AKG19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 1278

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AKG19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1278   

File number(s):

BRG 515 of 2021

Judgment of:

JUDGE EGAN

Date of judgment:

27 November 2024

Catchwords:

MIGRATION LAW – where the applicant made a second application for extension of time in respect of a visa refusal decision – where such application was an abuse of the process of the Court – where application was made some 2.75 years out of time – application dismissed.  

Legislation:

Judiciary Act 1903 (Cth), s. 39B

Migration Act 1958 (Cth, 476A(3)(a)

Cases cited:

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Paramasivam v Flynn (1998) 90 FCR 489

Pearson v Minister for Home Affairs [2022] FCAFC 203

Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8

Re Commonwealth; Ex parte Marks (2000) 177 ALR 491

Tomlinson v Ramsey Food Processing Ltd (2015) 256 CLR 507

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of hearing:

11 September 2023

Place:

Brisbane

Solicitor for the Applicant:

Taylor Rose

Solicitor for the First Respondent:

Minter Ellison

The Second Respondent:

Giving a submitting appearance, save as to costs

ORDERS

BRG 515 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AKG19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	27 NOVEMBER 2024

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”.

3.The application for extension of time and the Amended Application for Review filed on 10 July 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. The applicant is a citizen of Vietnam who identified as a Roman Catholic. He is about 37 years old. He arrived in Australia on 31 May 2013.

2. On 22 March 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV), his having claimed that he suffered religious persecution in Vietnam.

3. On 6 December 2018, a delegate of the Minister refused the visa application. The delegate found that Australia owed no protection obligations to the applicant. The matter was referred to the Immigration Assessment Authority (“the Authority”) for a fast-track review.

4. On 11 January 2019, the Authority affirmed the decision of the delegate.

5. On 15 October 2021, the applicant filed an Originating Application for Review of the decision of the Authority. The filing of that originating application was some 2.75 years out of time. An application for extension of time was accordingly sought in such application for review.

   OTHER CIRCUMSTANCES OF RELEVANCE

6. The application for an extension of time was opposed by the first respondent on the following grounds: [1]

   (a)the Applicant was prohibited on the grounds of res judicata/cause of action estoppel, issue estoppel and/or Anshun estoppel from bringing another extension of time application;

   (b)alternatively, the Applicant was prohibited from bringing the extension of time application on a true construction of the Migration Act 1958 (Cth);

   (c)alternatively, the extension of time application should be dismissed as an abuse of process; or

   (d)alternatively, the extension of time application should be dismissed because it was not “necessary in the interests of the administration of justice” to grant the extension of time.

   [1]           First Respondent’s written submissions filed on 7 September 2023

7. The Court accepts and adopts as accurate the relevant factual background to this matter as was set out in [5] – [18] inclusive of the first respondent’s submissions filed on 21 August 2023 as follows:

   The SHEV application, the delegate’s decision and the IAA’s decision (in this proceeding)

   5.        The Applicant is a citizen of Vietnam.

   6.On 31 May 2013, the Applicant arrived in Australia as an unauthorised maritime arrival.

   7.On 22 March 2017, the Applicant applied for a SHEV

   8.On 6 December 2018, a delegate of the Minister (delegate) refused the SHEV.

   9.On 11 December 2018, the delegate's decision was referred to the IAA for review.

   10.On 11 January 2019, the IAA affirmed the delegate’s decision.

   The first judicial review application (BRG102/2019)

   11.On 1 February 2019, the Applicant (via his legal representatives) applied for judicial review of the IAA’s decision (BRG102/2019).

   12.On 6 September 2019, the Applicant lodged a notice of discontinuance in that proceeding.

   13.However, the filing of the notice of discontinuance was ineffective because the leave of the Court or a registrar was required to discontinue a proceeding at that time. In consequence of this, the parties agreed to orders that the proceeding be discontinued and this Court (constituted by Judge Egan) made orders to that effect.

   The second judicial review application (BRG807/2019) (and the associated extension of time application)

   14. On 18 September 2019, the Applicant (via his legal representatives) filed a further application for judicial review of the IAA’s decision (BRG807/2019).

   15.On 4 December 2019, the Applicant (seemingly appreciating that the second judicial review application was out of time) filed an amended application seeking an extension of time to seek judicial review of the IAA’s decision.

   16.On 4 December 2019, a final hearing proceeded before Judge Jarrett. The Applicant was legally represented by Ms Ngoh Anh Donald of AustralAsia Law. Judge Jarrett dismissed the extension of time application.

   17.Judge Jarrett’s reasons have not been published. However, a hearing report from the Minister’s legal representative who attended the hearing records the conduct of the hearing and his Honour’s reasons for judgment, in the following way:

   Ms Donald confirmed that she relied on the amended application dated 29 November 2011, which she stated she had attempted to file on a number of occasions without success. His Honour noted that the document had been accepted for filing on both 3 and 4 December 2019, and thus Ms Donald relied on the version accepted for filing on 4 December 2019. Ms Donald also confirmed that she did not press the interlocutory order sought in the application for the Court to grant leave for the applicant to withdraw the notice of discontinuance filed on 6 September 2019 in the previous proceeding (BRG102/2019). Accordingly, the hearing proceeded on the basis of the application for
   the extension of time.

   In addressing the extension of time application, Ms Donald commenced by explaining that the delay was caused by intervening events, particularly the applicant getting married and then seeking a partner visa. Ms Donald attempted to give evidence from the bar table regarding the applicant's domestic circumstances, and his Honour stopped her and advised that he would not take into account factual matters stated by Ms Donald that were unsupported by evidence. Ms Donald asked if the matter could be stood down for an hour to allow the applicant to send her an email regarding his circumstances. His Honour stated that he thought this to be inappropriate,and asked for my views. I noted that the Minister did not take issue with the facts set out in the applicant's affidavit regarding his marriage and personal circumstances, and hence that there seemed little point in standing the matter down to have the applicant provide an email that would in all likelihood be irrelevant to the issues in the application.

   His Honour stated that the matter should proceed, and he invited Ms Donald to address the merits of the proposed substantive application. In relation to the merits, Ms Donald stated that she had received and understood the Minister's submissions, and that she had nothing to add. That is, she essentially conceded that there were no merits to the proposed substantive application.

   Following this, Ms Donald explained that the applicant intends to have a formal marriage ceremony in Australia in January, and so he is seeking an extension of time from the Court to allow him to stay in the country until that ceremony is completed. His Honour appeared incredulous at this suggestion.

   His Honour invited reply submissions. His Honour asked whether there was anything I wished to add to the written submissions, and I confirmed that I was content to rely on the written submissions in relation to the matters they dealt with. However, I stated that
   I wished to address the last point made by Ms Donald regarding the applicant seeking an extension of time to stay in Australia for the purpose of allowing him to participate in the marriage ceremony. I submitted that what Ms Donald had stated appeared to suggest
   that this application amounts to an abuse of process, as the application has been brought for an ulterior purpose.

   Judgment

   His Honour delivered an ex-tempore judgment, dismissing the extension of time application with costs. His Honour set out the procedural background to the application and the previous application (BRG102/2019) and noted that the applicant appeared to
   have made a tactical decision to discontinue his previous judicial review proceeding to allow him to make a partner visa application. His Honour noted that Ms Donald had confirmed that the applicant did not seek to press an application to have leave to
   withdraw the notice of discontinuance, and his Honour stated that even had such an application been pressed it would have had no reasonable prospect of success.

   With respect to the extension of time application, his Honour first addressed the question of delay, and he noted that it was somewhat curious in this case because there had been no real delay in instituting the initial proceedings, but that the delay in the current application had been occasioned because of the applicant's apparent tactical decisions. His Honour did not consider it necessary to offer a final view on the question of delay, and accordingly assumed for present purposes that the delay was reasonable and had been adequately explained. Turning to the merits, his Honour noted the applicant's
   proposed grounds, and while noting that the first ground raised a technical issue, he found that the grounds had no merit. His Honour referred to the Minister's submissions, and also noted that Ms Donald had conceded that the application has no merit. His Honour further commented that Ms Donald's explanation that this application was
   brought to seek more time to allow the applicant to remain in Australia to allow him to participate in the marriage ceremony showed that the application was brought for an ulterior purpose, and he commented that it was an inappropriate use of both the migration system and the Court's resources.

   Accordingly, the extension of time application was dismissed with costs.

   The third judicial review application (this proceeding) (and the associated extension of time application)

   18.On 15 October 2021 (over 1.75 years after Judge Jarrett’s decision), the Applicant lodged another application seeking an extension of time to seek judicial review of the IAA’s decision. That is the extension of time application before this Court.

   FIRST RESPONDENT’S GROUNDS OF OBJECTION

8. In Tomlinson v Ramsey Food Processing Ltd (2015) 256 CLR 507 at [22], French CJ, Gageler and Keane JJ held as follows:

   22. “Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding.  The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment.  It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment.  The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment.  The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second.  Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.  The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense.  Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.”

9. In Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8 at [11], Edelman J said as follows:

   11. “The "usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them".  Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final.  If it is open to the parties to bring another application then the legal effect is not final, even if the second application would usually be "doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application".”

10. In the application for an extension of time brought by the applicant in different proceedings before His Honour Judge Jarrett, namely in BRG 807/2019, Judge Jarrett heard argument and thereafter handed down ex tempore reasons for judgment. The substantive application concerned grounds for review of the refusal decision in respect of the applicant’s visa application. It was based upon an argument related to the applicant’s immigration status. The applicant asserted that he was not an unauthorized maritime arrival at the time he arrived at Christmas Island. His Honour heard that matter and dismissed the extension of time application. In doing so, Judge Jarrett finally determined the rights of the parties in the principal cause then pending between them. Thereafter, the Anshun estoppel principle applied so as to prevent the agitation in another proceeding of that which ought to have been the subject of application or claim in the proceeding which was before Judge Jarrett.

11. Had the applicant sought to challenge the decision of Judge Jarrett, he could have made application to the Federal Court for an order quashing Judge Jarrett’s decision pursuant to the provisions of s. 39B of the Judiciary Act 1903 (Cth). The applicant failed to take such course of action, and accordingly, he lost his right to challenge that decision. The decision of Judge Jarrett was a final decision both in a legal and practical sense. Were that not the case, an applicant such as the present applicant could continue to make extension of time applications ad infinitum, thereby resulting in a waste of both costs and court time.

12. The Court does not accept the applicant’s submissions on point. The decision in Paramasivam v Flynn (1998) 90 FCR 489 involved an inter partes action between two parties which lead to the making of a decision. The High Court decisions relied upon by the applicant were of a different type to the extension of time application heard by Judge Jarrett and were distinguishable. Significantly, s. 476A(3)(a) of the Migration Act 1958 (Cth) relevantly provided that there was no right of appeal from a decision of this Court relating to a refused application for an extension of time. The very terms of that section put pay to the submission that the applicant had a second bite at the cherry because the legislation did not specifically provide that the filing of a second application for extension of time was not prohibited. As a matter of statutory construction, a refusal decision of an application for an extension of time made by a Judge of this Court was necessarily a final decision of the Court. After the making of such decision, the Court was functus officio.

13. As to the submission by Counsel for the applicant that poor legal advice given by the applicant’s previous lawyers constituted a basis on which it ought to be found that the applicant is now not precluded from bringing the current application for extension of time, it has long been held that such has not been considered a valid basis in an extension of time context. As was held by McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at [15] – [17]:

    15.      “An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.  In that respect, the present case, although important to the applicant, is not as important as many other cases.  Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court. 

    16.      Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.  As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed".  The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

    17.      An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari.  Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision.   Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case.  In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.  In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief.  That is the case here.  The applicant has no arguable case for relief.  If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”

1. The Court finds that the applicant should have included the grounds of review contained in the current proceeding in the proceeding heard and determined by Judge Jarrett. In the applicant’s Irregular Maritime Arrival & Induction Interview conducted on 18 July 2013, [2] the applicant, in answer to Q. 32, clearly articulated that it was because of his alleged religious persecution that he had left Vietnam. In those circumstances, it is inexplicable how such claim was not first pursued before Judge Jarrett. No satisfactory reason has been advanced by the applicant as to why that wasn’t done.

   [2]           See Court Book (CB) pp. 38 - 55

2. The circumstances of this case are clearly distinguishable from the facts in Pearson v Minister for Home Affairs [2022] FCAFC 203. In Pearson, the Court was there dealing with a refusal decision made under s. 501 of the Migration Act in an entirely different context. The applicant in that case was found to have had her visa invalidly cancelled. In the present matter, the applicant had never relevantly had a visa issued to him.

3. On the abuse of process point, the Court respectfully adopts what was held by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-47 where it was said:

   “ … It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

   The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

   In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164–5 ; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447–8 ; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745 ; [1981] 1 WLR 485.

   The following passages illustrate the point:

   The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. …”

4. The Court finds that the 2.75 year delay in the bringing of this application for an extension of time, in itself, was an abuse of the process of the Court. The applicant has failed to explain away the delay in the filing of his application for review in this matter. His affidavit is more in the nature of a chronology which fails to address the reason or reasons why the decision of the Authority in question was not the subject of the filing of a timely application for review.

5. In circumstances where the applicant failed to seek review of the decision of Judge Jarrett, and where there has been no compelling reason advanced in the due administration of justice for the granting of any extension of time, the Court holds that the application for an extension of time ought to be refused based both upon the length of delay in the filing of the application, as well as the duplicity in the nature of relief sought in the respective proceedings. [3] To grant the application for an extension of time would not be in the interests of the due administration of justice.

   [3] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [30] – [31] per Wigney J

6. In the light of above findings, it is unnecessary for the Court to deal with the substantive merits of the application.

7. The application for extension of time is without merit and is dismissed.

8. The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       27 November 2024