Robertson and Decision-Maker (Practice and Procedure)

Case [2025] ARTA 22

Robertson and Decision-Maker (Practice and Procedure) [2025] ARTA 22 (9 January 2025)

Applicants:Bruce Campbell Robertson

Respondent:  Decision-Maker

Tribunal Numbers:              2024/10661;

2024/10673;

2024/11158

Tribunal:General Member J Papalia

Place:Perth

Date:9 January 2025

Decision:The applications in 2024/10661, 2024/10673, 2024/11158 are each dismissed under s 101(1) of the ART Act. The Tribunal further orders under s 101(2) of the ART Act that the Applicant is prohibited from making a subsequent application for review in respect of the events of 31 October 2024 at Perth International Airport or his dispute with McDonald’s Australia Limited, without leave of the Tribunal.

.................[SGD].......................................................

General Member J Papalia

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – whether application frivolous, vexatious, misconceived or lacking in substance – whether has no reasonable prospects of success – whether an abuse of process – interaction at Perth Airport – dispute with McDonald’s Australia Limited – no reviewable decision – abuse of process – applications dismissed – prohibited from making subsequent application without leave

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) (repealed), s 42B

Administrative Review Tribunal Act 2024 (Cth), ss 12, 13, 101(1), 101(2)

Anti-Discrimination Act 1991 (QLD)

Criminal Code Act 1995 (Cth), s 474.17

Customs Act 1901 (Cth), pt XII, ss 243AB(3), 243X, 269SHA, 273GA

Freedom of Information Act 1982 (Cth), s 57A

Migration Act 1958 (Cth), ss 134, 166(1)(b), 172(4), 306, 311F, 347(1), 474, 500

Privacy Act 1988 (Cth), s 96(1)

State Administrative Tribunal Act 2004 (WA), s 47

CASES

Frigger v Parkyn [2021] FCA 224

Plaintiff S157/2002 v Commonwealth [2003] HCA 2;(2003) 211 CLR 476

Re Ellis and Director-General of the Department of Transport [2011] WASAT 142

Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213

Re Walthen and Deputy Commissioner of Taxation [2008] AATA 223; (2008) 71 ATR 342

Re Young [2020] HCA 13; (2020) 94 ALJR 448

Robertson v McDonald’s Australia Limited [2021] QIRC 344

Robertson v McDonald’s Australia Ltd (No 2) [2022] ICQ 011; (2022) 316 IR 237

Robertson v McDonald’s Australia (No 8) [2023] QIRC 192

Robertson v McDonald’s Australia Ltd (No 3) [2024] ICQ 009

Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55

SECONDARY MATERIALS

Migration Regulations 1994 (Cth), regs 3.01(3), 3.08

Rules of the Supreme Court 1971 (WA), r 5

Statement of Reasons

INTRODUCTION

  1. The Applicant is an Australian citizen. He appears to be aggrieved by events that unfolded at Perth International Airport on 31 October 2024 and by an employment dispute that was dealt with by the Queensland Human Rights Commission and the Queensland Industrial Relations Commission. He has filed three applications for review with the Administrative Review Tribunal (Tribunal) in respect of these issues and has not engaged with the Tribunal’s Registry’s (Registry) queries regarding the jurisdictional basis for his applications in an appropriate manner. For the following reasons, the Tribunal has determined that the applications should be dismissed because they are misconceived and are…

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Details
AGLC
Robertson and Decision-Maker (Practice and Procedure) [2025] ARTA 22
Case
[2025] ARTA 22
Decision Date

CaseChat Overview and Summary

The case of Robertson and Decision-Maker (Practice and Procedure) involved an applicant who had made multiple applications to the Tribunal, primarily seeking review of certain decisions made by the Australian Border Force (ABF) officers. These applications related to events that occurred on 31 October 2024 at Perth International Airport and his ongoing dispute with McDonald’s Australia Limited. The Tribunal found that the applicant’s correspondence with the Tribunal, conducted via telephone and email, was inappropriate and potentially unlawful, leading to a decision to prohibit the applicant from lodging further applications without leave.

The legal issues before the court were whether the Tribunal had jurisdiction to review the decisions made by the ABF officers under the Migration Act 1958 and the Customs Act 1901, as well as whether the Tribunal had jurisdiction to review decisions made under the Privacy Act 1988 in relation to the applicant's complaints against McDonald’s Australia Limited. The court also needed to determine if the applicant’s conduct warranted a prohibition on future applications without leave.

The court held that the Tribunal did not have jurisdiction to review the decisions made by ABF officers under the Migration Act and the Customs Act, as these decisions were not subject to merits review by the Tribunal. Furthermore, the court found that the Tribunal did not have jurisdiction to review the decisions made by the Information Commissioner under the Freedom of Information Act 1982 in relation to the Privacy Act complaints. The court also concluded that the applicant's conduct in contacting the Tribunal via inappropriate means justified the prohibition on future applications without leave.

As a result, the applications were dismissed, and the applicant was prohibited from making further applications without leave of the Tribunal. The Tribunal found that the applicant's conduct warranted this prohibition to ensure the proper functioning of the review process and to prevent the misuse of the Tribunal's resources.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the nature of the Applicant’s correspondence with the Tribunal by telephone and email, which the Tribunal notes are inappropriate and potentially unlawful,[10] the Tribunal has decided that he should be prohibited from lodging a further application in relation to the same subject matter without leave of the Tribunal. [10] See Criminal Code Act 1995 (Cth), s 474.17. DECISION For the above reasons, the applications in 2024/10661, 2024/10673, 2024/11158 are each dismissed under s 101(1) of the ART Act. The Tribunal further orders under s 101(2) of the ART Act that the Applicant is prohibited from making a subsequent application for review in respect of the events of 31 October 2024 at Perth International Airport or his dispute with McDonald’s Australia Limited, without leave of the Tribunal.

Ratio Decidendi

Legal Principle Established

Section 166(1)(b) of the Migration Act 1958 (Cth) (Migration Act) relevantly requires persons (whether Australian citizen or non-citizen) entering Australia to provide ABF officers working at Australia’s ports with ‘any information’ required by the Migration Act or the Migration Regulations 1994 (Cth) (Migration Regulations). This includes that the passenger must complete and provide an incoming passenger card.[4] Failure to complete and provide an incoming passenger card is a strict liability offence under reg 3.08 of the Migration Regulations. [4] Migration Regulations, reg 3.01(3). Australian citizens who do not complete an incoming passenger card bypass immigration clearance when they leave the port without complying with the requirement to provide the information to a clearance officer.[5][5] Migration Act, s 172(4). The Migration Act confers merits review rights to this Tribunal in respect of specific decisions made under the Act, namely those relating to visa decision-making and the registration of and disciplining of migration agents.[6] Decisions otherwise made under the Migration Act cannot be reviewed in any court or tribunal save for on judicial review for jurisdictional error or by a collateral challenge in tort.[7] [6] See Migration Act, ss 136, 306, 311F, 347(1), 500. [7] See Migration Act, s 474; Plaintiff S157/2002 v Commonwealth [2003] HCA 2;(2003) 211 CLR 476; Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [7]. Part XII of the Customs Act provides ABF officers at Australia’s ports with various detention and search powers. Like the Migration Act, some, but not all, decisions made under this Act are reviewable by the Tribunal.[8] [8] See Customs Act, ss 269SHA, 273GA. To the extent that the Applicant has provided the Tribunal with an FOI decision made by the AFP and evidence of documents released by the AFP and the ABF under the FOI Act, these decisions are not reviewable by the Tribunal other than under s 57A of the FOI Act, which relevantly involves decisions made by the Information Commissioner. Detention and search decisions made under either the Migration Act or the Customs Act are clearly not reviewable by this Tribunal. Any decisions to prosecute the Applicant for offences against either Act would also not be reviewable. Accordingly, the applications in 2024/10661 and 2024/10673 are plainly unsustainable and shall be dismissed. The McDonald’s Privacy Complaint In the third application, the Applicant refers to current legal action that he has with McDonald’s Australia Limited and complaints purportedly made to the Information Commissioner under the Privacy Act 1988 (Cth) (Privacy Act) regarding the same. A quick search on indicates that the Applicant has a long-running dispute in Queensland about this issue, commencing with a complaint made under the Anti-Discrimination Act 1991 (QLD) to the Queensland Human Rights Commission and which was subsequently referred to the Queensland Industrial Relations Commission and then appealed to the Industrial Court of Queensland.[9] [9] See Robertson v McDonald’s Australia Limited [2021] QIRC 344; Robertson v McDonald’s Australia Ltd (No 2) [2022] ICQ 011; (2022) 316 IR 237; Robertson v McDonald’s Australia (No 8) [2023] QIRC 192; Robertson v McDonald’s Australia Ltd (No 3) [2024] ICQ 009.