Afh15 v Minister for Immigration

[2017] FCCA 2275

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFH15 v MINISTER FOR IMMIGRATION [2017] FCCA 2275

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of an officer of the Department of Immigration and Border Protection based on the same argument and issue previously and adversely decided against the applicant in AFH15 v Minister for Immigration and Border Protection [2016] FCCA 99; 308 FLR 369 – application by Minister for summary dismissal granted – proceeding was subject to res judicata, issue estoppel and constituted an abuse of process – proceeding therefore dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48B, 195A, 198, 417
Federal Circuit Court of Australia Act 1999 (Cth), s.17
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

AFH15 v Minister for Immigration and Border Protection [2016] FCCA 99; 308 FLR 369

AFH15 v Minister for Immigration [2017] FCA 1028
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Tomlinson v Ramsey Food Processing (2015) 256 CLR 507
Vella v Minister of Immigration (2015) 326 ALR 391

Applicant: AFH15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2275 of 2017

Judgment of: Judge Dowdy

Hearing date: 15 September 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Ms L Buchanan

Solicitors for the Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The Application filed in this Court on 19 July 2017 is dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2275 of 2017

AFH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a male citizen of China who seeks by his Application filed in this Court on 19 July 2017 a writ of prohibition concerning what he asserts to be a decision of a Mr Jack Ma, an officer of the Department of Immigration an Border Protection (Department) dated 22 January 2015 (Ma letter), together with ancillary declaratory and injunctive relief. I proceed on the basis that he also impliedly seeks that the asserted decision be quashed.

2. The respondent, the Minister for Immigration and Border Protection (Minister), by a Response filed on 9 August 2017 asserted that the Application ought to be dismissed on the following grounds:

   a)The Application has not raised an arguable case for the relief claimed:

   i)The grounds of application are predicated on the respondent having commenced the process of consideration of the exercise of power under ss 48B, 195A and / or 417 of the Migration Act 1958 (the Act) in respect of the applicant. No such process was commenced in relation to the applicant.

   b)The application is an abuse of the process of the Court:

   i)The applicant asserts that he has been denied procedural fairness in relation to a decision identified as having been made by an officer of the Minister’s Department on 22 January 2015. The applicant has previously brought proceedings in this Court in relation to the same decision: AFH15 v Minister for Immigration and Border Protection [2016] FCCA 99.

3. Consistent with his Response, the Minister on 7 September 2017 filed an Application in a Case which sought summary dismissal of the Application under s.17(A) of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) on the grounds that:

   a)the applicant has no reasonable prospect of successfully prosecuting his Application (this ground being authorised by s.17(A) of the FCC Act and r.13.10(a) of the Rules under the criterion provided by s.17(A)(3) of the FCC Act); and

   b)the proceeding is frivolous or vexatious; and

   c)the proceeding is an abuse of the process of the Court.

4. The fundamental basis of the Minister’s application for summary dismissal is that the applicant’s application for a Protection visa (to be referred to more fully below) has been finally quelled and determined by the decision of Judge Smith of this Court on 4 February 2016 in AFH15 v Minister for Immigration and Border Protection [2016] FCCA 99; 308 FLR 369 (AFH15 FCC) and that under the principles of res judicata, issue estoppel and abuse of process the applicant had no right or entitlement to commence the present proceeding.

5. At the commencement of the hearing of the summary dismissal application I indicated to the parties that, in favour of the applicant, I would be applying what is known as the General Steels test, set out by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, to all three bases of the summary dismissal application noted in [3] above.

Background

1. The applicant sought an extension of time to appeal from the decision of Judge Smith in AFH15 FCC to the Federal Court of Australia, which application was refused by Siopis J on 31 August 2017 in AFH15 v Minister for Immigration [2017] FCA 1028 (AFH15 FCA). It is convenient and sufficient to reproduce the following paragraphs from the judgment of Siopis J to establish the relevant context to this proceeding:

   [1] This is an application for an extension of time to appeal from the orders of the Federal Circuit Court of Australia, dated 4 February 2016, dismissing the applicant’s judicial review application.

   [2]The applicant is a Chinese national who arrived in Australia on 16 September 2008 as the holder of a student visa. The student visa expired on 15 March 2011, but the applicant remained in Australia.

   [3]On 3 September 2013, the applicant was placed in immigration detention as an unlawful noncitizen.

   [4]On 1 October 2013, the applicant applied for a protection visa.

   [5]On 12 November 2013, a delegate of the first respondent refused the application.

   [6]On 19 November 2013, the applicant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision.

   [7]On 4 February 2014, the Tribunal affirmed the delegate’s decision.

   [8]On 24 February 2014, the applicant applied to the Federal Circuit Court for review of the Tribunal’s decision.

   [9]However, after the applicant had filed his review application, the Department of Immigration and Border Protection (the department) published a report advising that in February 2014 there had been an accidental publication on the department’s website of the personal information of about nine thousand persons who were then in immigration detention (the data breach). The applicant was one of the detainees whose personal information had been published on the department’s website.

   [10]In March 2014, the applicant received a letter from the department, dated 12 March 2014 (the March letter). The letter informed the applicant of the data breach and stated that its impact on him personally would be assessed as part of the department’s “normal processes”. The applicant was also told he could raise any concerns he had during that process.

   [11]On 14 July 2014, the applicant received a second letter from the department inviting him to put any concerns he had regarding the data breach to the department. The applicant responded to this invitation by a letter dated 17 July 2014, stating his concerns.

   [12]On 22 September 2014, by consent, the Federal Circuit Court quashed the Tribunal’s decision of 4 February 2014 and remitted the applicant’s review application to the Tribunal for determination according to law.

   THE TRIBUNAL

   [13]On 27 November 2014, consequent upon the remittal by the Federal Circuit Court of his review application to the Tribunal, the applicant attended a hearing of his review application before that differently constituted Tribunal.

   [14]At the Tribunal hearing, the applicant claimed to fear harm on the basis that he was a Falun Gong practitioner. The applicant also claimed that he feared harm on the basis that the data breach would have resulted in his personal information being made available to the Chinese authorities. The applicant provided to the Tribunal the March letter from the department referring to the data breach.

   [15]On 4 December 2014, the Tribunal again affirmed the delegate’s decision not to grant the applicant a protection visa.

   [16]In its reasons for decision, the Tribunal considered the applicant’s claims in relation to the impact of the data breach on the applicant.

   [17]The Tribunal observed that in the event of Chinese authorities viewing the personal information published because of the data breach, those authorities would learn no more than the fact that the applicant had been detained as a person unlawfully residing in Australia; no details of the applicant’s protection visa claim were published by the data breach. The Tribunal held that the chance of any harm occurring to the applicant by reason of the data breach was “both remote and insubstantial”.

   THE DEPARTMENT’S LETTER OF 22 JANUARY 2015

   [18]On 22 January 2015, the department wrote to the applicant stating that as his claims about the harm feared arising from the data breach had now been assessed by the Tribunal, the department would not be giving further consideration against Australia’s protection obligations to the applicant’s concerns raised in his letter of 17 July 2014.

Decision in AFH15 FCC

1. In his judgment in AFH15 FCC Judge Smith considered the applicant’s application for judicial review of the decision of the RRT of 4 December 2014 upon the basis that it comprised three complaints, being:

   a)a denial of procedural fairness in relation to the RRT decision;

   b)a denial of procedural fairness arising from the Department’s letters to the applicant of 12 March 2014, 14 July 2014 and the Ma Letter of 22 January 2015 in respect of conduct preparatory to a decision by the Minister in relation to the exercise of his personal dispensing powers in ss 48B, 195A and 417 of the Act;

   c)a denial of procedural fairness in the course of conduct preparatory to the removal of the applicant from Australia pursuant to s.198(6) of the Act arising out of the Ma Letter.

2. In the result, Judge Smith dismissed all of the applicant’s complaints and found that he had failed to establish any basis for a finding of jurisdictional error or procedural unfairness.

3. First, Judge Smith dismissed the applicant’s claims that the RRT had failed to accord the applicant procedural fairness.

4. Second, Judge Smith found that there was no evidence that the Minister had decided that he would consider the exercise of one or other of his non-compellable dispensing powers with respect to the applicant under ss 48B, 195A and 417 of the Act and accordingly that there was no obligation on the Minister or the Department to afford the applicant procedural fairness in connection with the data breach or any claim associated with the data breach: see AFH15 FCC [42]. In other words, Judge Smith found that the Minister had not made the initial procedural decision to consider whether to make a substantive decision to lift the bar or grant a visa. I consider that his Honour made this finding having regard to the Department’s letters of 12 March 2014, 14 July 2014 and the Ma Letter because he found at [41]-[42] of AFH15 FCC, as follows:

   [41]In this case there was no direct evidence about any International Treaties Obligations Assessments process or, indeed, the number of people whose personal details had been disclosed or the likely expense involved in dealing with the claims arising as a result. As I have said, unlike in SZSSJ, there was no letter to the applicant indicating that an International Treaties Obligations Assessments process had been commenced. There was no letter indicating that one would be commenced. There were only the vague references in the letters to the Department’s “normal processes”.

   [42]I infer from those facts that no International Treaties Obligations Assessments process was ever commenced in respect of the applicant. As a consequence, I cannot and do not infer that the Minister had decided, in respect of this applicant, that he would consider the exercise of one or other of his dispensing powers. That means that, unlike SZSSJ, this case is governed by the outcome in Plaintiff S10/2010. In other words, there was no obligation on the Minister or his Department to afford the applicant procedural fairness in connection with the data breach or any associated claim.

   (emphasis added)

5. Third, Judge Smith accepted that the Ma Letter was a migration decision because it was conduct preparatory to a decision required to be made under the Act, namely whether or not the applicant was to be removed from Australia under s.198(6) of the Act. Nevertheless, his Honour also rejected this complaint, finding that there was no obligation to afford procedural fairness requiring the Department to give the applicant a full copy of the final KPMG report in respect of the data breach and therefore no breach of procedural fairness was established.

Application for Extension of Time to Appeal to the Federal Court of Australia and Decision in AFH15 FCA

1. On 11 March 2016 the applicant applied to the Federal Court of Australia for an extension of time to appeal from the orders of Judge Smith dismissing his application for judicial review in this Court. In the Federal Court the applicant complained only of Judge Smith’s rejection of the first and second complaints summarised at [7(a)] and [7(b)] above. The third complaint dealt with by Judge Smith and summarised at [7(c)] above was not challenged by the applicant in his application for an extension of time to appeal, which was heard by Siopis J.

2. In the result Siopis J found that neither of the two proposed grounds of appeal argued by the applicant had sufficient merit to warrant the grant of an extension of time to appeal and the application for an extension of time to appeal was dismissed.

Grounds of Application in this Court

1. The Grounds relied upon by the applicant in the present proceeding are as follows:

   1.The Minister for the Department of Immigration and Border Protection (the Minister) commenced the process of consideration of the exercise of his powers under section s48B, 195A and/or section 417 of the MigrationAct1958.

   2. The Minister was assisted in the process of consideration of the exercise of the powers by officers of the Ministerial Intervention Unit.

   3. The officers of the Ministerial Intervention Unit were required to accord procedural fairness to the Applicant during the process of assisting the Minister in the consideration of the exercise of his powers.

   4. At no point was the Applicant given any notice of the commencement of  the consideration of the exercise of  the powers under section 48B , 195A and/or s417.

   5.    At no Tina was the Applicant given the opportunity to make any submissions to the Ministerial Intervention Unit in relation to its function in assisting the Minister in considering the exercise of his discretionary powers.

   6. At no time was the Applicant advised of any adverse information and/or issue which  would  be taken into account  by Ministerial Intervention Unit in making a recommendation  to the Minister , that the outcome of the consideration of the Minister 's discretion to be adverse to the Applicant.

   7. The Applicant has been denied procedural fairness in the process of consideration of the exercise of statutory powers under s48B, 195A and/or s417 of the MigrationAct 1958.

   (errors in original)

Consideration

1. In my view Ground 1, upon which Grounds 2 – 7 are dependent, is manifestly hopeless.

2. I find as a fact that there is no evidence at all that the Minister has taken the first of the two distinct statutory steps (as discussed by the High Court of Australia in Minister for Immigration v SZSSJ (2016) 90 ALJR 901 at 908 [33] and 911 [53]-[55]) of personally deciding to consider whether to exercise any of his dispensing powers with respect to the applicant either to lift the bar or to grant a visa under ss 48B, 195A or 417 of the Act.

3. In fact in its terms the Ma Letter is quite inconsistent with any suggestion that the Minister has personally decided to consider whether to make a substantive decision to consider the exercise of his powers under ss 48B, 195A and 417 of the Act. The last two paragraphs of the Ma Letter stated as follows:

   On 27 November 2014, you attended a hearing by the RRT and made claims relating to the unintentional release of your personal information on the department’s website. On 5 December 2014 (sic; 4 December 2014) the RRT found that the chance of any harm stemming from the unintentional release of some of your personal information to be “both remote and insubstantial” and again affirmed the department’s decision to refuse you a protection visa. As your claims in relation to the unintentional release of your personal information have now been assessed by the RRT, the department will not be giving further consideration against Australia’s protection obligations to the concerns raised in your letter of 17 July 2014.

   Since your application is finally determined under section 5.9 and 9(A) of the Migration Act 1958, it is not subject to any further form of review

4. Accordingly, in my view it follows that Ground 1 must fail, and consequently that Grounds 2 – 7 must also fail.

5. In my view this finding in itself would have justified summary dismissal of the present proceeding on the General Steels test because it could not possibly succeed and was manifestly groundless. However, there is much more to this summary dismissal application than merely that. This is because in my opinion in AFH15 FCC Judge Smith has already heard and determined the very self-same ground and argument as the Application presently propounds in this proceeding. The applicant in this proceeding is seeking to re-litigate one of the matters which was determined adversely to him by Judge Smith who found, as recorded in [10] above, that the Minister in the context of the same relevant facts and letters, including the Ma Letter, had not decided in respect of the applicant that he would consider the exercise of one or other of his dispensing powers under ss 48B, 195A and 417 of the Act.

6. In these circumstances the doctrines of res judicata and issue estoppel are applicable. For present purposes those doctrines are sufficiently described by Gageler J in Plaintiff S3/2013 v Minister for Immigration (2013) 297 ALR 560 at 562 at [10]-[11]:

   [10] In D’Orta-Ekenaike v Victoria Legal Aid, the joint judgment of four members of the High Court described “[a] central and pervading tenet of the judicial system”: “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. Their Honours continued (at [34]):

   [34] The tenet … finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [Footnotes omitted.]

   [11]It is unnecessary, for the purposes of considering the first of the grounds on which the minister seeks an order that the proceeding be dismissed, to consider the extent to which the doctrines of res judicata and issue estoppel apply to proceedings in the original jurisdiction of the High Court under s 75(v) of the Constitution. It is sufficient to recognise the application to that original jurisdiction of the general principle, stated in the joint judgment of three members of the High Court in Walton v Gardiner, that:

   … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

1. In my view the doctrines of res judicata and issue estoppel preclude the applicant from bringing and maintaining this proceeding because Judge Smith in AFH15 FCC has already found adversely to him on the very same issue he seeks to agitate in this Court.

2. The doctrines of res judicata, issue estoppel and abuse of process overlap and the relationship between each of them was recently stated by French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at 518-519 at [25]-[26] as follows:

   [25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

   [26]Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

   (footnotes omitted)

3. Accordingly, in my view, if I was wrong in finding that Judge Smith in AFC15 FCC had already heard and determined Ground 1 as relied on by the applicant in this case, the applicant is still precluded from maintaining the present proceeding because doing so is an abuse of process. This is because, on the assumption that the applicant did not put the present Ground to Judge Smith, such Ground is so closely related to the matters which were considered by Judge Smith that he ought to have done so. In this respect I refer to the statement of principle by Gageler J in Vella v Minister of Immigration (2015) 326 ALR 391 at [18]-[19]:

   [18] In University of Wollongong v Metwally (No 2), where a new argument of constitutional invalidity was sought to be raised after the hearing of a special case in this Court in which validity had been assumed, this Court unanimously stated:

   “Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

   [19]The principle to which reference was made in Metwally (No 2) is reflected in the overlapping doctrines of issue estoppel and abuse of process recently considered in Tomlinson v Ramsey Food Processing Pty Ltd. It is not necessary or appropriate to bring either of those specific doctrines to bear in the present case. It is sufficient that the principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.

Conclusion

1. In my view the Application filed in this Court on 19 July 2017 ought to be dismissed pursuant to r.13.10 of the Rules because the applicant has no reasonable prospect of successfully prosecuting the proceeding and it is frivolous and vexatious in the technical sense and an abuse of the process of the Court.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  22 September 2017