SZOVO v Minister for Immigration
[2017] FCCA 1652
•19 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZOVO v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1652 |
| Catchwords: MIGRATION – Interlocutory applications by applicant for a stay or adjournment – release from detention – discovery. |
| Legislation: Federal Circuit Court Act 1999 (Cth), ss.3, 15(a), 45 Migration Act 1958 (Cth), ss.189, 196 |
| Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 |
| Applicant: | SZOVO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 315 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2017 |
REPRESENTATION
| The Applicant: | In Person (via videolink) |
| Counsel for the Respondents: | Mr Bevan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The First Respondent’s application for orders under Rule 17.02 of the Federal Circuit Court Rules 2001 (Cth) is refused.
The Applicant’s application for a stay and/or for an adjournment is refused.
The Applicant’s application for interlocutory orders in the application of 2 February 2017 is refused.
The Applicant’s application for an order restraining the Minister, his servants or agents from removing him from Australia is refused.
The matter be adjourned to a date to be fixed for determination of the issues of:
(a)the jurisdiction of the Court in relation to the decisions of which the application of 2 February 2017 seeks review, other than the Administrative Appeals Tribunal decision of 9 January 2017; and
(b)the First Respondent’s Notice of Objection to the subpoena issued on 2 February 2017; and
(c)any request by the Applicant to issue further subpoenas and/or any application for discovery.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 315 of 2017
| SZOVO |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 2 February 2017 the Applicant, who is in immigration detention on Christmas Island, filed an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 9 January 2017 affirming a decision not to grant him a Bridging E (Class WE) visa.
In addition, he sought review of what were said to be decisions made by compliance officers of the Department of Immigration and Border Protection (the Department) in March 2013 and December 2016 and a future decision or other action by the Minister or an officer under the Migration Act 1958 (Cth) (the Act) described as “deportation of myself with ascertaining that I signed removal papers under duress in detention” (sic).
The Applicant sought interlocutory orders as follows (errors in original):
1. habeas corpus – so as to allow my physical presences.
2. to be let out of immigration detention to visit law library.
3. order for discovery and for respondents to honour subpoena.
Under the heading “Final” orders sought, the Applicant also sought an order that he not be “deported on & until these matters are heard (sic)”. This amounts to an application for an interlocutory order and I have considered it on that basis.
As discussed below, the Applicant also made an oral application for a “stay” of these proceedings.
There are six substantive grounds in the application, five of which take issue with aspects of the Tribunal decision and procedures.
In an affidavit accompanying his application the Applicant recounted, in some detail, aspects of past judicial review proceedings in which he has been involved; expressed concern about his inability to obtain specialist medical treatment under the Workers Compensation Act 1985 (NSW); and made submissions about his intention to depart Australia and to meet outstanding debts to the Commonwealth. He also complained of a denial of procedural fairness (and raised other issues) in relation to the refusal of his bridging visa.
On the day he filed his application the Applicant also issued a subpoena to the Department seeking production of documents dating back to 2005.
The First Respondent filed a Notice of Objection to the subpoena, a Response, a Courtbook in relation to the Tribunal decision and an Application in a Case. In addition to seeking an order setting aside the subpoena (insofar as objection had been taken in the Notice of Objection) the First Respondent sought an order that the Court determine the following question separately from and prior to all other questions:
Whether the decision of the second respondent made on 9 January 2017 to affirm the decision of the delegate of the first respondent not to grant the applicant a Bridging E (Class WE) (Subclass 050) visa is affected by jurisdictional error insofar as the second respondent found that the applicant did not satisfy the criteria in:
a) clause 050.212(2); or
b) clause 050.212(3),
in clause 050 in Schedule 2 of the Migrations Regulations 1994.
This judgment concerns the Applicant’s application for interlocutory orders and a stay or adjournment and also the First Respondent’s Application in a Case filed on 22 February 2017.
When the matter first came before me there was no interpreter in attendance. The Registry was unable to provide an interpreter at short notice in the Applicant’s requested language of Yoruba.
The Applicant appeared to have a good grasp of the English language, but he indicated that he would be assisted by the presence of an interpreter. I told him that I would not determine any of the issues raised by either party in the absence of an interpreter and would adjourn until a date on which an interpreter was available.
Nonetheless the Applicant canvassed a number of concerns during the first directions hearing. He explained that he foreshadowed making an application to the Court in relation to a discrimination matter, apparently before the Human Rights Commission, and suggested that this should be consolidated with these proceedings. He indicated that he may wish to issue more than five subpoenas. He submitted that the matters he wished to raise should be considered by the High Court. He also raised general concerns about earlier proceedings before the Administrative Appeals Tribunal and in this court.
The Applicant also stated that he had an application pending with the Commonwealth Attorney-General’s office seeking legal or financial assistance. He was not able to provide further information about that application, but he requested a stay of these proceedings, at least until it was decided. In essence he appeared to be seeking an adjournment.
Counsel for the Minister indicated that his instructing solicitors would make inquiries about the legal assistance application to which the Applicant referred.
The matter was adjourned to 23 March 2017 for a hearing of the Applicant’s applications for a stay or adjournment and for interlocutory orders, the First Respondent’s Application in a Case, and otherwise for consideration of procedural issues. In these circumstances, I excused the First Respondent and the Department from compliance with the subpoena until further order.
When the matter next came before the Court, the Applicant, who appeared by videolink, had the assistance of an interpreter who was present in the courtroom.
Counsel for the First Respondent provided the Court with a “Note” outlining the First Respondent’s position in relation to the issues to be considered, a copy of which had been sent to the Applicant.
The Applicant had sent a written “response” to the First Respondent’s “Note”. A copy was provided to the Court. It appeared, however, that other documents that the Applicant had filed, or tried to file, had not been received by the Court. During the hearing the Registry received and accepted for filing an Application in a Case and a supporting affidavit filed by the Applicant. In these documents the Applicant repeated his applications for orders restraining his deportation, production of documents sought in the subpoena and access to library and other facilities in the detention centre. The supporting affidavit was a copy (absent exhibits) of his affidavit filed on 2 February 2017. Insofar as these documents address issues relevant to the applications for a stay and/or interlocutory orders and/or the First Respondent’s Application in a Case, they are considered below.
The Applicant was given the opportunity to make both oral and further post-hearing written submissions on the matters to be determined by the Court.
After the hearing the First Respondent filed an Amended Note incorporating corrections and clarifications made by Counsel in the course of the hearing. The Applicant filed a bundle of documents and submissions.
The Applicant’s application for a stay
The First Respondent advised the Court that inquiries had been made with the Attorney-General’s Office and that, as was apparent from a document in the Courtbook, a senior case officer in the legal assistance branch of the Attorney-General’s Department had emailed the Applicant on 18 December 2016 in relation to his application for financial assistance under the Special Circumstances Scheme as follows:
Dear Mr [Applicant],
Thank you for your application for financial assistance under the Special Circumstance Scheme.
The Special Circumstance scheme is to provide assistance to people in special circumstances with legal costs of an Australian or overseas proceedings. Assistance under this scheme will only be granted in the most exceptional of circumstances. This may include the following:
where no other scheme of legal financial assistance applies, but there is a moral obligation on the Commonwealth to make a grant ∙ where a statutory scheme of legal financial assistance applies, but produces an unintended, anomalous, inequitable or otherwise unacceptable result.
On review on your application there is insufficient information to complete an assessment. You have indicated that you are applying under the special circumstances scheme, however, you have not specified why you are applying for legal financial assistance and the any (sic) legal requirements, including expected legal costs and your eligibility under this scheme regarding exceptional circumstances.
Your application is considered incomplete and no further action will be taken until we receive the above information.
The Applicant maintained his application for a stay of these proceedings on the basis of his outstanding application for financial assistance under the Special Circumstances Scheme, notwithstanding that at the time of the hearing there was no evidence that he had responded to the advice of 18 December 2016 from the Attorney-General’s Department that no further action would be taken until further specified information was received.
After the hearing the Applicant submitted what he described as the latest correspondence between himself and the Attorney-General’s office. This consisted of what appeared to be a copy of part of a faxed letter from the Applicant to the Attorney-General’s Office, Legal Assistance Scheme which had been sent on 28 March 2017 (after the hearing). The Applicant stated in this letter that his circumstances, in particular his detention and status as a self-represented litigant, dictated the need for expert services. He claimed he needed the help of an expert such as a barrister or solicitor and also a psychologist to evaluate and guide him to present his arguments.
Somewhat confusingly, in his post-hearing submission the Applicant also stated that he “submit[ted] to the 1st Respondents arguments on the stay of proceedings”. However he asked the Court to ask the registry to contact the Attorney-General’s Department about the status of his application.
It is not appropriate for the Court or the registry to make such inquiries. It is for the parties to put evidence before the Court.
It is not in dispute that the Court has power to stay proceedings in a proper case (see generally s.15(a) of the Federal Circuit Court Act 1999 (Cth) and the discussion in Parr v Patrick Finnegan & Anor [2013] FCCA 512).
However, as the Applicant now appears to recognise, it is not in the interests of the parties or the administration of justice to order an indefinite stay on proceedings commenced by an applicant in detention seeking review (among other things) of a Tribunal decision affirming a decision to refuse to grant him a bridging visa. Nor is it appropriate to defer consideration of his application for interlocutory relief.
Insofar as the Applicant’s application may be seen as an application for an adjournment, I am not satisfied that these proceedings should be adjourned pending determination of the Applicant’s application for assistance under the Special Circumstances Scheme, or otherwise. I have taken into account the need to balance the interests of the parties and the administration of justice and also case management considerations (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27). I have had regard to the nature of these proceedings, the time this matter has been before the Court, the absence of any evidence of a response by the Applicant to the Department’s letter of 18 December 2016 until 28 March 2017, and the nature of that response. I also note that the Applicant has now had ample time to seek legal assistance. Insofar as he maintains an application for a stay or an adjournment it should be refused.
Applications in relation to release from detention and to restrain removal
In his application the Applicant sought interlocutory orders expressed as “Habeas corpus – so as to allow my physical presences” and “to be let out of immigration detention to visit law library”. He also sought an order that he not be deported until these proceedings were determined.
The Applicant submitted generally that there were various types of habeas corpus. He referred to the original jurisdiction of the High Court and to Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51. That case concerned an application to the High Court for an extension of time under s.486A of the Act and is not of relevance to these proceedings.
The Applicant seeks release from detention. However as the First Respondent submitted, even if the Court has jurisdiction in this respect (which was not conceded), the Court does not have power to order the release of an unlawful non-citizen in detention under s.189 of the Act (see ss.196(2) and (3) of the Act). There is no evidence that the Applicant is a lawful non-citizen or that he has been granted a visa or that there is any other basis on which such an order could or should be made (see Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] per McHugh J, [221]-[223] per Hayne J, [297]-[300] per Callinan J and [303] per Heydon J; and Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391; [2013] FCA 1264 at [38]-[39] per McKerracher J).
On the evidence before the Court I am not satisfied I have power to make an order releasing the Applicant from detention, whether on a permanent basis or for the purpose of using library facilities. However if what the Applicant seeks is an order that requires his presence in court for a hearing, as the First Respondent conceded the Court has power to make such an order. I would consider any application seeking such order.
The Applicant expressed concern that he may be deported before the conclusion of the proceedings and sought an order to restrain any such removal. Insofar as he seeks a permanent order there is no basis for any such order. Counsel for the First Respondent informed the Court that the present intention was that officers of the Department would not remove the Applicant from Australia until the conclusion of these judicial review proceedings and that if this intention were to change the Minister would give reasonable notice to the Applicant. On this basis it was submitted that there was no serious or substantial risk that the Applicant would be removed (see VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1022 at [11] per Heery J). The First Respondent opposed any application for an interlocutory injunction restraining removal of the Applicant.
In VQAB the Minister declined to give an undertaking not to remove an applicant in detention from Australia pending determination of judicial review proceedings but, as in this case, Counsel for the Minister indicated that the Minister had no present intention to remove the applicant.
As Heerey J pointed out in VQAB at [11], for the Court to grant an interlocutory injunction restraining removal of an applicant from Australia it must be satisfied that there is a serious or substantial risk that the applicant would be removed before the hearing of his or her review application. His Honour accepted and treated “seriously” the statement to the Court that there was no “intention” on the part of the Minister to remove the applicant in VQAB before the conclusion of the proceedings. Accordingly, Heerey J was not satisfied that there was a serious or substantial risk in that respect such as to support the application for an interlocutory injunction.
For the same reasons, I am not satisfied that there is a serious or substantial risk that the Applicant would be removed from Australia before the conclusion of these judicial review proceedings. However, as in VQAB (at [12]), I would expect that if there were to be any change in the Minister’s stated intention, the Applicant would be given reasonable notice. On this basis the application for an interlocutory injunction to restrain removal of the Applicant from Australia pending determination of these proceedings should be refused.
Discovery and Subpoena Issues
The Applicant sought an order for discovery and that the Department honour the issued subpoena.
Under s.45 of the Federal Circuit Court Australia Act 1999 (Cth) discovery is not allowed unless the Court or a judge declares that it is appropriate in the interests of the administration of justice to allow discovery. The Applicant has not explained the extent or nature of discovery sought (beyond a general reference to all his records) or how discovery would be likely to contribute to the fair and expeditious conduct of the proceedings. The Applicant seeks review of four decisions. The First Respondent expressed the view that the only decision properly before the Court was the Tribunal decision in relation to the application for a Bridging visa. As the First Respondent submitted, in circumstances where a Courtbook had been filed and served in relation to review of the Tribunal decision, the question of the need for any further evidence and document production should be considered after the extent of the jurisdiction of the Court is determined. At this stage I am not satisfied that it is appropriate in the interests of the administration of justice to allow discovery as sought by the Applicant. However this issue may be revisited after determination of the jurisdiction of the Court.
The Applicant’s application that the Department “honour” the subpoena is addressed below in the context of the First Respondent’s proposal that his Notice of Objection to the subpoena be determined as one of the proposed separate questions.
The Separate Questions Issue
The separate questions ultimately proposed by the First Respondent were as follows:
(a) Question 1:
Does the Court have jurisdiction in relation to the decision made by an officer on 22 December 2016?
(b) Question 2:
In relation to the allegation concerning a future decision in relation to removal:
(i) Whether there is a decision within the meaning of section 474(2) and 474(3) (including but not limited to para (h));
(ii) Does the Court have jurisdiction?
(c) Question 3:
Whether the decision of the second respondent made on 9 January 2017 to affirm the decision of the delegate of the first respondent not to grant the applicant a Bridging E (Class WE)(Subclass 050) visa is affected by jurisdictional error insofar as the second respondent found that the applicant did not satisfy the criterion in;
(i) clause 050.212(2); or
(ii) clause 050.212(3)
in clause 050 of Schedule 2 of the Migration Regulations 1994.
(d) Question 4:
Whether the decision of the second respondent made on 9 January 2017 to affirm the decision of the delegate of the first respondent not to grant the applicant a Bridging E (Class WE)(Subclass 050) visa is affected by jurisdictional error by:
(i) a breach of Part 5 of the Migration Act.
(e) Question 5:
Whether the notice of objection (filed 14 February 2017) to the subpoena for production issued 1 February 2017 should be dismissed or upheld?
It was suggested by the First Respondent that if the Court did not agree with the proposed determination of separate questions, then the ordinary directions for the conduct of the proceedings to a final hearing should be made.
The First Respondent addressed the issue of separate questions in oral submissions and in an Amended Note so that the Applicant had an opportunity to respond further in post-hearing submissions. Otherwise the Minister consented to the determination of these procedural issues on the papers. The Applicant provided post-hearing submissions and other documents.
In essence, the First Respondent submitted that the Court could be satisfied that determination of the points identified in the proposed separate questions would be a complete answer to the application for review of the Tribunal decision in circumstances where it was contended that the only decision properly before the Court was the Tribunal decision in relation to the bridging visa application. It was suggested that jurisdictional issues and the Notice of Objection to the Applicant’s subpoena could also be determined as part of the separate questions procedure.
For the reasons that follow I am not satisfied that it is appropriate to proceed by way of determination of separate questions, either as originally sought by the First Respondent or on the expanded basis proposed in the Amended Note.
Counsel for the First Respondent explained that the argument that the matter should proceed by way of determination of proposed separate questions 3 and 4 reflected the fact that there were two bases for the Tribunal’s decision. The first basis was said to be the Tribunal’s conclusion, in particular at [22] and [30], that it was not satisfied that the Applicant met applicable criteria for a bridging visa in cl.050.212 in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations). Relevantly, these criteria were that at the time of the application the Applicant was making, or was the subject of, acceptable arrangements to depart Australia as required by cl.050.212(2), and that the Applicant had made, in Australia, a valid application for a substantive visa of a kind that could be granted if he was in Australia which had not been finally determined, or that the Minister (or, in these circumstances, the Tribunal) was satisfied that the Applicant would apply for such a visa within a period allowed for that purpose (cl.050.212(3)).
The second basis for the Tribunal’s decision was said to be that the Applicant did not meet the criterion in cl.050.223 in Schedule 2 to the Regulations. The First Respondent pointed out that while the Tribunal indicated that its reasons in relation to cl.050.212 were determinative of the review, it had nonetheless, for the sake of completeness, also had regard to whether the Applicant would abide by any visa conditions were a visa to be granted, as required by cl.050.223. The Tribunal was not satisfied that the Applicant would abide by applicable conditions were a visa to be granted and found (at [31]-[44]) that he did not meet the criterion in cl.050.223 in Schedule 2 to the Regulations.
The First Respondent submitted that unless the Applicant could successfully challenge the first basis for the Tribunal’s decision (that is, the findings that he did not meet cl.050.212(2) and/or cl.050.212(3)) and/or establish a failure by the Tribunal to comply with Division 5 of Part 5 of the Migration Act, an allegation of jurisdictional error on the part of the Tribunal for which the Court would grant relief could not be made out. Hence it was said that the consideration of separate questions on these issues would be an efficient course of action. It was acknowledged that the practical effect of proceeding by way of the proposed separate questions would be to exclude from consideration the second basis for the Tribunal’s decision (that is, in relation to whether the Applicant would abide by conditions as required by cl.050.223).
In his application the Applicant sought review of four decisions:
· the Tribunal decision of 9 January 2017 (as to which jurisdiction was not disputed);
· a decision of a compliance officer of 22 December 2016 which, as the First Respondent suggested, appears to be a reference to the decision of a delegate of the First Respondent to refuse the application for a bridging visa;
· a decision of a named compliance officer of 25 March 2013, apparently in relation to the Applicant’s detention; and
· what was said to be a future decision in relation to “deportation”.
Proposed separate questions 1 and 2 relate to the decision of 22 December 2016 and the allegation concerning a future decision in relation to removal, not the decision of 25 March 2013.
The nature of the application for review of a decision of a compliance officer made on 25 March 2013 was not clear on its face. Counsel for the First Respondent had sought clarification from the Applicant as to whether he sought to challenge the lawfulness of his detention. It was suggested that if the answer to this question was “no”, then no issue for determination arose in that respect.
The Applicant did indicate in submissions that he was not contesting why he was detained. He stated that his concern was that he had been detained for some four years when he had not murdered anyone, committed adultery or done anything unlawful and that this was extreme and excessive. However, he also appeared to complain that he thought that he had probably been detained based on the character test. He took issue with a 2013 decision of the Administrative Appeals Tribunal which he did not identify further, but seemed to regard as relevant in the present proceedings, in particular in the context of his subpoena for production addressed to the Department.
The First Respondent observed that it appeared from the Applicant’s oral submissions that he was not in fact challenging the lawfulness of his detention and submitted that on that basis the issue of jurisdiction in respect of the decision of 25 March 2013 did not arise. Hence it was not included in the proposed separate questions.
However in post-hearing submissions the Applicant submitted (errors in original):
The Applicant submit to allow the 1st Respondent’s arguments on Jurisdiction. But the applicant forbids any alteration to the; all decisions either in the interest of clarity or otherwise.
Should the Court decide otherwise; beneficial or not to the applicant (my interest); I must appeal for the greater good of public interest. As if; excessive detention of almost five (5) years is in the public interest when the Courts, the judiciary has the ‘business’, the go to ‘house’ and the sayer of who goes to jail, detention or house arrest for such (5 years) number of years; not some office desk junkie.
He also elaborated on his concerns about decisions other than those of the Tribunal, his continued detention and the fact that he had not been granted a protection visa. He submitted that the Court should have all his records before it.
The Applicant expressed general concern about the separate question process suggested by the First Respondent insofar as it was sought to confine the Court’s consideration of the Tribunal’s decision to two of the criteria for a bridging visa.
It is apparent from the very broad range of matters canvassed in the Applicant’s post-hearing submissions and the documents he filed after this procedure was proposed, that he does not agree with a procedure which may have the effect of excluding any part of the Tribunal decision from the Court’s consideration. The basis for his complaint about a departmental decision of 22 March 2013 lacks clarity. Confusingly, he appears to wish to pursue his application in this respect, while at the same time “submitting” to the First Respondent’s arguments on jurisdiction.
In addition, in his Application in a Case filed on 23 March 2017 the Applicant sought (among other things) to raise an additional ground of review in relation to the Tribunal decision described as follows (errors in original):
Excess of jurisdiction. A member asserted IOM’s operation modus operandi which discriminated against myself and decision.
While expressed in terms of an excess of jurisdiction and somewhat lacking in clarity, such proposed ground may perhaps be seen as raising an allegation of actual and/or apprehended bias. In any event, it highlights the fact that in circumstances where various preliminary issues have been raised by both parties, the Applicant has not yet been afforded the opportunity to file an amended application in relation to review of the Tribunal decision.
At the same time, it is the case that the Applicant’s submissions and the extensive material he has filed to date raise the possibility that he sees these proceedings as an opportunity to raise a wide range of concerns about past events in Australia in the context of review of the Tribunal decision. He appears to be of the view that it would be appropriate for all his “records” to be before the Court.
In general, all issues of fact and law in a proceeding should be determined at one time. It will normally be both convenient and appropriate for that course to be adopted (see Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; [1999] FCA 718 per Branson J at [9]; Arnold v Attorney-General for Victoria [1995] FCA 727 at [7] and Prescott Securities Limited v Gobbett (No 2) [2017] FCA 81 at [13]).
In some circumstances preliminary determination of particular issues may facilitate the just, efficient and economical resolution of proceedings, consistent with the objects of the Federal Circuit Court Act 1999 (Cth) (see s.3 and also r.1.03 of the Federal Circuit Court Rules 2001 (Cth)). Use of this procedure may be appropriate where determination of the issue or issues identified in separate questions may dispose of the action or contribute to the saving of time and cost by substantially narrowing the scope of issues to be decided (see Reading at [8]).
This is recognised in Part 17 of the Rules which provides for a decision on a separate question as follows:
17.01 Definition
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
17.02 Order for decision
The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
17.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided in paragraphs numbered consecutively.
17.04 Orders, directions on decision
If a question is decided under this Part, the Court may make the orders and directions that the nature of the case requires.
17.05 Disposal of proceeding
The Court may, in relation to a decision of a question under this Part:
(a) dismiss the proceeding or any part of the proceeding; or
(b) give judgment, including a declaratory judgment; or
(c) make another order.
Caution is to be exercised, however, in proceeding by way of determination of a separate question. In Rainsford v State of Victoria & Anor (2005) 144 FCR 279; [2005] FCAFC 163, the Full Court of the Federal Court stated (at [37]) that in a court exercising federal jurisdiction (such as this court), “the separate question procedure is available only where the facts have been judicially determined or agreed by the parties” (and see Anderson v Wilson (2000) 97 FCR 453; [2000] FCA 394 at [28]). It has also been said that care must be taken to avoid the determination of issues not “ripe” for separate and preliminary determination (see Reading at [8]; Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273; [2013] FMCA 207 per Judge Lucev at [27] and CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606).
Relevantly, as Branson J observed in Reading at [8], an issue may not be “ripe” (in the requisite sense) where “it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved”.
In SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90, a recent decision of the Full Court of the Federal Court in relation to judicial review proceedings, Griffiths J made the point (at [87]) that “[t]he difficulties and problems which can arise when proceedings are conducted by way of separate questions are well known” (and see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [49]-[59]).
Determination of proposed separate questions relating to one basis for the Tribunal decision would not address the other basis for the decision (see Reading at [8]). I am not satisfied that in this case addressing one basis for the decision would necessarily lead to final determination of these proceedings.
I do not consider it appropriate to proceed on an assumption that relief would necessarily be declined in the exercise of the Court’s discretion if there were to be a jurisdictional error in relation to the Tribunal’s consideration of the cl.050.223 criteria in the absence of jurisdictional error in relation to the cl.050.212 criteria. In such circumstances, issues such as whether there would be any utility in remittal or a possibility of a different outcome had any such error not been made would have to be considered. That would be a matter to be determined after consideration of the circumstances of the particular case as a whole. I note in that respect that the criteria in cl.050.212 involve the exercise of the Tribunal’s discretion.
The Applicant, who is self-represented, may intend to raise issues in relation to the Tribunal decision and procedures beyond those contained in his originating application or relating to the Tribunal’s obligations under Division 5 of Part 5 of the Act. He should have that opportunity. Determination of the separate questions proposed by the First Respondent is premature. It may leave potentially significant issues unresolved. This is not a case in which the facts have been determined or agreed (beyond the “fact” of the existence of the Tribunal reasons for decision). Insofar as the Applicant may raise issues about the Tribunal decision or its reasoning beyond those encompassed by the proposed separate questions, they would remain for determination.
In addition, if the Court has jurisdiction in relation to any other decision referred to in the application, the grounds of review in relation to such decision would still have to be considered.
While the First Respondent’s endeavour to narrow the scope of the issues that have to be decided to save time and expense is understandable, I am not satisfied that determination of the proposed separate questions is appropriate in this case.
More generally, I have some concern about whether it is procedurally fair and appropriate in judicial review proceedings of this nature to use the separate questions procedure in the manner proposed. It is the case that the Applicant’s apparent desire to re-agitate matters dealt with in prior proceedings and to seek redress in relation to a wide range of grievances may well complicate the efficient and economical resolution of these proceedings and, indeed, may prolong the proceedings. However in my view these concerns do not warrant the use of the separate questions procedure and are more appropriately addressed by determining the jurisdictional, subpoena and discovery questions as preliminary issues (without resorting to the separate questions procedure) and by making it clear to the Applicant that judicial review of the Tribunal decision is not merits review and that these proceedings are not an opportunity to address his wider concerns. While it is apparent that this matter will have to be dealt with in stages, that does not satisfy me in all the circumstances that it is appropriate to determine the issues proposed by the First Respondent as separate questions, in particular in relation to the decision and procedures of the Tribunal.
It would, however, be fair and efficient if jurisdictional issues were to be resolved before determination of the Notice of Objection to subpoena. Insofar as the Applicant maintains an application for discovery and/or his post-hearing submissions may be seen as seeking leave to issue further subpoenas, those matters should also be determined after the question of the jurisdiction of the Court is resolved. The extent of the jurisdiction of the Court will be directly relevant to a determination of these issues.
Accordingly I intend to make directions to progress this matter by listing for hearing the issue of the Court’s jurisdiction to consider the application for review of decisions other than the Tribunal decision and, in light of the Court’s jurisdiction, the objection to the subpoena that has been issued to the Department, any application for leave to issue further subpoenas and any discovery order sought by the Applicant.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 19 July 2017