Ejm17 v Minister for Immigration - [2019] FCCA 1365

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
AVB16 v Minister for Immigration and Border Protection [2017] FCA 241
DZAEH v Minister for Immigration [2016] FCA 54
McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10
Metwally vUniversity of Wollongong (1985) 60 ALR 68

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636
SZWCH v Minister for Immigration [2016] FCA 1551
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174
Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1365
Decision Date: 26 April 2019

CaseChat Overview and Summary

The applicant, Ejm17, sought judicial review of a decision by the Minister for Immigration, concerning the Minister's alleged failure to exercise non-compellable discretionary powers under sections 48B, 195A, and/or 417 of the *Migration Act 1958* (Cth). The applicant claimed to fear harm arising from a 'data breach', the details of which had previously been considered by this Court, the Federal Court of Australia, and the High Court of Australia in separate proceedings.

The central legal issues before the Court were whether the application for judicial review was competent, whether it constituted an abuse of process and was barred by *Anshun* estoppel, and whether the applicant had identified any jurisdictional error.

Dowdy J found the application to be incompetent as no relevant decision or process had been made or commenced that would allow for judicial review by the Court. Furthermore, the Court determined that the application was an abuse of process and was barred by *Anshun* estoppel, given the prior litigation concerning the applicant's claims. In addition, the applicant failed to identify any jurisdictional error. Consequently, the application for judicial review was dismissed.

Orders