DBA16 v Minister for Home Affairs
[2018] FCCA 2761
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBA16 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2761 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) Visa – Immigration Assessment Authority – application for an extension of time – application filed some 23 months out of time – whether an extension of time should be allowed in the interests of the administration of justice – whether the grounds of the application contain merit – where the Minister claims the Applicant is precluded from seeking relief by reason of Anshun estoppel – extension of time application refused – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Cases cited: Amcor Ltd v Barnes [2016] VSC 707 DBA16 v Minister for Immigration & Anor [2017] FCCA 320 DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 |
| Applicant: | DBA16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2726 of 2018 |
| Judgment of: | Her Honour Judge C E Kirton QC |
| Hearing date: | 13 September 2018 |
| Date of Last Submission: | 13 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Counsel for the Applicant | Ms Kelly |
| Solicitors for the Applicant | Asylum Seeker Resource Centre |
| Counsel for the Respondents | Mr Ciolek |
| Solicitors for the First Respondent | Australian Government Solicitor |
| Solicitors for the Second Respondent | The Second Respondent filed a submitting notice save as to costs |
ORDERS
The application for an extension of time is refused.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2726 of 2018
| DBA16 |
Applicant
and
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of Bangladesh. The Applicant entered Australia as an unauthorised maritime arrival at a location that was (at that time) an excised offshore place. The Applicant applied for a protection visa. A delegate of the First Respondent (Minister) made a decision to refuse to grant a protection visa to the Applicant on 20 July 2016. The Second Respondent (IAA) affirmed the decision made by the Minister’s delegate not to grant a protection visa to the Applicant on 15 September 2016 (IAA Decision).
The Applicant has previously filed a proceeding in this Court under s.476 of the Migration Act 1958 (Cth) (Migration Act) against the Minister and the IAA for judicial review of the IAA Decision. That proceeding was dismissed, as was the Applicant’s subsequent appeal to the Federal Court.
The Applicant has now filed a second application in this Court under s.476 of the Migration Act against the Minister and the IAA for judicial review of the IAA Decision. The Applicant seeks to again agitate his claim for a protection visa in this Court (Substantive Application).
The Applicant also makes a further application pursuant to s.477(2) of the Migration Act for an extension of time within which to make the Substantive Application (Extension of Time Application).
The Substantive Application and the Extension of Time Application were filed on 11 September 2018. The IAA Decision was made on 15 September 2016. Any application in relation to the IAA Decision should have been made within the 35 day period as specified in s.477(1) of the Migration Act. The Applicant is therefore some 23 months out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied.
Synopsis
In relation to the Extension of Time Application, I have determined that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to grant the application. I refuse the Extension of Time Application and order the Applicant to pay the Minister’s Costs.
Background
On 7 April 2013 the boat upon which the Applicant was travelling to Australia was intercepted by an Australian Naval ship, four nautical miles north of the Ashmore Islands. Due to problems with the engine of the boat that the Applicant was travelling on, the naval ship took on board all those travelling on the Applicant’s boat. The next morning the naval ship arrived at the Ashmore Islands within the Territory of Ashmore and Cartier Islands. The Applicant was then transferred to an Australian Customs vessel and travelled to Darwin, arriving on 14 April 2013.
On 20 April 2016 the Applicant applied for a Safe Haven Enterprise (subclass 790) Visa (SHEV). In support of his application for the SHEV, the Applicant made a statutory declaration in which he claimed to fear persecution from members of the Awami League by reason of his membership of the Bangladesh Nationalist Party and his having sought asylum in Australia unsuccessfully.
As a result of being an unauthorised maritime arrival and entering Australia at an excised offshore place (at that time), the Applicant was subject to the fast track review process in Part 7AA of the Migration Act.
On 20 July 2016 a delegate for the Minister made a decision to refuse to grant a SHEV to the Applicant (Delegate’s Decision).
On 3 August 2016 the Minister referred the Delegate’s Decision to the IAA pursuant to s.473CA of the Migration Act for review under Part 7AA of the Migration Act.
On 15 September 2016 the IAA affirmed the Delegate’s Decision by making the IAA Decision.
Procedural History
On 19 October 2016 the Applicant filed in this Court an application against the Minister and the IAA for judicial review of the IAA Decision (First Application). At the time the Applicant filed the First Application he was in detention. There were three grounds of the First Application (Original Grounds):
1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3. I am seeking pro bono legal advice with my application and will provide further particulars in due course.
In the First Application the Applicant sought an order that the IAA Decision be quashed, a writ of mandamus directing the IAA to determine the Applicant’s application according to law and a declaration that the IAA Decision was not made in accordance with law.
The Applicant relied upon the Original Grounds at the hearing of the First Application. On 23 February 2017 the Federal Circuit Court dismissed the First Application in DBA16 v Minister for Immigration & Anor[1] (Federal Circuit Court Decision). Judge Driver held that the Applicant had not established that the IAA Decision was affected by any jurisdictional error. The Reasons for Judgment of Judge Driver in the Federal Circuit Court Decision included the following:
26. A person who is subject to the FTAP is a “fast track applicant” a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
27. A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[2]. It is not in dispute the applicant was a fast track review applicant.
28. Subject to certain exceptions which are not relevant for purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again there is no dispute that the delegate’s decision was a fast track decision.
[1] [2017] FCCA 320.
[2] Section 5(1).
By a notice of appeal filed on 13 March 2017, the Applicant appealed the Federal Circuit Court Decision to the Federal Court. On 14 December 2017 the Federal Court of Australia dismissed the Applicant’s appeal from the Federal Circuit Court Decision in DBA16 v Minister for Immigration and Border Protection.[3]
[3] [2017] FCA 1580.
Ashmore Reef Cases
On 11 July 2018, Judge Smith of this Court gave judgment in two matters, DBD16 v Minister for Immigration & Anor[4] (DBD16) and DBC16 v Minister for Immigration & Anor[5] (DBC16). In each proceeding Judge Smith made declarations that the purported appointment of a port in the area of Ashmore and Cartier Islands was invalid on the basis that the relevant area could not meet the definition of a ‘port’ under the Migration Act. The Minister has appealed these decisions.
[4] [2018] FCCA 1801.
[5] [2018] FCCA 1802.
On 6 August 2018, the Full Court of the Federal Court in DBB16 v Minister for Immigration and Border Protection[6] (Perram, Wigney and Lee JJ) (DBB16) made ex tempore orders and declarations in relatively identical terms to the orders made by Smith J in DBD16 and DBC16. The declarations made by the Full Court were as follows:
1. The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.
2.The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).
3. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016.
[6] (NSD354/2017).
A writ of certiorari was also issued by the Full Court quashing the relevant decision of the IAA.
The Full Court’s determination is binding on this Court. As at the time of delivering this decision the reasons for DBB16 have not been delivered.
Current Proceeding
On 11 September 2018 the Applicant filed in this Court an Application for judicial review of the IAA Decision (Second Application). The Applicant is presently in detention. The Second Application is supported by an affidavit affirmed by Noosheen Mogadem, solicitor, on 10 September 2018 and filed 11 September 2018 (Solicitor’s Affidavit).
The Second Appliction applies for an order that the time for making the Second Application be extended under s.477 of the Migration Act.
The grounds of the Extension of Time Application (Extension of Time Grounds) are as follows:
1. On 20 July 2016, a delegate of the Minister for Home Affairs refused the applicant’s application for a Safe Haven Enterprise Visa.
2. On 15 September 2016, the Immigration Assessment Authority affirmed the decision not to grant the applicant a Safe Haven Enterprise Visa.
3. On 19 October 2016, the applicant applied to the Federal Circuit Court for judicial review of the decision of the Immigration Assessment Authority.
4. On 23 February 2017, the Federal Circuit Court dismissed the applicant’s application for judicial review of the decision of the Immigration Assessment Authority.
5. On 14 December 2017, the Federal Court of Australia dismissed the applicant’s appeal from the decision of the Federal Circuit Court.
6. The decision made by the second respondent on 15 September 2016 is affected by jurisdictional error because:
(a)the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette no. GN 3 on 23 January 2002, is invalid;
(b) the applicant entered Australia by sea at Ashmore Reef on or around 14 April 2013;
(c) the applicant therefore is not and has never been an “unauthorised maritime arrival” for the purposes of the Act;
(d) the applicant therefore is not and has never been a “fast track applicant” for the purposes of the Act;
(e) the decision of the first respondent’s delegate dated 20 July 2016 therefore is not and has never been “a fast track reviewable decision” for the purposes of the Act;
(f)accordingly, Part 7AA of the Act did not apply to the delegate’s decision; and
(g) the second respondent had no jurisdiction, power or authority to conduct a review of the delegate’s decision.
7.The applicant was not represented in either his Federal Circuit Court or Federal Court proceedings.
8.The applicant was unaware during the course of his Federal Circuit Court and Federal Court proceedings, that the ground of appeal set out below was available to him.
The ground of the Substantive Application (Invalid Proclamation of Port Ground) is that the IAA Decision is affected by jurisdictional error because:
1.(a) the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette no. GN 3 on 23 January 2002 is invalid;
(b)the applicant entered Australia by sea at Ashmore Reef on or around 14 April 2013;
(c)the applicant therefore is not and has never been an “unauthorised maritime arrival” for the purposes of the Act;
(d)the applicant therefore is not and has never been a “fast track applicant” for the purposes of the Act;
(e)the decision of the first respondent’s delegate dated 20 July 2016 therefore is not and never been (sic) a “fast track reviewable decision” for the purposes of the Act;
(f)accordingly, Part 7AA of the Act did not apply to the delegate’s decision:
(g)the second respondent had no jurisdiction, power or authority to conduct a review of the delegate’s decision.
PARTICULARS
The facts of this case are materially indistinguishable from the facts in the Full Court decision of DBB16 v Minister for Immigration and Border Protection (handed down 7 August 2018) and the decisions of DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801 and DBC16 v Minister for Immigration and Border Protection [2018] FCCA 1802.
This proceeding initially came before the Court on the morning of 12 September 2018. An urgent hearing was sought by the Applicant’s Counsel on the basis of the matters deposed to in paragraphs 16 to 25 of the Solicitor’s Affidavit, under the heading Application urgent. The basis of the application for an urgent hearing was the passage of the Migration (Validation of Port Appointment) Bill 2018 which was introduced into Federal Parliament on 20 June 2018.
The Solicitor for the Minister opposed the urgent hearing of the proceeding that day on the basis that the Minister had only been advised of the hearing late the previous day. A brief adjournment was sought to so that Counsel could be retained to appear on behalf of the Minister, as the proceeding involved some complexity.
The adjournment application was opposed on behalf of the Applicant, however I ordered that the hearing of this proceeding take place the following day on 13 September 2018 to ensure that the Minister had an opportunity to brief Counsel and respond to the matters raised in the Second Application.
Extension of Time Application
An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision: s.477(1). In the case of a migration decision made by the IAA the date of the migration decision is the date of the written statement pursuant to s.473EA(1) and s.477(3)(ca) of the Migration Act. In this case the date of the relevant migration decision is the date of the IAA Decision, being 15 September 2016.
The Second Application was filed on 11 September 2018. It was due to be filed by 20 October 2016: s.477(1) and s.477(3)(ca) Migration Act. The Second Application was therefore filed some 23 months late and the Applicant therefore requires an extension of time to commence this proceeding.
The Applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. Section 477(2) provides:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the administration of justice to make the order.
The Extension of Time Application is supported by the Solicitor’s Affidavit. The Solicitor’s Affidavit provides evidence required by r.44.05 of the Federal Circuit Court Rules 2001 (Cth), which requires that if an extension of time is sought, the application must be supported by an affidavit including:
(2)…
…
(c)if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
In considering whether an extension of time should be granted in the context of the review of administrative decisions, it is well settled that an extension of time is not to be granted unless it is proper to do so[7]. The legislative time limits are not to be ignored[8]. The relevant considerations include:
a)An acceptable explanation for the delay[9];
b)Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against granting an extension[10];
c)The mere absence of prejudice to the respondent is not enough to justify the grant of an extension[11];
d)The merits of the substantive application are also properly to be taken into account in considering whether an extension of time should be granted[12].
[7] Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 310.
[8] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535, 550.
[9] Duff v Freijah (1982) 43 ALR 479, 485.
[10] Doyle v Chief of General Staff (1982) 42 ALR 283, 287.
[11] Douglas v Allen (1984) 1 FCR 287; Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311.
[12] Lucic v Nolan (1982) 45 ALR 411; Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, 16 (Farrell J); MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, 45-58.
Explanation for Delay
In this matter the delay in filing the Application is some 23 months. The Applicant’s Counsel described the delay as “very lengthy” and “significant”.
The Grounds of the Extension of Time Application provide two explanations for the delay as follows:
7.The applicant was not represented in either his Federal Circuit Court or Federal Court proceedings.
8.The applicant was unaware during the course of his Federal Circuit Court and Federal Court proceedings, that the ground of appeal set out below was available to him.
In relation to these two grounds the Applicant’s Solicitor’s Affidavit states:
5.I am informed by the applicant, and believe, that the applicant was self-represented in the proceedings before the Federal Circuit Court and the Federal Court. I have reviewed the decision of the Federal Circuit Court and the Federal Court. The applicant’s instructions to me are consistent with what is recorded in the decision in each case.
6.I am informed by the applicant, and believe, that he did not know during the course of his previous court proceedings that the ground of review set out in the current application was available to him.[13]
[13] Affidavit of Noosheen Mogadem, affirmed 10 September 2018, [5]-[6].
Counsel for the Applicant submitted that the Invalid Proclamation of Port Ground was a highly technical issue. It required an applicant to have an understanding of the nature of power in the Australian legislative system and to understand the principles relating to the limits of that power. To understand the issue, it would require an applicant to know how to construe legislation, taking into account the limits of government power. The issue would also require applicants to know practically where they were intercepted by Australian officials and whether they entered Australia at a place called the Ashmore Islands. It was submitted that this information was something applicants would not necessarily know, depending upon the circumstances in which they came into the custody of Australian officials. It was submitted that it would require this particular Applicant to be able to comprehend the issue when English was not his first language and when he required an interpreter for assistance in legal proceedings and whilst he was in detention. This particular Applicant requires an interpreter in the Bengali language. It was submitted that this was a factor relevant to his capacity to make reasonably diligent inquiries to identify the grounds he now relies on in this application.
It was submitted by Counsel for the Applicant that the Applicant could not have been expected to have identified the Invalid Proclamation of Port Ground any earlier in time. He acted as soon as it was brought to his attention that he was affected by the Invalid Proclamation of Port Ground and took immediate steps to file the Second Application.
Prejudice to First Respondent
The Applicant’s Counsel contended that there was no prejudice to the Minister if the orders sought in the Second Application were made. It was submitted that as the Applicant’s First Application had been previously dismissed and he had been ordered to pay the Minister’s costs, the issue of the costs of the Second Application could be dealt with “very easily”. Presumably this was to be by way of offsetting the costs of each these applications.
It was also submitted by Counsel for the Applicant that there were a large number of other proceedings before the Court agitating the same point. It was submitted that the Minister was not contesting them and accepting that this Court is bound by the Full Court.
Counsel for the Minister submitted that the Minister has filed appeals from the decisions of this court in DBD16 and DBC16 and that the Minister had not yet had the opportunity to consider the reasons of the Full Court in DBB16, as they have not as yet been delivered. Counsel for the Minister formally submitted that DBB16 was wrongly decided.
Merits of Substantive Application
In determining if it is necessary in the administration of justice to make an order extending time, the merits of the application are to be taken into account. In considering the merits of this case Counsel for the Applicant submitted that I should take into account the principles adopted by Mortimer J in MZABP v Minister for Immigration and Border Protection[14] (MZAPB) and approved by the Full Court in MZABP v Minister for Immigration and Border Protection[15], where her Honour, said:
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.[16]
[14] (2015) 242 FCR 585, [58]-[63].
[15] (2016) 152 ALD 478, [38].
[16] MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [63].
Her Honour continued with:
In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot be still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.[17]
[17] Ibid., [66].
Counsel for the Minister conceded that this case was an Ashmore-affected case and that this Court was presently bound by the Full Court of the Federal Court’s decision in DBB16.
Counsel for the Minister submitted that the Applicant was however precluded from seeking the relief sought in the Substantive Application by reason of the principle in Port of Melbourne Authority v Anshun Pty Ltd[18] (Anshun).
[18] (1981) 147 CLR 589.
It is therefore necessary in the circumstances of this case to consider whether an Anshun estoppel precludes the Applicant from seeking the relief sought in the Substantive Application. In light of the approach to be taken in MZABP, this consideration is to be undertaken in the context of the Extension of Time Application when considering the merits of the Substantive Application.
Anshun Estoppel
The High Court recently in Tomlinson v Ramsey Food Processing Pty Ltd[19] set out an explanation of all three forms of estoppel in relation to judicial determinations, being: “cause of action estoppel”, “issue estoppel” and “Anshun estoppel”. In relation to Anshun estoppel, their Honours observed that the estoppel:
[19] (2015) 256 CLR 507.
[…] 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.[20]
[20] Ibid., 518 (French CJ, Bell, Gageler and Keane JJ).
(Footnotes omitted)
In Timbercorp Finance Pty Ltd (In Liq) v Collins & Anor[21] the plurality reiterated that an Anshun estoppel:
[…] is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun[22] that there could be no estoppel “unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would be unreasonable not to rely upon it” (emphasis added).[23]
[21] (2016) 259 CLR 212.
[22] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602.
[23] (2016) 259 CLR 212, 236 (French CJ, Kiefel, Keane and Nettle JJ).
The principles that inform whether an Anshun estoppel will apply are usefully set out in the decision of Sloss J in Amcor Ltd v Barnes[24] where her Honour said:
In substance, the Civil Procedure Act reinforces the traditional rationales for Anshun estoppel, which include avoiding inconsistent judgments[25], avoiding multiplicity of proceedings[26] and promoting ‘the efficient use of court resources and time[27]’.[28]
[24] [2016] VSC 707.
[25] Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd (2011) 248 FLR 193, 218 (McLure P).
[26] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575, 604, [36] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Haidari v The Queen [2014] VSCA 91, [53] (Weinberg JA, Santamaria JA agreeing); Shaw v Gadens Lawyers [2014] VSCA 74, [61] (Maxwell P, Tate JA, Garde AJA agreeing).
[27] Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd (2011) 248 FLR 193, 218, [125] (McLure P); Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375, 388, [34] (Flick); Ling v Commonwealth (1996) 68 FCR 180, 182 (Wilcox J).
[28] [2016] VSC 707, [1593].
Sloss J reviewed the various cases that have been decided in the 35 years since Anshun was decided and considered that the principles that emerge are to the effect that:
The courts look to substance over form[29], determining whether Anshun estoppel applies in the light of “realities”[30], “practicalities”[31] and “the proper conduct of modern litigation”[32]. The courts make a broad merits-based judgment” taking into account “the public and private interests involved” and “all the facts of the case” [33].[34]
[29] See Bazos v Doman [2001] NSWCA 347, [44] (Stein JA, Priestly and Beazley JJA agreeing); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93, 121 [122] (Murphy JA, Bus JA and Chaney J agreeing).
[30] Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, 265 [114-115] (Handley (AJA).
[31] Gibbs v Kinna [1999] 2 VR 19, 20 [1] (Ormiston JA); Solak v Registrar of Titles (2011) 33 VR 40, 56 [79] (Warren CJ, Neave JA and Hargrave AJA agreeing).
[32] Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, 247 [3] (Allsop P); Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665, 687 [68] (Bathhurst CJ, Beazley P, and Emmett JA agreeing); Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29 , 72 [229] (Sacker J); Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375, 388 [34] (Flick J); C G Maloney Pty Ltd v Noon [2011] NSWCA 397, [62] (Campbell JA), [159] (Handley AJA]; HM Hire Pty Ltd v National Plan and Equipment Pty Ltd [2014] 2 Qd R 44, 50 [12] (Applegarth J).
[33] Johnson v Gore Wood & Co [2002] 2 AC 1, 31 (Lord Bingham); AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 194 [34] (French CJ); Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, 247 [3] (Allsop P), 260 [79] (Giles JA), 264 [111]-[112] (Handley AJA).
[34] [2016] VSC 707, [1591].
The Anshun principle is applicable in judicial review proceedings: Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[35]; Wong v Minister for Immigration and Multicultural and Indigenous Affairs[36].
[35] (2004) 205 ALR 198, [25].
[36] (2004) 146 FCR 10, [39].
It was submitted by Counsel for the Minister that it was unreasonable for the Applicant (in the sense described in Anshun) not to have sought relief on the Invalid Proclamation of Port Ground in the Original Application. In support of this contention Counsel relied upon Metwally v University of Wollongong[37] where their Honours said:
It is elementary that a party is bound by the conduct of his case. 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 when he had an opportunity to do so.[38]
[37] (1985) 60 ALR 68.
[38] Ibid., 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
It was submitted that inadvertence in failing to put a legal point that was available to a party in an earlier proceeding was unreasonable.
Counsel for the Minister also relied upon Kong v Minister for Immigration and Citizenship.[39] In that case Flick J addressed the same issue raised in this case, where the applicant was unaware of an argument available to him until after judgment was handed down in his own proceeding. Flick J said:
[39] (2011) 199 FCR 375.
In determining whether it was “unreasonable” for Mr Kong not to have raised the argument exposed in Dai, it may be accepted that at the time he sought judicial review the jurisdictional error exposed in DAI remained unexplored. The fact that legal advisors retained in different proceedings at a later point in time successfully exposed an argument previously not discerned must necessarily be balanced against the fundamental concern as to the need for finality in litigation and also such further considerations as:
(i) the public interest in ensuring that administrative decision-making is made in accordance with law; and
(ii) the public interest in certainty in administrative decision-making and decisions being made in a timely and efficient manner.
…
The law is constantly developing – especially in the area as to what constitutes “jurisdictional error”. A successful argument as to what constitutes “jurisdictional error” should not generally be the occasion for prior disappointed applicants seeking judicial review to re-agitate issues which had previously been finally resolved. To accept such a general proposition would undermine finality in public law litigation and be productive of inconsistent judgments.[40]
[40] Ibid., 390.
Counsel for the Minister relied upon Stuart v Sanderson[41] to articulate other public policy considerations upon which the Anshun principle is founded. These policy considerations include the need to: restrain costs between parties in dispute; avoid “conflicting” judgments; ensure finality of litigation; preserve the orderly administration of justice; and sustain public confidence in curial disposition of disputes.[42]
[41] (2000) 100 FCR 150.
[42] Ibid., 156.
It was submitted by Counsel for the Minister that in light of the public interest in the promotion of the efficient use of court resources and time, the finality of litigation and the preservation of the orderly administration of justice, the failure of the Applicant not to have earlier sought the relief he now seeks should be characterised as unreasonable.
The application of the Anshun principle is discretionary. There will be instances where a matter should have been raised earlier but was not and there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court has a discretion, if it determines that special circumstances exist to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: Wong v Minister for Immigration and Multicultural and Indigenous Affairs.[43]
[43] (2004) 146 FCR 10, [38].
Counsel for the Minister submitted however that the Court has a discretion in the application of the Anshun principle in only a limited sense. Counsel relied upon BC v Minister for Immigration & Multicultural Affairs[44] where the Full Court of the Federal Court approved the following observations of the Full Court of the Supreme Court of Victoria in Port of Melbourne Authority v Anshun (No2)[45]:
[..] the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was to consider whether special circumstances existed in the sense that justice require to the non-application of the general rule.[46]
[44] [2002] FCAFC 221.
[45] [1981] VR 81.
[46] BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221, [24].
Counsel for the Minister submitted that this meant that the discretion must be applied judicially. The question for the court is to ask whether it is in the interests of justice that the court, notwithstanding that a point has not been run previously and notwithstanding that it was unreasonable for an applicant to have done so, the applicant shouldn’t be precluded from pursuing the point.
Counsel for the Minister submitted that in this case, on the evidence the only reason the Applicant did not pursue the Invalid Proclamation of Port Ground, was because the Applicant was not aware of the availability of the ground. Counsel argued that this was not sufficient to constitute a special or exceptional circumstance for the purpose of preventing an Anshun estoppel and relied upon two authorities for this proposition: Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[47] and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[48].
[47] [2004] FCA 579.
[48] (2004) 205 ALR 198.
Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[49] was a motion for an extension of time for leave to appeal a judgment of the Federal Magistrates Court.The proceeding had been dismissed in the Federal Magistrates Court on the ground that it was barred by an Anshun estoppel. In that case the Federal Court said:
15. Although the decision of the High Court in Plaintiff S157 was not handed down until after the decision of the Federal Magistrate, I do not consider that this constitutes special circumstances which would enliven a discretion to refrain from the application of an Anshun estoppel.
16. It was perfectly open to the applicant to raise the claim of denial of procedural fairness before the Federal Magistrate notwithstanding that on the then current state of the authorities in this court, if made as a discrete claim of denial of procedural fairness, would have failed. It was a claim which could either have been put forward as an element of the allegation of bias or alternatively it was a claim which could have been brought and pursued upon the basis that it would have failed at first instance but may have succeeded in the event, as was eventually the case, that a favourable decision of the High Court was given on the issue.[50]
[49] [2004] FCA 579.
[50] Ibid., [15]-[16] (Jacobson J).
In Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[51] the Federal Court did not extend time for leave to appeal the judgment of the Federal Magistrates Court because the application for leave to appeal would fail.
[51] [2004] FCA 579.
In Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[52] the applicant’s original migration case was dismissed by consent in the Federal Court before the decision in Minister for Immigration and Multicultural Affairs v Yusuf.[53] In the course of the subsequent hearing before Goldberg J in the Federal Court, the applicant’s counsel conceded that the Anshun principle of estoppel did apply. However counsel for the applicant submitted that even if the claim was unreasonably omitted from the earlier proceeding, the court retained a discretion not to apply the Anshun principle in special circumstances. Special circumstances were claimed as follows:
·The outcome of the proceeding will have serious consequences for the applicant and will determine whether he is permitted to remain in Australia;
·the minister is not subject to the same cost process as other litigants;
·the review of refugee matters involves a complex procedure under the Act, in the Federal Court and the High Court;
·the state of the authorities prior to Yusuf was such that it was reasonable for the applicant not to rely on jurisdictional error as the ground of review in his earlier application.[54]
[52] (2004) 205 ALR 198.
[53] (2001) 206 CLR 323.
[54] (2004) 205 ALR 198, 205.
Goldberg J dismissed the application for the issue of a writ of prohibition and declaratory and injunctive relief. In doing so his Honour said the following:
I accept that the outcome of this application will have serious consequences for the applicant if it is determined against him. However, I do not consider that those consequences constitute a special circumstance warranting a disregard of the Anshun principle. I make the same observation in relation to the other special circumstances relied upon. They are all circumstances that apply, in one form or another, in many cases which come before the court.[55]
[55] Loc. Cit.
Counsel for the Minister noted that the Applicant’s Counsel had emphasised the highly technical nature of the error which it was alleged infected the exercise of jurisdiction by the IAA as a result of the Applicant having passed through the waters within the Territory of Ashmore and Cartier Islands area in transit to mainland Australia. Counsel for the Minister submitted that little weight should be attributed this submission. It was contended by Counsel for the Minister that when a superior court elaborates on the law as to what constitutes a jurisdictional error, it is necessarily of its nature, a highly technical point. Counsel referred to examples such as Minister for Immigration and Multicultural Affairs v Yusuf[56] and Plaintiff S157/2002 v Commonwealth of Australia[57]. It was also submitted by Counsel for the Minister that the authorities of Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[58] and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[59] make it clear that a subsequent development in the law is not enough to constitute a jurisdictional error.
[56] (2001) 206 CLR 323.
[57] (2003) 211 CLR 476.
[58] [2004] FCA 579.
[59] (2004) 205 ALR 198.
Counsel for the Minister also submitted that the fact the Applicant was previously self-represented was something for the Court to take into account, but was insufficient on its own to constitute a special circumstance. In support of this submission Counsel relied upon Kong v Minister for Immigration and Citizenship[60] and Sahin v National Australia Bank Ltd [61] in the Full Court of the Supreme Court of Victoria.
[60] (2011) 199 FCR 375.
[61] [2012] VSCA 317.
In Kong v Minister for Immigration and Citizenship[62] Flick J said:
Although the absence of legal representation may be relevant to a determination as to whether a new ground of review should reasonably have been raised in an earlier round of litigation, it should be recognised that Anshun estoppel does not necessarily arise merely by reason of a litigant being unrepresented[63].[64]
[62] (2011) 199 FCR 375.
[63] MZWGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1501, [11] (Sundberg J).
[64] (2011) 199 FCR 375, 390.
Counsel for the Minister also relied upon the judgment of Ferguson AJA (as she then was) in Sahin v National Australia Bank Ltd [65], as being a reiteration of this point. Her Honour said:
[98] In reaching the conclusion that I have about Anshun estoppel in this case, I have had regard to the fact that the Sahins are not legally qualified and represented themselves throughout the trial and on appeal. However, of itself this does not mean that special circumstances apply such that Anshun estoppel ought not operate[66]. Were there to be a blanket refusal to apply Anshun estoppel where a litigant did not have legal representation, it would put an opposing represented litigant in an intolerable position - subject always to future litigation by the same protagonist unless res judicata or issue estoppel applied. The represented litigant would be unfairly prejudiced. Therefore, whilst the Sahins’ lack of legal representation is something to be taken into account, that is the only matter weighing against the application of Anshun estoppel and, on its own, it is an insufficient reason for permitting them to prosecute the counterclaim.[67]
[65] [2012] VSCA 317.
[66] MZWGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1501 [11]; MZWKJ v Minister for Immigration & Multicultural Affairs [2006] FCA 761 [19]; SZHEW v Minister for Immigration and Citizenship [2009] FCA783 [33]; Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375, [41].
[67] [2012] VSCA 317, [98] (Warren CJ and Neave JA agreeing).
Counsel for the Minister submitted that if it was not sufficient on its own to constitute a special circumstance that an applicant was self-represented and inadvertence to a change in the law was not a special circumstance, the two factors could not combine to create a special circumstance for the purposes of an Ansun estoppel. The Applicant could not surmount this hurdle by pointing to these two factors combined. For these reasons Counsel for the Minister submitted that the application for an Extension of Time should be refused with costs.
Counsel for the Applicant submitted that it should be concluded that no Anshun estoppel arises in this case at all. It was submitted that precluding a party from a claim that they wished to raise was a serious step that should be exercised cautiously. Counsel relied on Habib v Radio 2UE Sydney Pty Ltd[68] where McColl JA said:
In considering whether an Anshun estoppel has been established it is necessary to bear in mind that “shut[ting] out a claim … a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’ ”[69].[70]
[68] [2009] NSWCA 231.
[69] Ling v Commonwealth (1996) 68 FCR 180, 182 (Wilcox J), approved in Bazos and Anor v Doman and Ors [2001] NSWCA 347, [45] (Stein JA), (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.
[70] [2009] NSWCA 231, [85] (Giles and Campbell JA agreeing).
Jurisdictional Error
During submissions a question arose in relation to the relevance of the nature of the jurisdictional error alleged by the Applicant.
It was contended by the Applicant’s Counsel that this was a case dealing with a total failure of jurisdiction. It was submitted that there was a material distinction between a failure to identify an error within jurisdiction or a miscarriage of a power properly conferred and within jurisdiction and a total lack of any authority to consider the jurisdiction at all. It was further submitted that the considerations that relate to those two types of cases are not the same.
The Applicant’s Counsel contended that where dealing with an administrative law proceeding where the question in issue was whether or not an administrative body had jurisdiction, the ordinary principles that would attend an extension of time application do not apply. The application is in effect resolved by the nature of the application being made. No authority was cited to support this submission and the submission was not developed further.
It was submitted by Counsel for the Minister that on the most recent authorities, in the case of an administrative decision maker such as the IAA, there was no such thing as an “error within jurisdiction”. It was submitted that the description “error within jurisdiction” is apt to be applied to courts that are authorised to err, not to administrative decision makers. It was submitted that the High Court now understands jurisdictional error to be a lack of authority to decide. It is an error that a decision maker is not authorised by statute to commit. Counsel relied upon Hossain v Minister for Immigration and Border Protection[71]. The judgment of the plurality provides an explanation of what is a jurisdictional error as follows:
[71] (2018) 92 ALJR 780.
[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as “ involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.
[25] To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an area but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised”.
[26] Although ultimately correct in the result, the majority in the Full Court was therefore wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority. They are one and the same[72].
[72] (2018) 92 ALJR 780, 787.
(footnotes omitted)
It was submitted by Counsel for the Applicant that as a result of the jurisdictional error of the IAA, the Applicant was deprived of a substantive right, being the right to have a merits review in the Administrative Appeals Tribunal subject to the right of review in this court for any jurisdictional error that might arise. However Counsel for the Minister contended that there was no distinction between the case of the Applicant and other cases of common jurisdictional error. In all cases the individual, if error is established, is denied the substantive right of having their application decided in accordance with law. Counsel for the Minister conceded that bias and denial of natural justice as forms of jurisdictional error were more closely related than a wholesale lack of authority to decide. They were however, different points on the spectrum of the various kinds of jurisdictional error, if jurisdictional error is understood as the High Court now understands it to be as a lack of authority to decide.
Consideration
I consider first the question of the nature of the jurisdictional error alleged by the Applicant. I do not accept the submission made by the Applicant’s Counsel that there has been a total failure of jurisdiction. As noted above, no authority was cited to support this submission and the submission was not developed further than the assertion of total failure of jurisdiction. I prefer the submissions of Counsel for the Minister on this point. The High Court now understands jurisdictional error to be a lack of authority to decide and this has recently been explained in Hossain v Minister for Immigration and Border Protection[73]. I accept the submissions made by Counsel for the Minister that there is no distinction between the jurisdictional error in this case and other cases of common jurisdictional error. In all cases, if error is established, the individual is denied the substantive right of having their application decided in accordance with law.
[73] Ibid., [24]-[26].
As I have not accepted the Applicant’s primary submission that there has been a total failure of jurisdiction, it is now necessary to consider the Extension of Time Application. I turn now to consider the Extension of Time Application.
The length of the delay in this case is some 23 months and was described by the Applicant’s own Counsel as “very lengthy” and “significant”. It was an appropriate concession to make.
In relation to the explanation for the delay, I have noted that the decisions of DBD16 and DBC16 were handed down in the Federal Circuit Court on 11 July 2018, two months prior to the filing of the Second Application. The extempore orders and directions in DBB16 were made by the Full Court of the Federal Court on 6 August 2018, one month prior to the filing of the Second Application.
In relation to the explanation for the delay, Counsel for the Applicant submitted that the Applicant had acted as soon as he became aware that he was affected by the issues that arise in this proceeding. Counsel for the Applicant submitted that the Applicant took immediate steps to seek assistance from her instructing solicitor. There is no affidavit from the Applicant deposing when the Applicant first became aware of the Invalid Proclamation of Port Ground and the steps that he took to take legal advice. Further the Solicitor’s Affidavit is silent in relation to when the Applicant says that he first became aware of the Invalid Proclamation of Port Ground.
Further discussion of the Applicant’s explanation for the delay in this case is included in the consideration of the Minister’s claim of Anshun estoppel.
I find that the delay in this case of some 23 months is most significant.
In relation to prejudice to the Minister, as set out above, the mere absence of prejudice is not enough to justify the grant of an extension of time.[74]
[74] Douglas v Allen (1984) 1 FCR 287; Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs & Environment (1984) 58 ALR 305, 311 (Wilcox J).
There is a clear public interest in the prompt disposition of allegations of jurisdictional error against administrative decision makers.[75] Further discussion of this issue is also included in the consideration of the Minister’s claim of Anshun estoppel.
[75] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, [5] (Jessup J).
In turning to consider the merits of the Substantive Application I have taken into account the principles adopted by Mortimer J in MZABP[76] and approved by the Full Court in MZABP v Minister for Immigration and Border Protection[77] as set out above.
[76] (2015) 242 FCR 585, [58]-[63].
[77] (2016) 152 ALD 478, [38].
The Minister submits that the Applicant is precluded from seeking the relief sought in the Substantive Application by reason of Anshun estoppel.
The Invalid Proclamation of Port Ground is a fundamental challenge to the IAA’s authority to make the IAA Decision. In my opinion the Invalid Proclamation of Port Ground was so connected with the subject matter of the First Application as to have made it unreasonable in the context of the First Application for the claim not to have been made or the issue not to have been raised in the First Application: Tomlinson v Ramsey Food Processing Pty Ltd[78]. The Invalid Proclamation of Port Ground was so relevant to the subject matter of the First Application it was unreasonable not to rely upon it: Timbercorp Finance Pty Ltd (In Liq) v Collins & Anor[79].
[78] (2015) 256 CLR 507, 518 (French CJ, Kiefel, Keane and Nettle JJ)
[79] (2016) 259 CLR 212, 236 (French CJ, Kiefel, Keane and Nettle JJ).
The Applicant is bound by the conduct of his case in the First Application[80].
[80] Metwally v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
I find that it was unreasonable of the Applicant not to have included the Invalid Proclamation of Port Ground in the First Application. My reasons for doing are in accordance with the passage from the judgment of Flick J in Kong v Minister for Immigration and Citizenship[81] and set out in paragraph 53 above.
[81] (2011) 199 FCR 375.
In this case the Applicant has agitated the First Application in the Federal Circuit Court and also before the Federal Court. In addition to the matters referred to by Flick J in Kong v Minister for Immigration and Citizenship[82], my reasons also include the need to preserve the orderly administration of justice and the need to sustain public confidence in curial dispositions: Stuart v Sanderson[83].
[82] Ibid.
[83] (2000) 100 FCR 150, 156.
The application of the Anshun principle is discretionary. The Court has a discretion if it determines that special circumstances exist to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: Wong v Minister for Immigration and Multicultural Affairs[84]; BC v Minister for Immigration & Multicultural Affairs[85].
[84] (2004) 146 FCR 10, [38].
[85] [2002] FCAFC 221, [24].
I have considered whether special circumstances exist that would to permit the Applicant to raise the Invalid Proclamation of Port Ground in the Substantive Application, notwithstanding that I have found that it was unreasonable to have not done so in the First Application.
On the evidence the only reason that the Applicant did not pursue the Invalid Proclamation of Port Ground, was because the Applicant was not aware of the availability of the ground. I reject this as a special or exceptional circumstance on same basis of the reasoning as the Federal Court in Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[86] (paragraphs 60-61 above) and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs[87] (paragraphs 62-63 above).
[86] [2004] FCA 579.
[87] (2004) 205 ALR 198, 205.
I have considered whether the fact that the Applicant was previously self-represented was circumstance that the Court should take into account as a special or exceptional circumstance. I have taken into account the comments of Flick J in Kong v Minister for Immigration and Citizenship[88] (paragraph 66 above) and Ferguson J (as she then was) in Sahin v National Australia Bank Ltd[89] (paragraph 67 above). Regrettably the position of the Applicant in this case applies to many applicants who come before the courts in migration cases. I find that in this case, being-self represented would be an insufficient reason alone to successfully raise against the application of the Minister’s claim of Anshun estoppel. The Applicant would inevitably be met with Anshun estoppel.
[88] (2011) 199 FCR 375, 390.
[89] [2012] VSCA 317, [98] (Warren CJ and Neave JA agreeing).
I have concluded therefore that there are no special circumstances or exceptional circumstances that would to permit the Applicant to raise the Invalid Proclamation of Port Ground in the Substantive Application. The Invalid Proclamation of Port Ground in the Substantive Application would be met with a successful Anshun estoppel.
In my opinion on an impressionistic consideration and without full argument, I find the Invalid Proclamation of Port Ground hopeless and bound to fail on the basis that it will inevitably be met with a successful claim for Anshun estoppel by the Minister. I therefore find the merits of the Substantive Application as having no reasonable prospect of success and bound to fail.
Conclusion
For the forgoing reasons, including the Applicant’s substantial and unreasonable delay, I find that due to the Minister’s claim of Anshun estoppel, the Substantive Application has no reasonable prospect of success and is bound to fail.
I am therefore satisfied that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to extend the time for the Applicant to file the Second Application.
I therefore refuse the Extension of Time Application and order that the Applicant pay the First Respondent’s costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 27 September 2018
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