Grass v Minister for Immigration
[2014] FCCA 2748
•28 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRASS v MINISTER FOR IMMIGRATION | [2014] FCCA 2748 |
| Catchwords: PRACTICE AND PROCEDURE – Abuse of process – proceeding raising question decided in earlier proceeding involving a different applicant but the same respondent. |
| Legislation: Administrative Decisions (Judicial Review) Act1977, ss.5, 6, 10, 11 Judiciary Act 1903, s.39B |
| Grass v Minister for Immigration & Citizenship (2013) 274 FLR 383 Australian Foreman Stevedores’ Association v Crone (1989) 20 FCR 377 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Jeffery & Katauskas Pty Limited v SST Consulting (2009) 239 CLR 75 Spalla v St George Motor Finance Ltd [2004] FCA 1699 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Martinez v Minister for Immigration & Citizenship (2009) 177 FCR 337 Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260 Simon v O’Gorman Pty Ltd (1979) 27 ALR 619 |
| Applicant: | JOHN RAYMOND GRASS |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2397 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 14 October 2014 |
| Date of Last Submission: | 14 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2014 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Pursuant to r.13.10 of the Federal Circuit Court Rules 2001, the applicant’s application for an extension of time to bring this proceeding will be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2397 of 2014
| JOHN RAYMOND GRASS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 August 2014 the applicant, Mr Grass, commenced this proceeding seeking relief under ss.5 and 6 of the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) in respect of the decision to cancel the approval of his wife’s Australian citizenship made by a delegate of the respondent (“Minister”) on 8 April 2013. Ostensibly, by virtue of s.11 of the ADJR Act, Mr Grass’s application was made out of time. Consequently, he sought an extension of time to bring this proceeding.
These reasons concern an application in a case filed by the Minister on 12 September 2014 seeking the dismissal of Mr Grass’s application for an extension of time.
Background facts
First cancellation of Mrs Grass’s citizenship approval
Corazon Grass, Mr Grass’s wife, is originally from the Philippines. In February 2009 she applied for Australian citizenship and her application was approved on 21 May 2009. However, on 5 July 2010, before Mrs Grass could make the pledge of commitment which was the final step in her attainment of citizenship, the approval of her citizenship application was cancelled by a delegate of the Minister (“first delegate”). On 8 July 2010 Mrs Grass sought review of the first delegate’s decision with the Administrative Appeals Tribunal (“AAT”). She later withdrew that application but subsequently sought to reinstate it and, in the alternative, sought an order for an extension of time within which to commence a new proceeding, an application which was refused by the AAT on 19 July 2011.
On 2 November 2012 Mrs Grass commenced a proceeding in this Court under the ADJR Act in respect of the cancellation decision of 5 July 2010. In the course of that proceeding Mrs Grass and the Minister agreed that that decision should be set aside but differed as to the date when such an order would take effect. On 13 February 2013 I set the first delegate’s decision aside with effect from 8 April 2013: Grass v Minister for Immigration & Citizenship (2013) 274 FLR 383.
Second cancellation of Mrs Grass’s citizenship approval
On 8 April 2013, the date on which the 5 July 2010 decision was set aside, Mrs Grass’s approval for Australian citizenship was again cancelled, although by a different delegate (“second delegate”).
In reaching her decision the second delegate noted that Mrs Grass’s date of birth was a central issue and found that while Mrs Grass had gone to great lengths to demonstrate that her date of birth was 13 November 1966, the evidence appeared to show that she was born on 13 November 1954. That evidence included confirmation from the Philippine authorities that they had a record of her birth date as 13 November 1954, a record of marriage certificate from 20 September 1979 when she was twenty-four years old and a marriage certificate from 17 October 1981 which recorded her birth date as 13 November 1954. The second delegate was satisfied that Mr Grass’s date of birth was 13 November 1954. The second delegate noted that Mrs Grass had first notified the Department in 2002 that her year of birth was 1966 and had provided dental records, statutory declarations, educational certificates and a series of personal assertions to support her claim that her date of birth was 13 November 1966. In relation to that evidence, the second delegate found that:
a)Mrs Grass’s acts of notifying the Department that her year of birth was 1966 did not make it a fact;
b)the birth certificate she had provided with a birth date of 16 November 1966 was of little value as it was a “late registration” in 2005. The second delegate also noted that it was not supported by the birth dates of Mrs Grass’s siblings; and
c)the documentation and assertions Mrs Grass claimed supported the fact that she was born in 1966 indicated that she had had two children and managed to complete high school at thirteen years of age. The second delegate therefore gave the documentation and assertions less weight. She noted that investigations indicated that Mrs Grass had graduated from a college in 1974, not 1984 as she claimed.
After considering the information before her, the second delegate concluded that Mrs Grass was not of good character because:
a)she had previously been an unlawful person in Australia for a period of approximately two years during which time she had also worked unlawfully in Australia;
b)she had demonstrated a pattern of false and deliberate misrepresentations concerning information relating to her identity, particularly her date of birth;
c)she had provided false information in numerous contexts to the Department and to other Australian government agencies, to her employers in Australia and to immigration authorities in the United Kingdom; and
d)she was in a bigamous relationship in breach of the Marriage Act 1961.
Other procedural history
On 3 April 2013, prior to the second cancellation of the approval of her citizenship application, Mrs Grass filed an application in the Federal Court under s.39B of the Judiciary Act 1903 seeking a declaration that she was entitled to make a pledge of Australian citizenship forthwith, a writ of certiorari to quash the order I had made on 13 February 2013 setting aside the first delegate’s decision with effect from 8 April 2013 and a writ of mandamus compelling the Minister to facilitate her taking the pledge within fourteen days.
Following the second delegate’s decision Mrs Grass twice amended her Federal Court application to seek orders that both of the delegates’ decisions be declared void and of no effect. On 23 April 2014 Buchanan J dismissed Mrs Grass’s application and on 14 May 2014 she lodged an appeal against that decision with the Full Court of the Federal Court seeking, amongst other things, a declaration that the second delegate’s decision of 8 April 2013 is void and of no effect. Judgment on that appeal is reserved.
On 16 April 2013 Mr Grass, in his own right, lodged an application with the AAT seeking review of the 8 April 2013 decision but he withdrew that application on 1 November 2013. As already noted, he commenced this proceeding on 26 August 2014 in respect of that 8 April 2013 decision.
The proceeding in this Court
Application and response
In his application commencing this proceeding Mr Grass stated that he was aggrieved by the second delegate’s decision because:
a)it prevented his wife from becoming an Australian citizen;
b)the second delegate had stated that he was in a bigamous relationship with his wife; and
c)it imposed a further financial/emotional burden in applying to the Court to have it set aside.
Mr Grass alleged:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision (s. 5(1)(a) of the Administrative Decisions (Judicial Review) Act, 1977), and the conduct related to the making of the decision (s. 6(1)(a) of the Administrative Decisions (Judicial Review) Act,1977).
Particulars
(a)The delegate failed to consider evidence or other material, being information and reports, including Three (3) School Principal Statutory Declarations, Character References, Four (4) Commonwealth Ombudsman's Reports, Four (4) Forensic Dental Reports, the Official Record of Mrs Corazon Grass’s Date of Birth (13/11/1966) with the Agency and the written notification from the Agencies FOI Director Ms Linda Rossiter of Mrs Grass’s legal entitlement and requirement to use that Date of Birth on all her dealings (including her Citizenship application) with the DIBP. The delegate failed to consider all of the evidence before her to the effect that the applicant was born in 1966.
(b)The decision was affected by a reasonable apprehension of bias.
(c)The delegate acted Ultra Vires (s.26(3)(4) of the Citizenship Act 2007)
Further Particulars
(i) The delegate failed to consider evidence or other material, that being information and Reports including Medical and Forensic Dental Reports which were before her and which conflicted with her conclusions, to the effect that the applicant was born in 1966.
(ii) In an email, the Assistant Director of Citizenship policy referred specifically to “another example of fraud that Mr and Mrs Grass are willing to perpetuate …”, and that a reasonable person would consider that this email may have been read by the delegate and may have influenced her decision.
(iii) Refer Chronology of events annexure A, which includes paragraph 38 detailing evidence of misconduct /bias in the decision making process which culminated in the cancellation of Mrs Corazon Grass’s Citizenship approval by Dana Parker on 8/4/2013.
The Minister responded to Mr Grass’s application alleging that it lacked reasonable prospects of success for the following reasons:
a)the first ground of the application sought impermissible merits review and failed to identify any failure on the part of the second delegate to take a mandatory, relevant consideration into account;
b)no evidence had been identified to support the second ground of the application, that a fair-minded lay observer, properly informed as to the nature of the decision and the matters in issue, might reasonably apprehend that the second delegate might not have brought an impartial mind to the decision to be made; and
c)the contention made in the third ground, that the second delegate acted ultra vires, was unparticularised and could not be sustained.
The Minister also alleged that the proceeding was frivolous, vexatious and/or an abuse of process in that:
a)it was the second proceeding by a related party in respect of the one subject. In that regard the Minister alleged that the second delegate’s decision of 8 April 2013 had already been the subject of an unsuccessful proceeding in the Federal Court before Buchanan J and was also the subject of the appeal referred to above in which the orders sought included the following:
That this Court DECLARE that the decision of the Minister’s delegate, made on 8 April 2013, purporting to cancel the approval of the Applicant’s application for Australian Citizenship is void and of no effect; and
b)on 17 April 2013 Mr Grass had sought merits review of the second delegate’s decision with the AAT but withdrew that application and the matter was dismissed. The Minister alleged that the commencement of that merits review proceeding amounted to an election by Mr Grass to treat the second delegate’s decision as lawful, albeit factually incorrect.
The Minister also invited the Court to refuse relief on a discretionary basis pursuant to s.10(2)(b)(ii) of the ADJR Act because there had been an adequate alternative remedy, namely Mr Grass’s discontinued AAT proceeding. The Minister alleged that the availability of merits review ought to preclude an application to the Court.
Application in a case
The application in a case filed by the Minister on 12 September 2014 sought an order pursuant to r.13.10 of the Court’s Rules that Mr Grass’s application for an extension of time be dismissed on the basis that the proposed substantive proceeding would be an abuse of process if allowed to proceed.
The Minister’s application in a case was supported by the affidavit of Katherine Nicole Hooper affirmed 12 September 2014. Ms Hooper deposed to the various interactions between Mr and Mrs Grass and the Minister’s department, the AAT, this Court and the Federal Court from 5 July 2010 to 28 August 2014. Annexed to Ms Hooper’s affidavit were copies of various applications, judgments and other documents relating to Mrs Grass’s endeavours to attain Australian citizenship. Amongst those documents were copies of Mrs Grass’s Notice of Appeal to the Full Court of the Federal Court from the judgment of Buchanan J and Mr Grass’s application to the AAT for review of the second delegate’s decision.
For the reasons which follow, the Minister has made out his contention and Mr Grass’s application for an extension of time to bring this proceeding will be dismissed.
Relevant legislation
The ADJR Act relevantly provides:
5 Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
…
11 Manner of making applications
(1)An application to the Federal Court or the Federal Circuit Court for an order of review:
…
(c)shall be lodged with a Registry of the court concerned … within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
…
(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision—the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
The Australian Citizenship Act 2007 relevantly provides:
25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
…
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
…
(iii) not of good character.
…
26 Pledge of commitment must be made
(1)A person must make a pledge of commitment to become an Australian citizen unless the person:
(a)is aged under 16 at the time the person made the application to become an Australian citizen; or
(b)has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, …
(2)…
Delayed making of pledge
(3)If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:
(a)a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or
(b)the person has been or may be charged with an offence under an Australian law.
(4)The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.
(5)The Minister may, by writing, revoke a determination.
(6)If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.
Rule 13.10 of the Court’s Rules relevantly provides:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
…
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Is Mr Grass’s application out of time?
As outlined earlier, s.11 of the ADJR Act requires applications under that Act to be filed within twenty-eight days of the day “on which a document setting out the terms of the decision is furnished to the applicant”. There was no evidence that the second delegate’s decision had ever been furnished to Mr Grass in the sense discussed in Australian Foreman Stevedores’ Association v Crone (1989) 20 FCR 377 at 384-385. However, as no point was taken, I shall assume that it was.
On 16 April 2013 Mr Grass filed with the AAT his application for review of the second delegate’s decision. It is therefore apparent that Mr Grass had been furnished with the second delegate’s decision no later than 16 April 2013. Therefore, as this proceeding was not commenced until 26 August 2014, it was brought out of time.
However, should I be wrong and Mr Grass was not furnished with a copy of the decision with the consequence that time has not yet begun to run, that would have no effect on the conclusion I have reached that the proposed substantive proceeding would be an abuse of process.
Submissions
Abuse of process
The Minister argued that the matters he had raised in his response to the initiating application set out above at [14] justified summary dismissal of the proceeding pursuant to r.13.10. The Minister’s argument was that the proceeding was an abuse of process because Mr and Mrs Grass had each sought the setting aside of the second delegate’s decision and so there was an identity of the material relief sought. The Minister noted that the two applicants are married and submitted that the present proceeding was brought by Mr Grass for reasons which included the seeking of a benefit for Mrs Grass.
The Minister argued that the grant of any or all of the relief sought in either proceeding had the likelihood of frustrating or rendering nugatory the grant of any or all the relief in the other proceeding. He submitted that the appropriate vehicle for the resolution of such matters was the appeal proceeding in the Full Court in which judgment is presently reserved.
The Minister conceded that the issues concerning the second delegate’s decision which Mr Grass raised in the present proceeding were wider than those considered by Buchanan J but submitted that the proceeding was nevertheless an abuse of process. He argued that the vice in the present proceeding was the risk of this Court making a finding inconsistent with the finding made by Buchanan J, albeit on arguments which were not made before his Honour. In this regard, the Minister submitted that, by analogy with Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, Mr Grass ought not be able to raise arguments in this proceeding which Mrs Grass had not raised before Buchanan J and so raise the possibility of there being inconsistent findings in respect of the same administrative decision.
The Minister submitted that the chronology of the events to which Ms Hooper had deposed supported his contention that the present proceeding was an abuse of process.
In his submissions Mr Glass provided his explanation for the matters referred to in the Minister’s chronology. He also addressed at length the merits of his judicial review application. However, he did not address in a substantive way the Minister’s assertion that the proceeding was an abuse of process by reason that Mrs Grass had already unsuccessfully sought an order setting aside the second delegate’s decision.
Election
The Minister referred to the fact that before commencing this proceeding Mr Grass had applied to the AAT for review of the second delegate’s decision. He submitted that Mr Grass had, by making application to the AAT, elected to treat the second delegate’s decision as valid although erroneous and by reason of this was not entitled to seek alternate relief in the Court. He submitted that in order for there to be an estoppel it was sufficient that an application to the AAT be made and that a determination by that tribunal was not necessary.
Consideration
Abuse of process
The categories of abuse of process are not closed. However,
This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. (Jeffery & Katauskas Pty Limited v SST Consulting (2009) 239 CLR 75 at 93-94 [28] per French CJ, Gummow, Hayne and Crennan JJ)
Even so, the power to dismiss an application as an abuse of process is to be exercised sparingly: Spalla v St George Motor Finance Ltd(No.6) [2004] FCA 1699 at [70].
In Rogers v The Queen (1994) 181 CLR 251 it was said:
… there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. (at 256 per Mason CJ)
Consequently, circumstances which have amounted to an abuse of process have included multiple or successive proceedings which caused or were likely to cause improper vexation or oppression, particularly in circumstances where an issue has been determined in earlier proceedings. The Chief Justice went on to say
Re-litigation in subsequent … proceedings of an issue already finally decided in earlier … proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. (at 256-257)
Generally these considerations have occurred in the context of the same parties, or their privies, relitigating an issue. However, it is possible that this aspect of the concept of abuse of process has a wider scope. In Walton v Gardiner (1993) 177 CLR 378 it was said
... 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. (at 393 per Mason CJ, Deane and Dawson JJ)
In Spalla v St George Motor Finance Ltd French J said:
The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. ...
…
The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is ‘a general public interest in the same issue not being litigated over again’. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. … (at [66]-[67])
It may therefore be that even if the parties to one proceeding are not identical to those in a subsequent proceeding, it would be an abuse of process to bring a claim or raise a defence in the latter which should have been raised in the former, if it was to be raised at all, the question being whether the later party was misusing or abusing the process of the Court by so doing: Spalla v St George Motor Finance Ltd at [68].
Mrs Grass’s Federal Court proceeding was an application under s.39B of the Judiciary Act. As recorded earlier, that application initially sought writs of certiorari and mandamus against the Minister and a declaration. The combined effect of the relief sought would have been, relevantly, that my judgment of 13 February 2013 would be quashed and Mrs Grass would be declared entitled to make a pledge of commitment.
As also noted earlier, Mrs Grass amended her application to, relevantly, seek a further declaration that the decision of the second delegate was void and of no effect. That claim was based on the following arguments:
a)if my decision of 13 February 2013 to delay the agreed setting aside of the first delegate’s decision until 8 April 2013 had been an erroneous exercise of jurisdiction, it had not been open to the second delegate to cancel the approval on 8 April 2013; and
b)the Minister’s power to defer the making of a pledge of commitment under s.26 of the Citizenship Act imposed a limit on his power to cancel an approval of citizenship. Mrs Grass argued that the only power which the Minister had to defer giving effect to the approval of 21 May 2009 was the power given to him by s.26(3) and (4) of the Citizenship Act and that if a decision to cancel was not made within the period there specified the Minister had no power to cancel the approval or to prevent a pledge of commitment being made. Mrs Grass argued that the second delegate’s decision was invalid because, by the time the first delegate’s decision was set aside, the period had expired and so she was entitled to become a citizen.
Justice Buchanan rejected Mrs Grass’s arguments in relation to the second delegate’s decision for the following reasons:
(a)the correctness of my decision as to when the decision of the first delegate was to be set aside was not relevant to whether it was open to the Minister to cancel the citizenship approval once the first delegate’s decision was set aside. The relevant fact was that Mrs Grass had not made the pledge of commitment before the second delegate made her decision; and
(b)(i) it was difficult to identify when the suggested time limit arising from the operation of s.26 of the Citizenship Act would expire but the issue was irrelevant because the Minister had not used the power provided by s.26 to defer the pledge of commitment and the citizenship approval had been cancelled because the second delegate decided that Mrs Grass was not of good character, not because the pledge had not been made by a particular time or at all. Further, s.26(3) did not limit the operation of s.25(2) and a cancellation of approval under s.25(2)(b) needed only to satisfy the conditions there stated, not those in s.26(3); and
(ii)section 25(1) made it clear that until a pledge was made it was open to the Minister to cancel an approval on any of the grounds stated in s.25(2)(b) and the error and subsequent behaviour of the first delegate did not mean that Mrs Grass had acquired an enforceable right to compel the Minister to allow her to become a citizen in spite of the findings which the second delegate made about her character.
In this proceeding Mr Grass sought relief under the ADJR Act, not under the Judiciary Act. As recited above, he alleged that the second delegate had breached the rules of natural justice in that she:
a)failed to consider certain material,
b)conducted herself such as to ground a reasonable apprehension of bias; and
c)acted beyond her authority (based on limitations imposed by s.26(3) and (4) of the Citizenship Act).
Mrs Grass could have sought relief under the Judiciary Act based on the same matters. In fact she did seek relief under that Act in relation to the matter referred to in (c) above and so it is convenient to consider it first.
The question whether the second delegate’s power to cancel the citizenship approval because of the alleged operation of s.26 of the Citizenship Act was, with respect, fully considered by Buchanan J and decided adversely to Mrs Grass. Plainly, Mr Grass seeks to reopen that issue and obtain a different result. Justice Buchanan’s judgment is a final judgment of the Federal Court and, subject to the Full Court’s reserved judgment on the appeal, to be accepted as incontrovertibly correct and binding as to the parties to that proceeding: Rogers v The Queen at 273, 279. The Minister should not be troubled to argue this matter again at the primary level. Nor should his Honour’s judgment be subject to collateral attack, particularly as the issue is the subject of an appeal. Although there is no res judicata or issue estoppel which binds Mr Grass, vexing the Minister with the same issue for a second time at the primary level would be an abuse of process. The risk, albeit small, that this Court might form, and consider itself free to express, a view different from his Honour’s provides an additional basis for that conclusion. Having regard to the need to maintain confidence in the administration of justice, it is not appropriate that another primary court, particularly one inferior to the Federal Court, should be invited to differ from his Honour and generate a conflicting decision on the very issue which his Honour has decided.
The other two matters which Mr Grass seeks to raise engage different considerations. Neither was agitated by Mrs Grass in her Judiciary Act proceeding although, as I have said, both could have been. They seem to have been foreshadowed in the application Mr Grass made to the AAT on 16 April 2013 in which he stated that he sought review of the second delegate’s decision on the grounds that:
1)… the decision maker has exceeded her power and the decision is Ultra Vires section 26 of the Citizenship Act 2007.
2)The decision is wrong.
3)The decision maker failed to consider relevant considerations.
4)The decision maker considered irrelevant considerations.
In a letter annexed to that application Mr Grass said, amongst other things:
I, John Grass … apply for standing before the AAT under Sec 27 of the AAT Act on the basis that since 2005 I have been subjected to significant emotional and financial stress due to defending the continued unfounded allegations and statements by DIAC officers in decisions made by DIAC decision makers including the cancellation of Citizenship approval decision of the 8/4/2013. …
Corazon Grass’s health has been affected to the extent that she would be disadvantaged by having to defend the 8/4/2013 cancellation decision … . As i [sic] have handled all of Corazon Grass’s dealing with DIAC since 2002 and [am] very familiar with all aspects of the case, Corazon Grass would be disadvantaged having to represent herself in a review of this decision at the AAT. …
I respectfully request serious consideration by the AAT of my request to be approved as the sole applicant for review of this decision due to the circumstances outlined above.
Secondly if there is some legal barrier to my request then I apply as joint applicant for a review of the decision and seek leave of the tribunal to represent Corazon Grass in this matter.
In his affidavit filed in support of his application initiating this proceeding Mr Grass deposed that he had commenced his AAT proceeding within twenty-eight days of the second delegate’s decision but:
The AAT and Commonwealth Ombudsman have advised my complaint related to misconduct/bias by the decision maker and failing to consider relevant considerations requires Judicial Review of the decision.
Plainly, this proceeding is intended by Mr Grass to canvass the issues which he originally intended to raise with the AAT.
Given that Mr Grass is married to Mrs Grass and said in his letter to the AAT that he had handled all aspects of her case, it would be unreal to treat them as parties at arm’s length pursuing individual and discrete goals, particularly as they both seek to set aside the second delegate’s decision. For instance, notwithstanding that Mr Grass claimed to be, in his own right, a person affected by the second delegate’s decision and thus with standing to apply to the AAT, it is apparent that, at least in part, he also brought the AAT proceeding as a proxy for his wife.
According to the cover sheet of Buchanan J’s reasons for judgment, the Federal Court matter was heard on 31 March 2014, i.e. after Mr Grass’s AAT proceeding was withdrawn but before this matter was commenced. The matters which Mr Grass first raised in his AAT application and now raises in the present proceeding could have been argued by Mrs Grass before Buchanan J. That they were not is not sufficiently explained or justified by the fact that Mr and Mrs Grass are individual litigants. It is plain that they pursue a common cause, as one would expect, and so they should not, in effect, split what is really one case into different cases and pursue different aspects of the same matter in different proceedings.
To vex the Minister with multiple actions raising different allegations in respect of the same issue, namely whether the second delegate’s decision should be set aside, would be, in these particular circumstances, an abuse of process.
Election
The Minister relied on what Rares J had said Martinez v Minister for Immigration & Citizenship (2009) 177 FCR 337 at 346 [20] as support for his submission that Mr Grass’s AAT application amounted to a binding election which prevented him initiating proceedings in this Court in respect of the second delegate’s decision. In Martinez, the applicant had sought and obtained review by the AAT of a ministerial delegate’s decision to cancel his visa. Justice Rares said:
A long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error … The tribunal has power to cure a defect in the delegate’s decision once the tribunal’s jurisdiction has been invoked by an application for review … A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal … (at 346 [20]) (references omitted)
The Minister submitted that Rares J was saying there that a party would be estopped from bringing court proceedings for review of an administrative decision if the party had previously commenced proceedings in the AAT in respect of the same decision. However, I do not agree that his Honour was referring to anything more than the situation where a primary decision is superseded by a review decision. Also, his Honour spoke of a party exercising a right to have a decision reviewed by a second administrative body, not to a party’s right to apply for such a review.
The Minister’s argument was not much developed beyond the citation of Martinez and, in particular did not traverse authorities such as Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260 and Simon v O’Gorman Pty Ltd (1979) 27 ALR 619 at 637-639 per Lockhart J. Those cases hold that taking a matter to judgment can amount to an binding election in respect of other rights but do not support the proposition that simply commencing a proceeding has that effect unless there is full knowledge on the part of the electing party, on which question no evidence was adduced in the present case. Further, no authorities were cited which supported the idea that a party’s decision to pursue one of two inconsistent administrative law remedies amounted to a binding election to abandon the other remedy.
I am not persuaded that Mr Grass’s filing of an application in the AAT concerning the second delegate’s decision, which he did not pursue to a final outcome, amounted to an informed election between inconsistent rights and that the substantive claims he wished to make in the present proceeding were thereby rendered unmaintainable.
Conclusion
If Mr Grass were to be permitted to commence this proceeding out of time the application he would wish to press would be an abuse of process.
Consequently, pursuant to r.13.10 of the Court’s Rules, Mr Grass’s application for an extension of time to bring this proceeding will be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 28 November 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Abuse of Process
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Res Judicata
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Standing
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