FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVU v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2607 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – second application for judicial review on a different ground of a decision of the Administrative Appeals Tribunal that it did not have jurisdiction to review a decision of the Delegate of the Minister for Home Affairs not to grant a Temporary Protection (Class XD) (Subclass 785) visa to the applicant because he was a fast track review applicant – first application for judicial review had proceeded through the Federal Circuit Court of Australia, the Federal Court of Australia and the High Court of Australia and failed – applicant needed an extension of time under s.477(2) of the Migration Act 1958 (Cth) of eighteen months to make his second application for judicial review to this Court – applicant’s new proposed substantive ground asserting jurisdictional error of the Tribunal contended that the statutory instrument under which the applicant was found to be a fast track applicant did not apply to him – leave to rely on substantially the same ground had been refused by the Full Court of the Federal Court of Australia in earlier decision – new proposed substantive ground should have been raised in first application for judicial review – unreasonable for new proposed substantive ground not to have been raised in earlier application for judicial review – principle of finality of litigation militated against any extension of time – in any event no reasonable prospects for success for new proposed substantive ground – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 48A, 48B, 411, 477 Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | SZTVU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2466 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr E. Olivier of Counsel |
| Solicitors for the Applicant: | Westside Legal |
| Counsel for the First Respondent: | Mr N. Swan of Counsel |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 24 September 2019 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2466 of 2019
| SZTVU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Sri Lanka aged 45 years.
By Application filed in this Court on 24 September 2019, he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 18 months outside the 35 day time limit prescribed by s.477(1) to make his substantive application to this Court; and
b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 13 February 2018 which found that it did not have jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 November 2017 refusing to grant to him a Temporary Protection (Class XD) (Subclass 785) visa (TPV).
Background
The Applicant arrived in Australia as an Unauthorized Air Arrival on 23 March 2013. He did not have a valid visa, was not immigration cleared, and was detained on arrival and has remained in immigration detention ever since. I find on the evidence before me, namely [7], [8] and “DA2” of the affidavit of Mr Amirtharaj affirmed on 29 October 2019, that on this same date the Department of the Minister (Department) assigned to him the Person Identification Digit 0098107590 (PID) with at least one of the reasons for doing so being the reasonable and beneficent purpose of anonymising his identity.
On 29 April 2013 the Applicant made an application for a Protection (Class XA) (Subclass 866) visa, which was refused by a Delegate on 23 September 2013 and that refusal was affirmed by the Refugee Review Tribunal (RRT) on 8 January 2014. An application by the Applicant for judicial review of that decision was unsuccessful in this Court: SZTVU v Minister for Immigration and Border Protection [2015] FCCA 1620, and unsuccessful on appeal in the Federal Court: SZTVU v Minister for Immigration and Border Protection [2015] FCA 1449. As a consequence the Applicant was barred from making any further Protection visa application by force of s.48A of the Act. The solicitor instructing Counsel for the Applicant in these earlier proceedings was Ms Michaela Byers (Ms Byers).
On 10 February 2014 there occurred what is called the ‘Data Breach’ (Data Breach) which is summarised by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 187 – 188 [3] – [4].
Section 5(1AA)(b) of the Act provides that the Minister “may make a legislative instrument for the purposes of… paragraph (b) of the definition of “fast track applicant””. On 26 July 2017 the Minister made under that statutory provision Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 (IMMI 17/015) which specified the Applicant by reference to his PID to be a person who was a “fast track applicant” as defined by sub-paragraph (b) of the definition of “fast track applicant” contained in s.5(1). Sub-paragraph (b) of this definition includes “a person who is, or who is included in a class of persons who are, specified by legislative instrument made under [5](1AA)(b)”.
I find that by letter dated 16 August 2017 to the Applicant through his representative at that time, Rivergum Lawyers Pty Ltd, the Department:
a)advised that following the Data Breach the Department would be writing to him shortly to advise that he would be eligible to apply for a TPV or a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV); and
b)recorded at the top of the letter his PID and advised that correspondence from the Department would refer to the Applicant by his PID and that he should keep a record of his PID.
By letter dated 5 September 2017 the Department advised Ms Byers that the Minister had exercised his power under s.48B(1) of the Act to allow the Applicant to make a further application for a Protection visa, being either a TPV or a SHEV. This letter included the following paragraphs:
If you make a valid application for a TPV or SHEV, your application will be considered under the Fast Track Assessment process. This is because you have been specified as a fast track applicant in a legislative instrument made by the Minister under subsection 5(1AA)(b) of the Act…
…
Personal Identifier
For processing and correspondence purposes, you have been given a Person Identification Digit (PID), which is recorded at the top of this letter. Please keep a record of your PID.
(emphasis added)
Under cover of letter dated 6 September 2017 Ms Byers lodged the TPV application with the Department, quoting the Applicant’s PID. I note that the Applicant’s answers to questions 59 to 61 of his TPV application form were to the effect that he had unsuccessfully applied for and been refused refugee status or protection in both Germany and France, where he lived between 1993 and 2005 before arriving in Australia.
Claims to Protection
Because of the nature of the Application in this proceeding the Applicant’s claims to protection may be stated shortly. In response to questions 75 to 83 of his TPV application form the Applicant advanced the following claims:
a)he had horrific experiences of torture, extortion and other atrocities with the Sri Lankan army, Indian army and Tamil militias;
b)his life was in danger so his father arranged for him to go to Germany in June 1993. While he was in Europe his brother joined the Liberation Tigers of Tamil Eelam (LTTE) and his sisters have tried to find his brother. On 2 September 2008 he received a letter from the German Red Cross stating that they had visited his brother on 30 July 2008 in Boosa Detention Camp in Colombo and that following this letter, he knows nothing more about his brother’s whereabouts;
c)he fears that he will be arrested, detained and interrogated about his brother, the LTTE and being in Australia illegally if he were to return to Sri Lanka;
d)the Sri Lankan authorities will be aware of the contents of his applications for protection in Australia because the Data Breach allowed access to the RRT’s Decision Record, which was available on the website prior to 1 July 2015;
e)the Sri Lankan authorities will question him about how he used a people smuggler in Thailand, why the Australian Government had detained him for so long in immigration detention, why they wouldn’t release him and about the people he met in immigration detention in Australia and what the other detainees were doing;
f)in late 2008 his brother allegedly escaped from prison and the Sri Lankan army suspected that both he and his family helped his brother to escape. In or about Christmas time he was arrested and detained for about a week by the Sri Lankan army where he was tortured, assaulted and subjected to degrading treatment;
g)the Sri Lankan army had control of most of Sri Lanka and soon after the defeat of the LTTE the Sri Lankan army gained control of the whole of Sri Lanka;
h)the Sri Lankan authorities will arrest him upon his return to Sri Lanka. He fears that he will be killed during the interrogation process. They want to re-detain his brother and they will want to know if he had made contact with his brother while in Australia. They will not believe him if he states that he has not heard from his brother or that he does not know where his brother is; and
i)he fears that he will be persecuted by the Sri Lankan authorities and that he cannot relocate within Sri Lanka because the Sri Lankan authorities control all of Sri Lanka.
Decision of Delegate
The definition of “excluded fast track review applicant” in s.5(1) of the Act includes a fast track applicant who in the opinion of the Minister “(iii) has made a claim for protection in a country other than Australia that was refused by that country”. It is not in dispute that the Applicant had applied for protection previously in France and Germany.
By email dated 5 October 2017 to Ms Byers the Delegate attached a letter which invited the Applicant to comment upon whether he was an “excluded fast track review applicant” because he had previously unsuccessfully applied for protection in France and Germany. Ms Byers responded to this letter by her letter of 9 October 2017 which submitted that the Applicant should not be found to be an excluded fast track review applicant.
Then on 11 October 2017 the Applicant engaged Parish Patience Immigration Lawyers as his legal representation (Parish Patience).
By letter dated 12 October 2017 Parish Patience submitted to the Delegate that the application for the TPV should not be considered as an excluded fast track review application.
In the result the Delegate held that the Applicant was neither a refugee for the purposes of the Refugee Convention criterion nor did he satisfy the complementary protection criterion and he refused to grant a TPV to him. With respect to the Data Breach the Delegate gave various reasons for ultimately concluding that:
Whilst I accept that the applicant’s details were published on the Department’s website as part of the data breach, and that the Sri Lankan authorities may well be aware that the applicant has sought asylum in Australia, I am satisfied that the Sri Lankan authorities would not be aware of the applicant’s actual protection claims.
Further, the Delegate found that the Applicant was an excluded fast track review applicant for the following reasons:
Reasons for the finding
Section 5(1)(a)(iii) stipulates that a person who, in the opinion of the Minister “has made a claim for protection in a country other than Australia that was refused by that country” is an Excluded Fast Track Review Applicant (EFTRA).
The applicant indicated on his recent TPV application 866 Form lodged 6 September 2017 that he had applied for refugee status or protection previously in France and Germany. This information was also provided in his previous Protection Visa 866 Form lodged in 2013 and the applicant also confirmed the aforementioned information in his TPV interview held on 5 October 2017. The applicant has not provided the dates that he made the aforementioned applications for protection however he has stated that he resided in Germany and France from 1993 until 2005. The applicant stated in his 2013 Protection Visa application that he was refused protection in both Germany and France and he confirmed this information within his recent TPV interview, stating that he had received a letter from the authorities on each occasion informing him that his application had been unsuccessful.
I further note that it was common ground at the hearing of the present proceeding, when Mr Olivier of Counsel appeared for the Applicant and Mr Swan of Counsel appeared for the Minister, that an excluded fast track review applicant was not eligible for merits review of the Delegate’s decision by the Immigration Assessment Authority.
Decision of Tribunal
On 21 December 2017 the Applicant lodged through Parish Patience a merits review application of the Delegate’s decision with the Tribunal, which attached a letter dated 20 December 2017 from Parish Patience submitting that the TPV application was not a fast track review application and noted disagreement with the view that the Applicant was an excluded fast track review applicant and contended that the Applicant was entitled to lodge an appeal with the Tribunal. By letter dated 18 January 2018 to Parish Patience the Tribunal extended an invitation to comment on the validity of the merits review application in the following terms:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Protection (Class XD) visa.
According to paragraph (b) of the definition of fast track applicant in s.5(1) of the Migration Act 1958 the term ‘fast track applicant’ means a person who is, or who is included in a class of persons who are, specified by legislative instrument under paragraph (1AA)(b). Relevantly, the Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 commenced on 17 August 2017. According to the Instrument IMMI 17/015 ‘fast track applicant’ includes a person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to Instrument IMMI 17/015.
According to information obtained from the Department of Home Affairs’ electronic records, your Person Identification Digit is 0098107590. The Person Identification Digit 0098107590 is included in Schedule 1 to Instrument IMMI 17/015, so it appears that you are a ‘fast track applicant’. Thus, I am of the view that your application is not a valid application as a decision made in relation to a ‘fast-track applicant’ is not a decision which can be reviewed by us. However, this is a matter which must be determined by a Member.
In response, Parish Patience sent a statement of the Applicant on 6 February 2018 to the Tribunal, which stated in part as follows:
·On 30 November 2017, the Department of Home Affairs refused my application stating that my application falls under the Fast track process and advised that since I previously applied for a protection visa in 1990s in Europe, I would be considered as an excluded fast track process.
·Either in the letter dated 05 October 2017 or in its decision record dated 30 November 2017, the Department of Home Affairs did not mention that the Department of Home Affairs considered my application as a fast track process because my Person Identification Digit: 0098107590 as mentioned in the Tribunal letter was mentioned in the Ministerial Instrument.
At [3] of its Decision Record the Tribunal noted that s.411(2)(c) of the Act provided that fast track decisions were not decisions which were reviewable by the Tribunal under Part 7 of the Act. Then at [15] – [19] the Tribunal found as follows:
[15]In the decision record, the delegate was correct in referring to IMMI 17/05 which does specifically mention the applicant’s Personal Identification Digit. IMMI 17/05, itself, is an instrument made under paragraph 5(1AA)(b) of the Act. Paragraph 5(1AA) states that:
(1AA) The Minister may make a legislative instrument for the purposes of the following provisions:
(a) paragraph (b) of the definition of excluded fast track review applicant in subsection (1);
(b) paragraph (b) of the definition of fast track applicant in subsection (1).
[16] The Act further states that: "fast track review applicant" means a fast track applicant who is not an excluded fast track review applicant.
[17] Review applications falling under paragraph 5(1AA)(b) (where the applicant is specified as a ‘fast track applicant’) may be reviewable by the [Immigration] Assessment Authority under Part 7A of the Act but are not this Tribunal under Part 7 of the Act.
[18]As the applicant is specifically identified under IMMI 17/05 pursuant to paragraph 5(1AA)(b), he is a ‘fast track applicant’ which means that the delegate’s decision is a ‘fast track decision’ as defined in s.5(1).
[19]Accordingly, the decision that is the subject of the review application is a fast track decision and is not reviewable by the Tribunal: s.411(2)(c).
Accordingly, the Tribunal held that it did not have jurisdiction to review the decision of the Delegate.
Challenge to Tribunal Decision in the Federal Circuit Court of Australia, the Full Court of the Federal Court of Australia and the High Court of Australia
Federal Circuit Court
The Applicant filed an application for judicial review of the Tribunal’s decision in this Court on 16 March 2018 by his solicitors, Westside Legal, who have remained his solicitors at all material times thereafter. On 9 April 2018 the Court granted leave to the Applicant to file and serve any amended application on or before 21 May 2018.
Mr Prince appeared for the Applicant at the hearing before Judge Street on 19 July 2018, moving on an amended application filed on 16 July 2018 which sought the following relief:
Final orders sought by applicant/s
…
1.A declaration that:
a. The Statutory Instrument entitled Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 ("IMMI 17/015") made 26 July 2017 is invalid and not authorised by the Act so far as it purports to specify the applicant as a "Fast Track Applicant".
b. The applicant is not a "fast track applicant" within the meaning of s5 (1AA) (b) of the Migration Act;
2.Costs
Grounds of application
1. IMMI 17/015 is invalid in so far as it purports to apply to the applicant.
Particulars
a.IMMI 17/015 was purportedly made on 26 July 2017 under s 5(1AA) (b) of the Migration Act;
b. The extent of the power to make a Regulation under s 5(1AA) (b) of the Act is relevantly limited to the purpose of identifying a person who is a "Fast Track Applicant" for the purposes of sub paragraph (b) of the definition of that term in s 5(1) of the Act.
c. Mr. SZTVU learnt for the first time on 5 September 2017 that the Minister had exercised his power under s48B of the Act to allow him to make an application for a protection visa under the Act and lodged that application on 6 September 2017.
d. At the time that IMMI 17/015 was made, the Mr SZTVU had no made no extant application for a protection visa under the Act and could not be a person that could be identified as a "Fast Track Applicant" (emphasis added) for the purposes of the Migration Act at that time;
e. Accordingly, IMMI 17/015 in so far as it purported to identify Mr. SZTVU as a Fast Track Applicant was made beyond power and was not authorised by the Act and is invalid.
2. The Tribunal failed to consider whether the DIBP decision is a valid decision.
Particulars
The Tribunal failed to consider that the Delegate's decision incorrectly applied the Fast Track Applicant procedure to the applicant when he was not a "Fast Track Applicant".
3. The First Respondent failed to exercise its jurisdiction to consider the applicant's claim as a result of that the decision to refuse to exercise jurisdiction should be declared invalid.
Particulars
a. The Tribunal incorrectly found the applicant to be a person who was a Fast Track Review Applicant.
In his decision of the same date bearing medium neutral citation [2018] FCCA 1962 his Honour set out IMMI 17/015 and at [14] and [15] in relation to ground 1 of the amended application found as follows:
[14]The instrument then set out in schedule 1 refers to particular persons by an anonymised particular reference number for each person. It is apparent on the face of the schedule that those are persons who have all sought protection, whether successfully or unsuccessfully. It is apparent that all the persons are non-citizens. The language of the instrument reflects a valid exercise of the instrument-making power in s 5(1AA) of the Act.
[15]I do not accept that there is any arguable case that the instrument is invalid or in excess of the instrument-making power. I do not accept that the regulation-making power is the subject of a reasonable argument as to the validity. Accordingly, I do not accept that there is any reasonable prospect that the instrument is invalid insofar as it purports to apply to the applicant.
In relation to grounds 2 and 3 his Honour found at [17] – [18]:
[17]In relation to ground 2, the Tribunal correctly identified that the applicant was a person specified by an anonymised particular reference in the instrument and correctly found the applicant to be a fast track applicant. No arguable case of jurisdictional error is made out by ground 2.
[18]In relation to ground 3, the Tribunal was correct in holding it had no jurisdiction. The Tribunal was correct to find the applicant was a fast track applicant and that it had no jurisdiction. No arguable case of jurisdictional error is made out by ground 3.
Accordingly, Judge Street found that the amended application had no reasonable prospects of success and dismissed it under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).
Full Court of the Federal Court of Australia
On 1 August 2018 the Applicant filed an application in the Federal Court of Australia for leave to appeal against the orders of Judge Street.
On 7 September 2018 her Honour Perry J in the Federal Court of Australia in judgment bearing medium neutral citation [2018] FCA 1394 granted the Applicant leave to appeal from the decision of Judge Street and referred the appeal to a Full Court for determination.
On 23 September 2018 the Applicant filed a notice of appeal in the Federal Court containing six grounds of appeal. The fourth ground, for the reasons particularised therein, contended that Judge Street had erred by failing to find that IMMI 17/015 was invalid insofar as it purported to apply to the Applicant. On 8 November 2018 the Applicant filed an amended notice of appeal, which added a further seventh ground of appeal which raised an issue which had not been argued before Judge Street and for which accordingly leave was required and was sought in order to rely on in it in the appeal.
The proposed seventh ground was in the following terms:
The primary judge erred by finding at [17] that the Tribunal was correct to find that the Appellant was “a person specified by an anonymised particular reference” in IMMI 17/015 and that the appellant was a ‘fast track applicant’ when there was no basis for those findings.
(proposed seventh ground)
As may be seen by a comparison of the proposed seventh ground with the proposed substantive Ground relied upon in the present proceeding (see [45] below) they are in substance exactly the same, as Mr Olivier agreed at the hearing. To anticipate, I note that the Applicant was refused leave by the Full Court to rely upon the proposed seventh ground in his appeal.
The Full Court of the Federal Court of Australia comprised of Perry, Derrington and Wheelahan JJ heard the appeal on 20 November 2018, when Mr Prince S.C. with Mr Olivier appeared for the Applicant and Mr Kennett S.C. with Mr Swan of Counsel appeared for the Minister. Judgment in that proceeding reported as SZTVU v Minister for Home Affairs (2019) 268 FCR 497 was delivered on 22 February 2019, with Perry J expressing agreement with the joint judgment of Derrington and Wheelahan JJ (the joint judgment) and adding some further observations of her own. At 504 [24] and 506 – 507 [33] of the joint judgment their Honours described the proceeding in the Federal Circuit Court under appeal:
[24]On 16 March 2018, the appellant filed an application in the Federal Circuit Court seeking judicial review of the decision of the Administrative Appeals Tribunal pursuant to s 476 of the Act. The appellant submitted to the Federal Circuit Court that the Instrument was ineffective to specify the appellant as a “fast track applicant” on the ground that the specification of the applicant as a “fast track applicant” was outside power. We shall refer to the submission in further detail later in these reasons. The primary judge considered that there was no arguable case that the instrument was invalid, and as referred to at [13] above, on 26 July 2016 dismissed the appellant’s application on the ground that the application had no reasonable prospect of success.
[33]In the Federal Circuit Court the appellant by an amended application dated 16 July 2018 sought orders that the decision of the Tribunal be quashed, and that a writ of mandamus issue to the Tribunal requiring it to consider the appellant’s application for review according to law. In addition, the appellant sought a declaration that the Instrument is invalid in so far as it purports to specify the appellant as a “fast track applicant”, and a declaration that the appellant is not a “fast track applicant” within the meaning of s 5(1AA)(b) of the Act. The grounds of the application rested on the claim that, at the time the Instrument was made, the appellant had made no extant application for a protection visa under the Act, and was therefore not an “applicant” for the purposes of the defined term “fast track applicant” in s 5(1) of the Act.
Then in relation to the proposed seventh ground it was said at 508 [40] – [41] of the joint judgment:
[40]Third, the appellant sought leave to amend the notice of appeal to raise a seventh ground of appeal which is in the following terms –
The primary judge erred by finding at [17] that the Tribunal was correct to find that the Appellant was “a person specified by an anonymised particular reference” in IMMI 17/015 and that the Appellant was a 'fast track applicant' when there was no basis for those findings.
[41]As argued by the appellant, the proposed seventh ground put in issue whether, at the time the Minister made the Instrument on 26 July 2017, the appellant had been given the Personal Identification Number, “0098107590”. At the hearing, the Court refused leave to the appellant to add the proposed seventh ground.
At 508 [43] of the joint judgment grounds 2 – 6 as argued for the Applicant were summarised as follows:
[43] Counsel for the appellant submitted that the instrument-making power in s 5(1AA)(b) of the Act is limited to specifying as a “fast track applicant” persons who are protection visa applicants, and that the provision cannot have been intended to create a power in the Minister to designate any “person” as a “fast track applicant” for the purposes of the Act.
Grounds 2 – 6 were rejected in the joint judgment, with the Full Court observing at 513 [71]:
[71]In the present case we do not accept that the use of the word “applicant” in the defined term “fast track applicant” colours the meaning of para (b) of the definition so that only a person who is an applicant for a protection visa may be specified by an instrument made by the Minister under s 5(1AA) of the Act. The term “fast track applicant” is not a term of ordinary usage: it is an instance of a term that is given a special meaning by the definition in s 5(1).
From 513 – 517 [73] – [88] of the joint judgment consideration was given to the proposed seventh ground and at [89] the application for leave to file an amended notice of appeal raising the proposed seventh ground was refused. The three reasons for the refusal were as follows:
a)there was nothing in the Applicant’s argument that because the term “Personal Identification Digit” is not defined by the Act, the Act does not empower a person or the Minister to give a PID to a particular person for the purposes of the instrument-making power in s.5(1AA) of the Act. There was nothing in the migration legislation which precluded the use of identifying numbers and the use of such numbers is consistent with other provisions of the Act which prohibit the Minister from identifying persons: see 515 [82] – [83] of the joint judgment;
b)the evidentiary foundation for the idea that the Applicant had not been allocated his PID at the time of the making of IMMI 17/015 on 26 July 2017 was, at best, slim. The Applicant’s argument rested principally on the Department’s letter dated 5 September 2017 to Ms Byers (see [8] above). Nevertheless, that letter did give rise to the inference that the PID had been allocated to the Applicant at some time before the letter was sent: see 515 – 516 [84] – [85] of the joint judgment; and
c)the subject matter of the proposed seventh ground had not been raised before Judge Street: see 516 – 517 [86] of the joint judgment.
At 517 [87] of the joint judgment the following was recorded:
[87]Counsel for the appellant frankly conceded that the arguments in support of proposed ground 7 had not been put to the primary judge. Because of the way the issues were framed by the appellant below, no occasion arose for the Minister to address by evidence the question whether a PID had been allocated to the appellant at the time the Instrument was made. It also follows that there was no error made by the primary judge in failing to consider arguments that were not put to him by the appellant at the hearing of the application to show cause.
At 517 [88] of the joint judgment it was pointed out that having regard to the terms of r.44.13(1) of the FCC Rules the Applicant before Judge Street was confined to the relief sought and the grounds mentioned in the amended application, and it was on these premises that the Minister had conducted the case before Judge Street.
Accordingly, leave to raise the proposed seventh ground was refused.
From 517 – 518 [90] – [94] of the joint judgment the Full Court considered ground 1 of the amended notice of appeal, which was rejected. The appeal to the Full Court was dismissed with costs.
High Court of Australia
On 7 August 2019 Gordon and Edelman JJ in the High Court dismissed an application for special leave to appeal from the Full Court’s decision: [2019] HCASL 222.
Grounds of Extension Application
The Applicant’s Grounds for an extension of time are as follows:
1. The applicant previously made an application to this Court seeking review of the Tribunal’s decision, which was dismissed at a show cause hearing under rule 44.12 of the FCC Rules. An appeal of that decision to the Federal Court of Australia was dismissed on 22 February 2019. An application for Special Leave to Appeal to High Court was dismissed on 7 August 2019.
2. The applicant is not prevented from bringing the present application, as this Court’s earlier decision was interlocutory and the Federal Court did not grant leave to rely on the ground raised in this application. The issue raised by this application has accordingly never been finally determined.
3. The Applicant has issued these proceedings expeditiously following the determination of the application for special leave to the High Court.
In considering whether or not it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.
Those factors include:
a) whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b) whether there is any prejudice to the Minister; and
c) whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive Ground on a “reasonably impressionistic level”. As Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
Proposed Substantive Ground
The proposed substantive Ground in this proceeding, which is in almost exactly the same terms as the proposed seventh ground, is as follows:
1. The Tribunal erred in finding that the applicant was “a person specified by an anonymised particular reference” in Statutory Instrument Migration (IMMI17/015: Person who is a Fast Track Applicant) Instrument 2017 (IMMI 17/015) and was a “fast track applicant” when there was no basis for such a finding.
Particulars
a. The Statutory Instrument IMMI 17/015 was purportedly made on 26 July 2017 pursuant to s 5(1AA)(b) of the Migration Act.
b. Paragraph 6 of IMMI 17/015 purports to specify persons as “fast track applicants” by reference to “Department of Immigration and Border Protection Person Identification Digits” (PIDs), and Schedule 1 lists a series of PIDs.
c. There is no basis for a finding that any of the PIDs listed in IMMI 17/015 referred to the Applicant at the time the Instrument was made.
d.Accordingly, there was no basis for the Tribunal’s finding that the applicant was a “fast track applicant”.
e. Further and in the alternative to paragraphs (c) to (d), the term “Person Identification Digit” is not a defined term, the Act does not empower any person to specify that a number is particular person’s PID and there was no other basis for a finding that any particular number was a PID.
f. Accordingly, there was no basis for the Tribunal’s finding that a purported PID in IMMI 17/015 referred to the applicant.
Consideration
Based on the principles relating to the finality of litigation I am of the view that it is not in the interests of the administration of justice that there be a grant of an extension of time, but rather to the contrary that the grant of such an extension would bring the administration of justice into disrepute.
In considering an application for an extension of time “… it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time”: see McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480.
It is a fundamental principle of our system of justice that a party brings forward in the one case all of its evidence and arguments in relation to the subject of the relevant litigation. This principle was recently adverted to by Gageler J in Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 at 395 [18] – [19]:
[18] In University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, where a new argument of constitutional invalidity was sought to be raised after the hearing of a special case in this Court in which validity had been assumed, this Court unanimously stated:
“Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
[19] The principle to which reference was made in Metwally (No 2) is reflected in the overlapping doctrines of issue estoppel and abuse of process recently considered in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 323 ALR 1. It is not necessary or appropriate to bring either of those specific doctrines to bear in the present case. It is sufficient that the principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.
In Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (Johnson) at 27 Lord Bingham referred to his own earlier judgment when sitting in the English Court of Appeal as Master of the Rolls in Barrow v Bankside Agency Ltd [1996] 1 WLR 257 at 260 (Bankside), where he had stated:
The rule in Henderson v Henderson 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
In Ant Projects Pty Ltd v Brooks [2019] QCA 259 Morrison JA in the Queensland Court of Appeal cited the above passage from Bankside, saying further at [69]:
[69]It is a fundamental tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances (D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [45]). It applies to civil cases and in the context where issues have been litigated but one party later wished to have a chance to litigate another issue (Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256 at [45]). In the civil context the principle is that there should be finality in litigation and a party should not be twice vexed in the same matter (Johnson v Gore Wood & Co [2002] 2 AC 1, at 27). …
Further, in Johnson at 31 Lord Bingham, in a passage approved by French CJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 194 [34], said:
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.
In my view the Applicant, by his present application for an extension of time, is seeking to unreasonably revisit and amplify a dispute about IMMI 17/015 after it should have been treated as at an end by either the decision of the Full Court refusing leave to raise the proposed seventh ground, or by the High Court’s refusal of special leave to appeal from the decision of the Full Court. The unreasonableness of the course sought to be pursued by the Applicant is substantiated by the following considerations.
No Explanation Proffered of Failure to Raise Proposed Substantive Ground Earlier
The circumstances called for a full and frank explanation of why the proposed substantive Ground was not raised before Judge Street. As the Full Court comprised of Perram, Markovic and Charlesworth JJ said in Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [95]:
[95]… In the absence of an explanation, it may be inferred that attention had in fact been given to the grounds available to be argued at first instance by those who were legally qualified to make that assessment: AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 [(AAD16)] at [26]–[27] (Charlesworth J)….
First, at all times the Applicant has been represented by solicitors and Counsel well-known and respected for their expertise in the area of migration law. However, there is no explanation adduced by admissible evidence to explain why the argument sought to be run by the proposed substantive Ground was not advanced before Judge Street. Likewise, no explanation was given to the Full Court which apparently was merely told “that the arguments in support of proposed ground seven had not been put to the primary judge”: see [36] above.
At the hearing before me Mr Olivier from the Bar Table attempted to tease out some form of explanation by pointing to the fact that apparently Westside Legal on 13 July 2018 asked Parish Patience for documents from the Applicant’s file, and on the same day received documents which included the Department’s letter of 5 September 2017 to Ms Byers (see [8] above) which contained reference to the PID and was seen then by Westside Legal for the first time.
This is not an adequate explanation and it is not apparent to me how the Department’s letter of 5 September 2017 could support any reasonable explanation. The fact of the matter is that the PID had been advised to the Applicant’s previous lawyer by the letter dated 16 August 2017 (see [7] above) and the letter dated 5 September 2017 (see [8] above). By its letter dated 18 January 2018 to Parish Patience the Tribunal had confirmed the PID and its inclusion in Sch.1 to IMMI 17/015 and that therefore the Applicant was a “fast track applicant” (see [18] above), and the Applicant himself had acknowledged and referred to that fact in his statement forwarded to the Tribunal on 6 February 2018 (see [19] above). The Decision Record of the Tribunal itself referred to IMMI 17/015 and the PID (see [20[15]] above) and the initiating application for judicial review of the Tribunal’s decision filed in this Court on 16 March 2018 by Westside Legal also referred to IMMI 17/015 with reference to the PID. The principal solicitor of Westside Legal annexed a copy of the Decision Record of the Tribunal to his affidavit of 15 March 2018 in support of that initiating application.
In my view there is simply no proper explanation of why Westside Legal, having filed a challenge to the Tribunal’s decision in this Court on 16 March 2018, took until 13 July 2018 to request documents from Parish Patience nor is there any meaningful connection between that request and the failure to raise the proposed substantive Ground before Judge Street.
In relation to a failure to give an explanation to the Court, the position here is similar to that confronted by Charlesworth J in AAD16, where at [24] – [27] she stated:
[24] There are multiple considerations weighing against the grant of leave. Of considerable importance is the circumstance that the appellant was represented by a firm of solicitors and by counsel in the proceedings before the primary judge. The same firm of solicitors continues to represent the appellant on this appeal.
[25] Critically, the appellant has given no explanation as to why the matters now sought to be argued on the appeal were not agitated on the application for judicial review before the primary judge. It may be the case that consideration was given to advancing the arguments in the judicial review proceedings but a conscious decision made not to do so. It may be that the availability of the arguments was not considered by the appellant’s legal representatives at the time. The Court simply cannot know.
[26] Where (as here) it is argued that the appellant’s status as a failed asylum seeker weighs in favour of the grant of leave to raise a new argument, it is not unreasonable to expect the legal representatives of the appellant to adduce admissible evidence as to why the same critical stakes now urged upon the Court did not appear to inform their earlier decisions as to which arguments ought to be run at first instance and which arguments ought not to be run: AOL15 v Minister for Immigration & Border Protection [2018] FCA 979 at [24].
[27] In the absence of evidence, I am not prepared to infer that the appellant did not make a well informed decision not to advance the arguments previously. These are matters that the appellant and his legal advisers are in a position to depose to. No affidavit has been filed.
I also infer in the circumstances that the Applicant made a well-informed decision not to advance the proposed substantive Ground before Judge Street in the amended application and in my view it is now too late to resile from that position. It matters not that Judge Street was conducting a show cause hearing, which by r.44.12 of the FCC Rules is to be regarded as interlocutory.
Unreasonableness of Failure to Raise Earlier Proposed Substantive Ground
In my view the proposed substantive Ground was so relevant and so properly belonged to the proceeding before Judge Street that it should have been raised at that point of time and it was unreasonable in the circumstances not to raise it if it were to be raised. The Applicant had been asserting that he was not a “fast track applicant” since October 2017 (see [12] – [14] above). He continued to so assert before Judge Street (see [23] above) and it was at that point that all available arguments in support of that assertion should have been made. The Applicant, through his lawyers, must be taken to have known that he had been assigned the PID and that he was a subject of IMMI 17/015. The amended application considered by Judge Street impugned IMMI 17/015 insofar as it purported to specify the Applicant as a “fast track applicant”. That contention is closely related to the contention in the proposed substantive Ground that the PID specified in IMMI 17/015 did not have the effect of making the Applicant a fast track applicant. For whatever its legal worth, which will be considered below, the proposed substantive Ground stood full square at the time of the hearing before Judge Street and begged in the circumstances to be argued then if it were ever to be argued at all.
Accordingly, in my view the Applicant ought not now be able, some fourteen months after the decision of Judge Street and some seven months after the decision of the Full Court, to raise the proposed substantive Ground in this proceeding: see generally the decision of Flick J in Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375, where similarly to the present case the Applicant had been unsuccessful in the Federal Magistrates Court, the Federal Court and in an application for special leave to appeal to the High Court. The appellant in that case then challenged on a different ground of asserted jurisdictional error the decision of the Tribunal which had been earlier reviewed by those various Courts, but it was held that he could not do so by reason of Anshun estoppel in that the public interest in the certainty of administrative decision-making prevailed over permitting the appellant the freedom to raise the argument.
Prejudice to the Minister
There would be no actual or direct prejudice to the Minister if an extension of time were granted, but that is not enough to justify such an order: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. Further, “there is a clear public interest in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of, or have failed to exercise, their jurisdiction under statute” per Jessup J in MZABO v Minister for Immigration and Border Protection [2016] FCA 980 at [5]. As McHugh J said in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 [15] in relation to proceedings in which constitutional or prerogative writs are directed at the acts or decisions of public bodies or officials, “the public interest requires that there be an end to litigation about the efficacy of such acts or decisions”. To similar effect the Full Court comprised of Logan, Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at 247 [89] said:
[89]There is, moreover, a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at [62] per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J.
The Applicant needs an extension of time of some 18 months. He has not given a reasonable and adequate explanation or excuse for the delay and the extent of the delay in bringing the proposed substantive Application before the Court for determination. I consider that it is an abuse of process for him to seek to do so now after he has pursued the earlier proceeding before Judge Street up to the High Court of Australia. For the reasons given above I would refuse his application for an extension of time.
Proposed Substantive Ground Not Reasonably Arguable
In my view the proposed substantive Ground is not reasonably arguable and has no reasonable prospects of success.
First, I should follow (and I respectfully agree with) the opinion of the Full Court that nothing in the Act impedes or prohibits the Minister from giving a PID to a particular person, such as the Applicant, for the purposes of the instrument-making power in s.5(1AA) of the Act: see 515 [82] – [83] of the joint judgment and [35(a)] above.
Second, the evidence before me is fuller and clearer than that available to the Full Court: see [35(b)] above. It is now clear that:
a)the PID had been assigned to the Applicant on the day he arrived in Australia, 23 March 2013 (see [3] above);
b)the PID had been first advised to the Applicant through Rivergum Lawyers Pty Ltd by the Department’s letter dated 16 August 2017 (see [7] above); and
c)the Department’s letter of 5 September 2017 had confirmed the PID to Ms Byers (see [8] above). She had accepted the PID without objection and quoted it in her letter of 6 September 2017 lodging the TPV application (see [9] above).
It other words, it cannot now be maintained that the Applicant had not been allocated his PID prior to the Minister making IMMI 17/015 on 26 July 2017. I am conscious that this is an interlocutory decision. However, there is no reasonable prospect of relevant factual findings in this connection being made differently at a final hearing. The proposed substantive Ground is also vitiated because it is based on an incorrect factual assertion.
In my view the proposed substantive Ground would have no reasonable prospects of success at a final hearing if the extension application had been granted.
Conclusion
I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding and the application to do so will be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 22 September 2020
- AGLC
- SZTVU v Minister for Immigration [2020] FCCA 2607
- Case
- [2020] FCCA 2607
- Decision Date
CaseChat Overview and Summary
The applicant sought an eighteen-month extension of time to file his second application for judicial review. The proposed substantive ground for this new application asserted that the statutory instrument under which the applicant was classified as a "fast track review applicant" was invalid and did not apply to him. This new ground was substantially the same as a ground that had been refused leave to be relied upon by the Full Court of the Federal Court in an earlier decision.
The Court considered that the principle of finality of litigation weighed heavily against granting an extension of time. It was deemed unreasonable that the new proposed substantive ground had not been raised in the applicant's initial application for judicial review. Furthermore, the Court found that, in any event, the new proposed substantive ground did not have reasonable prospects of success.
Consequently, the application for an extension of time was refused.
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