Ejm17 v Minister for Immigration
[2019] FCCA 1365
•26 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EJM17 v MINISTER FOR IMMIGRATION | [2019] FCCA 1365 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for relief against the Minister for Immigration on the basis that he had or alternatively should have exercised his non‑compellable discretionary powers under ss.48B, 195A and/or 417 of the Migration Act 1958 (Cth) – applicant claims to fear harm arising from the ‘data breach’ – applicant’s claims surrounding the ‘data breach’ already considered by this Court, the Federal Court of Australia and the High Court of Australia in separate proceedings – application is incompetent because no relevant decision or process had been made or commenced for which judicial review could be sought in this Court – application is also an abuse of process and barred by Anshun estoppel – in any event the applicant fails to identify any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 195A, 417, 476 |
| Cases cited: AVB16 v Minister for Immigration [2016] FCCA 2325 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636 |
| Applicant: | EJM17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3027 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Hutton |
| Solicitors for the Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 29 September 2017 is dismissed as incompetent.
The Applicant is ordered to pay the Respondent’s costs of the proceeding in the sum of $7,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 12 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3027 of 2017
| EJM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a female citizen of China aged 47 years, having been born on 11 July 1971.
By Application filed in this Court on 29 September 2017 she seeks certain injunctive and declaratory relief against the Respondent, the Minister for Immigration and Border Protection (Minister), including an injunction against removing her from Australia, on the apparent basis that the Minister has or should exercise his non‑compellable discretionary powers under ss.48B, 195A and/or 417 of the Migration Act 1958 (Cth) (the Act), and that otherwise she has been denied procedural fairness in the process of consideration of the Minister’s powers under those sections of the Act.
Background
The Applicant arrived in Australia on 24 September 2001 as the holder of a Student visa which expired on 18 February 2002. On 27 April 2002 she was granted a second Student visa which expired on 18 March 2003, at which point she continued to remain in Australia as an unlawful non‑citizen.
On 4 October 2012 she was located working in a Chinese restaurant by immigration officials and detained under s.189 of the Act, and she remained in detention on 31 January 2014. On 10 February 2014 the data breach (data breach) occurred. The data breach was described by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ) at 187 [3] in the following terms:
[3]The Data Breach occurred on 10 February 2014. The department routinely publishes statistics on its website. This time, the particular electronic form of the document in which the statistics were published included embedded information which disclosed the identities of 9258 applicants for protection visas who were then in immigration detention. The document containing the embedded information remained on the website until 24 February 2014.
The Applicant was advised of the data breach in connection with herself by letter from the Department of the Minister (Department) dated 12 March 2014. That letter advised the Applicant that it was possible from the data breach to access her name, date of birth, nationality, gender, and details about her detention and if she had any other family members in detention. The information did not include her address or any former address, phone numbers or any other contact information. It also did not include any information about protection claims that she or any other person may have made.
The letter went on to indicate that the Department would assess any implications for her, personally, as part of its normal processes, and she could raise any concerns she might have during those processes. Then by a further letter from the Department dated 19 June 2014 she was invited to provide information regarding the impact of the data breach on her ability to return to China. By letter dated 24 June 2014 the Applicant’s solicitors made submissions indicating that:
a)the Applicant had Hepatitis B and would find it difficult to treat that if she were removed to China;
b)the release of the information had amplified her stress which she was suffering due to her lengthy detention; and
c)if she were returned to China her former friends and family might found out about her detention and she would be ostracised, and this would affect her ability to reintegrate into China.
The Department came to the view that the Applicant had not raised any protection claims and the Applicant was advised that her data breach claims were unsuccessful on 20 August 2014. The Applicant then made a further written claim in relation to the data breach by her letter received by the Department on 27 August 2014, but once more the Department concluded that no protection claims had been made by the Applicant.
However, on 19 February 2015 the Applicant applied for a Protection (Class XA) (Subclass 866) visa (Protection visa) which was refused by a Delegate (Delegate) of the Minister on 7 December 2015. One of the claims considered and rejected by the Delegate was the Applicant’s claim “…that she feared persecution at the hands of the Chinese authorities due to the release of her personal information on the department’s website”.
The Applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the Delegate’s adverse decision on 5 January 2016. She appeared at a hearing before the Tribunal on 16 March 2016 to give evidence and present arguments. However, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant by its Decision Record of 18 March 2016. Once again, the Tribunal considered and rejected the Applicant’s claim to fear harm in China as a result of the data breach.
The Applicant then sought judicial review of the Tribunal’s decision in this Court, but his Honour Judge Smith dismissed her application on 13 September 2016 in AVB16 v Minister for Immigration [2016] FCCA 2325. Once again in that case the Applicant’s complaints about the data breach were at the forefront of her judicial review application, in which she was represented by Counsel experienced in migration matters.
The Applicant then appealed from the decision of Judge Smith to the Federal Court of Australia, where Markovic J dismissed the appeal in AVB16 v Minister for Immigration and Border Protection [2017] FCA 241 on 14 March 2017. The evidence led by the Minister at the hearing in this Court established that Ground 1 of the Notice of Appeal in the Federal Court from Judge Smith’s decision in this Court asserted that:
(1) The governing Minister has still not undertaken the normal departmental process as promised in the Secretary’s letter dated 12 March 2014, and as detailed in the High Court of Australia’s judgment in the matter of Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 in [52] to [55].
Particulars
(a) the Administrative Appeals Tribunal is not part of the normal departmental process; and
(b) the Administrative Appeals Tribunal does not exercise any power under section 48B, 195A or 417.
However, Ground 1 of this Notice of Appeal was abandoned in the Applicant’s Written Submissions signed by both Counsel appearing for the Applicant in the appeal before Markovic J. Finally, the High Court of Australia on 6 September 2017 refused to the Applicant special leave to appeal from the decision of Markovic J.
Grounds of Application in this Court
The Grounds relied upon by the Applicant in her Application filed in this Court 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 Migration Act 1958.
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 [time] 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 Migration Act 1958.
The Minister in his Response filed in this Court on 17 November 2017 sought dismissal of the Application on the basis that this Court lacked jurisdiction and that the proceeding was an abuse of process. That contention has been repeated in the Minister’s Written Submissions.
Incompetency
It is the first duty of a Court to be satisfied of its jurisdiction, which is its public authority to adjudicate: Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 183 [32] per Allsop CJ, Katzmann and Gleeson JJ. To say that a legal proceeding is incompetent is to say that the matter simply cannot proceed because the law does not allow it to: McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10 at [6] per Black CJ, Stone and Young JJ.
The Minister’s submission in substance is that this Court has no right or jurisdiction to entertain, hear and determine the Application because it lacks the authority to deal with it. In my view, that submission is correct.
However, lest I be wrong in coming to that view, which I will explain towards the end of the judgment, I also proceed to state my views and findings in relation to the substance of the matter.
Procedural fairness
I find as a fact on the evidence before me that the Minister has never personally decided to consider whether to exercise the powers conferred on him by ss.48B, 195A and 417 of the Act in respect of the Applicant. There is no evidence that an International Treaties Obligations Assessment in connection with the Applicant has ever occurred, commenced or been carried out. Further, and in any event, as the High Court stated in SZSSJ at 200 [54]:
[54]If the Minister has not made a personal procedural decision and considered whether to make a substantive decision, a process undertaken by the department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
Further, for more abundant caution, to the extent that the Applicant is to be taken as asserting that there was some duty on the Minister to consider exercising his powers under ss.48B, 195A or 417 in respect of the Applicant, this contention must fail: see Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636 at [50] per French CJ and Kiefel J, and SZSSJ at 200 [53] where the following was stated:
[53]First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
Finally, in relation to procedural fairness, the fact of the matter is that the Applicant has had a full opportunity to ventilate her complaints that the data breach entitled her to protection before the Delegate, the Tribunal, the Federal Circuit Court and the Federal Court of Australia: see generally in this respect SZWCH v Minister for Immigration [2016] FCA 1551 at [25] – [30] per Flick J and DZAEH v Minister for Immigration [2016] FCA 54 at [31] – [33] per Barker J.
Abuse of Process
In my view, the Application filed in this Court also constitutes an abuse of process. The Applicant could have and should have raised any complaints against the Minister and his Department at the de novo hearing conducted by the Tribunal on 16 March 2016. She did raise complaints about the effect of the data breach on her, and those claims have been rejected and found wanting up to the level of the High Court of Australia. However, the complaints that she now makes in her Application filed in this Court seem to have some difference from the data breach complaints, although she initially appears to have made similar complaints of the present nature in the Federal Court, but did not persevere with them and gave them up, obviously on the basis of informed legal advice.
In these circumstances, her present Application falls foul of the Anshun principle, which was described in Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at 517 – 518 [22] per French CJ, Bell, Gageler and Keane JJ in the following terms:
[22]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.
Further, the associated principle stated in Metwally vUniversity of Wollongong (1985) 60 ALR 68 at 71 is also, in my view, applicable. The Applicant is now seeking to litigate, or relitigate in this Court, claims that were, or could, or should have been made in the Tribunal, in this Court or in the Federal Court of Australia either as of right or by leave.
In Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560 at 562 [9] – [11] Gageler J said as follows:
[9] In University of Wollongong v Metwally (No 2) the High 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.
[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.
Jurisdiction of this Court
I earlier expressed my view on the merits of the case brought by the Applicant, lest I am wrong in my view that this Court does not have jurisdiction, as I have found. In my view, the Application is incompetent and this Court has no jurisdiction because in accordance with the decision of Judge Driver in SZURG v Minister for Immigration & Anor (No 2) [2017] FCCA 1772, there is no relevant decision or process in play for which judicial review by this Court could be invoked under s.476 of the Act.
Application in a Case filed in this Court on 25 October 2018
On 25 October 2018, the Minister filed an Application in a Case seeking summary dismissal of the Application. However, when the matter came before me on 16 November 2018, I expressed the view that this was a matter better heard on a final hearing basis and gave the hearing date of today for that purpose.
Conclusion
In my view, the Application is incompetent because this Court lacks any jurisdiction to hear it. If I am wrong in that view, the Applicant has failed to establish that she has been made the subject of any legal wrong by the Minister or his Department and its officers. Accordingly, the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 May 2019
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