that had any comprehensible bearing on the application before him.

23    Ground 4 lacks merit. There is no basis upon which to consider that the primary judge proceeded in a way that did not take into account the “rules & procedures followed”, to the extent they bore on the issue before his Honour and had been raised before the court below. From his submissions, it appears that the applicant’s contention (advanced for the first time on the application for leave to appeal) is that he never sought leave to file the Notice of Discontinuance, there was no email from the trial judge’s chambers regarding the grant of leave and he did not serve the Notice of Discontinuance, as required by r 13.01(4) of the Federal Circuit Court Rules 2001 (Cth). The primary judge stated that the court file recorded that the trial judge granted that leave. While the applicant’s submissions in this court suggest that the primary judge made an erroneous assumption about the grant of leave, the primary judge specified the source of the information: namely the file maintained by the court below.

24    The applicant submitted that the procedural aspects of the Notice of Discontinuance were not considered by the primary judge, but should have been, as those irregularities showed that the Notice of Discontinuance was not a deliberate and informed decision. These matters do not assist the applicant. Arguments concerning procedure and what was, or was not, communicated concerning the grant of leave to discontinue, and any failure to serve the Notice of Discontinuance, were not arguments advanced before the primary judge, so far as the material available in this court reveals. They were not matters raised in the affidavit before the primary judge.

25    Clearly, the facts concerning the procedural deficiencies relating to the Notice of Discontinuance of the kind now raised were matters that could have been raised below (cf, for the first time, in seeking leave to appeal): Quall at [16]. They are also not matters that, if adduced in evidence before the primary judge, would likely have led to a favourable outcome. That is because any procedural irregularities relating to the obtaining of leave in order to file the Notice of Discontinuance, and his failure to serve the Notice of Discontinuance, do not support the applicant’s case. The Notice of Discontinuance was accepted for filing, and no point was taken by the Minister about a failure to serve the notice. Further, those matters (which temporally post-date his execution of the Notice of Discontinuance) also do not support the applicant’s case as they do not suggest he signed the Notice of Discontinuance not understanding its effect or otherwise on the basis that there was some abuse associated with it.

26    The applicant’s “Grounds of application” stated in his application for leave to appeal raise the question of whether the Notice of Discontinuance was of any effect. However, no such contention was advanced before the primary judge (so far as the primary judge’s reasons reveal). Nor does the applicant contend that he made that argument before the primary judge, and it was not addressed. In any event, a contention that the Notice of Discontinuance was of no effect would have been inconsistent with the very premise of the application before the primary judge. By its terms, the applicant’s application sought an order reopening and reinstating the substantive proceeding.

27    I also reject the applicant’s contention that the Minister bore the onus of establishing the efficacy of the Notice of Discontinuance by proving its proper filing, etc. The only other link drawn by the applicant’s submissions was a suggestion that the absence of legal advice concerning the Notice of Discontinuance, and the procedural questions raised about the seeking and granting of leave to file the Notice of Discontinuance, “confirms the fact that it was not a deliberate or informed act”. Again, it is not apparent from the material before this court that any argument along these lines was one before the primary judge. Moreover, there is nothing in the affidavit that was before the primary judge that tended to suggest that the applicant was not fully aware of what he was doing by signing and filing the Notice of Discontinuance.

28    In oral submissions, the applicant submitted that the fact that the Notice of Discontinuance was handwritten was significant as that tended to show he did not know what he was doing. I do not accept that completing a form by hand has that significance (even if that submission had been made before the primary judge, which again has not been established).

29    Ground 5 contends that the judge “presented unruly behaviour and erred by not providing a final opportunity to respond to the findings adverse to the applicant”. It appears from his affidavit, filed in support of his application for leave, that the applicant is referring to the judge’s delivery of ex tempore reasons and lack of tolerance for being interrupted mid-flow. While the applicant’s grievance may be understood given his lack of familiarity with court processes, it has no merit. Likewise, a complaint about not being given an opportunity to make further submissions after delivery of oral reasons lacks merit and is doomed to fail. In oral submissions, the applicant took issue with the conduct of the hearing before the primary judge by telephone when the court below had previously indicated a link for a remote “Teams” hearing would be provided. The applicant felt that this contributed to his expectation that he would be given another chance to address the court after the delivery of the ex tempore reasons. Putting to one side the absence of evidence on this point, in the course of discussion with the applicant during his submissions in this court, he confirmed that he was given an opportunity to address the court below, made some submissions, and said something like “that’s all for now”, before the primary judge then delivered his ex tempore reasons. Accordingly, there is no basis to conclude that the applicant suffered a lack of procedural fairness in the court below on the basis that his submissions were curtailed because the hearing was conducted by telephone.

30    Ground 6 is difficult to understand. To the extent that it appears to mount a contention of error on the basis that the judge failed to give weight to the applicant’s ability to prosecute the substantive proceeding, and had good reasons for seeking to do so, those matters had no bearing on the application before the primary judge, which was governed by the considerations set out in Chen.

31    I should also mention that the applicant’s “Grounds of application” in support of his application for leave to appeal raised the question of whether the Minister could claim costs eight months after the discontinuation of the substantive proceeding and whether there has been an abuse of process. The short point is that there is no suggestion that the matter of the costs order obtained by the Minister was raised before the primary judge. Moreover, any issues concerning a costs order made months after the substantive proceeding was discontinued could not logically bear on whether the Notice of Discontinuance was capable of being set aside pursuant to the principles identified in Chen.

32    If I were persuaded that the primary judge’s decision was attended by sufficient doubt, I would have granted leave to appeal, and would not have refused leave on the ground that substantial injustice would not result from the refusal of leave. If the primary judge erred in not acceding to the reinstatement application, the applicant has been deprived of his opportunity to pursue a proceeding which, if he were successful, would result in a favourable migration outcome for the applicant. However, even if leave were granted, I would have dismissed the appeal, for the reasons already stated.

33    What follows is the foreshadowed postscript concerning the circumstances in which the applicant’s adjournment application was refused. In my view, the conduct of the Minister’s solicitors in March 2016 leaves something to be desired; it was not the conduct of a model litigant. After the court below gave notice of the hearing date, which allowed a clear period of only eight business days, the applicant promptly sought an adjournment of the hearing by email to chambers. The applicant’s email to chambers, copied to the Minister’s solicitors, stated that the barrister was not available on the appointed hearing day. The judge’s chambers informed the applicant that “a request for an adjournment of a hearing should have the consent of the other side”. That email did not mention applying for an adjournment without the consent of the other side.

34    The applicant set about seeking the Minister’s consent. After an email from the Minister’s solicitors querying the details of the applicant’s legal representatives (who were not on the record) the applicant sent the Minister’s solicitors an email explaining why there was no solicitor who could appear on the day (due to the applicant’s inability to afford the fees) and also explaining that the rostering arrangements around the Easter holidays meant that he could not obtain a day off to come to court. The applicant worked as a tyre fitter. The response of the Minister’s solicitor was to contend “[i]t sounds like your solicitor is in fact available for the hearing on 4 April” and asking again for the lawyer’s details. The email did not engage at all with the reasons the applicant laid out for why he could not have a solicitor appear, and why he could not appear personally. After the applicant responded that the lawyer had not authorised the applicant to provide his details unless he was going to get paid, the Minister’s solicitor said in an email:

You have sought an adjournment because your barrister is not available on 4 April 2016. However, it appears that you have not in fact even engaged a solicitor to act for you, let alone a barrister to appear at the hearing. Therefore, it is not clear to us that there is any basis for agreeing to an adjournment of the hearing on the grounds you have given.

The email went on the suggest the applicant file his submissions on a certain date. It did not engage at all with the basis on which the applicant requested the Minister’s consent to an adjournment, and did not provide any logical reason for refusing to consent.

35    The applicant then applied again to chambers for an adjournment, but chambers did not consider the request as it appeared the email had not been copied to the Minister’s solicitors. However, the applicant’s email was subsequently forwarded by chambers to the Minister’s solicitors on 29 March 2016, together with an email saying that, as there had been no agreement from the Minister regarding the adjournment request, the matter remained listed for hearing on 4 April 2016. The email stated that “any application for an adjournment must be made on that day”. The applicant signed the Notice of Discontinuance that day (29 March 2016).

36    While, as noted, the refusal of the adjournment application is not a matter that is before this court on the present application, the conduct of the Minister’s legal representatives was not, in my view, the conduct of a model litigant where the matter had been listed at short notice, and the solicitors had been made aware that the applicant was not able to attend court on 4 April 2016 and did not have a solicitor willing to attend without receipt of fees the applicant said he was not able to pay. To be clear, I am not suggesting the Minister ought to accede to adjournment requests whenever and however they are made. What is troubling in the present case is the failure of the Minister’s solicitors to engage with the clear and obvious difficulties that the applicant had in being able to appear and present his case at a hearing that had been brought with only eight business days’ notice.

Associate:

Dated:    4 August 2023