Yao v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1000
Federal Circuit and Family Court of Australia
(DIVISION 2)
Yao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1000
File number: MLG 528 of 2019 Judgment of: JUDGE FORBES Date of judgment: 9 December 2022 Catchwords: MIGRATION – application for extension of time for judicial review of Tribunal decision – earlier application for review discontinued by applicant before hearing – new proceeding commenced in different registry of same court – statutory obligation to disclose earlier application at time of commencing new proceeding – whether second application is a new proceeding – whether disclosure of intentions to different registry is adequate compliance – failure to disclose earlier matter is jurisdictional and not curable – application for summary dismissal – proceeding has no reasonable prospect of success – proceeding dismissed Legislation: Migration Act 1958 (Cth), s 347, 477, 478, 486
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.13
Federal Circuit Court Rules 2001 (Cth), r 44.05
Cases cited: Cheney v Spooner (1929) 41 CLR 532
DZY17 v Minister for Home Affairs (2018) 267 FCR 673
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31
Forrest v Kelly (1991) 32 FCR 558
Singh & Anor v Minister for Immigration and Citizenship [2017] FCCA 223
TCWY v Minister for Immigration and Border Protection [2018] FCA 804
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 28 April 2022 Place: Melbourne Solicitor for the Applicant: In Person Solicitor for the First Respondent: Mr Creedon of the Australian Government Solicitor ORDERS
MLG 528 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIANPING YAO
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
9 December 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the application for an extension of time filed on 27 February 2019 is summarily dismissed.
2.The Applicant pay the costs of the First Respondent fixed at $3,930.
3.The name of the First Respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By an application filed on 27 February 2019 Mr Jianping Yao (the applicant) seeks an order for an extension of time pursuant to section 477 of the Migration Act 1958 (Cth) (‘the Act’) in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 20 July 2018. In its decision, the Tribunal found that it did not have jurisdiction to review a decision of the Minister’s delegate (the delegate) to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa (‘the visa’).
This is the applicant’s second application to this Court for judicial review in respect of the Tribunal decision. On 30 January 2019 the applicant filed an application for an extension of time to seek judicial review of the Tribunal’s decision. On that occasion the application was filed in Tasmania and was allocated the court reference number LNG2/2019. As will be explained, the applicant filed a notice of discontinuance in that matter on 26 February 2019, a day before filing the current proceedings in the Melbourne registry of this Court.
In its amended response to the current application the first respondent (Minister) seeks orders that the application for an extension of time be dismissed and that the applicant pay the Minister’s costs.
By an application in a proceeding filed by the Minister on 8 April 2022, the Minister now moves for summary dismissal of Mr Yao’s application on the grounds that it is incompetent by reason of s 486D(1) of the Act and because the applicant has no reasonable prospects of prosecuting the proceeding pursuant to Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’).
In short, the Minister contends that at the time of making his application commencing these proceedings the applicant failed to disclose to the Court that he had made an earlier application for judicial review of the Tribunal’s decision, a disclosure he was required to make by section 486D(1). By reason of that failure the Minister contends that the application is incompetent and that the application for an extension of time can have no reasonable prospects of success.
For the reasons set out below I have determined that the Minister’s application for summary dismissal must succeed. The applicant’s application is incompetent and will be dismissed.
BACKGROUND
Mr Yao is a Chinese citizen who applied for a student visa on 1 February 2018. He was not in Australia at the time the application was lodged. Although a migration agent was provided as the applicant’s contact email address, the visa application was made by Mr Yao.
In support of his visa application, Mr Yao provided the Department of Immigration and Border Protection (‘the Department’) with various documents, including a recent bank account balance, a health insurance policy certificate, a statement dated 1 February 2018, documents relating to his former education, identity documents and documents which attest to a property owned by the applicant in China.
On 9 February 2018, Mr Yao was notified that the delegate had refused his visa application on the grounds that it was not satisfied that he met the genuine temporary entrant criterion in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (‘the Regulations’). The delegate concluded, after weighing up the various factors that must be taken into account when assessing the genuine temporary entrant criterion, including the extent of Mr Yao’s personal ties to China, his potential circumstances in Australia, the value of the course to Mr Yao’s future and Mr Yao’s previous immigration history, that the applicant did not intend genuinely to stay temporarily in Australia.
Review by Tribunal
On 21 February 2018, the applicant lodged an application with the Tribunal for review of the delegate’s decision. The applicant continued to use a migration agent’s contact details as his contact details. In support of that application, Mr Yao provided the Tribunal with the delegate’s decision record and a document from the Department of Education and Training confirming his enrolment at the University of Tasmania.
On 28 June 2018, the Tribunal invited Mr Yao to comment on the validity of his application for review. In its letter, the Tribunal noted that at the time the applicant lodged the visa application on 1 February 2018, he was offshore. As such, the Tribunal raised a preliminary view that the review application was not a valid application, and invited Mr Yao to comment in writing, by 12 July 2018, as to whether a valid application had been made[1].
[1] Court Book (“CB”) 99-100
On 11 July 2018, the Tribunal received a response. In his response, Mr Yao stated that he relied upon the delegate’s visa refusal notification which stated that the ‘decision can be reviewed’ and that he had applied for a review within the specified timeframe. Mr Yao contended that he was not aware of Australian migration laws and regulations, and he expressed his frustration towards the delegate and the Tribunal for pushing him “to the gap of the law”.[2]
[2] CB, p 103
On 20 July 2018, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision. In its statement of reasons[3], the Tribunal observed that pursuant to s 347(2) of the Act, an application for review can only be made by a non-citizen who is in the ‘migration zone’ at the time of making the visa application.[4] The Tribunal held that for the delegate’s decision to be a Part-5 reviewable decision Mr Yao had to be in Australia at the time he lodged the visa application. As he was not, his visa application was not properly made and the Tribunal held that it had no jurisdiction to review the matter.
[3] CB, p 108-109
[4] CB, p 109
Application for Judicial Review
On 30 January 2019, Mr Yao filed an application for an extension of time to seek judicial review of the Tribunal’s decision. The application was made some 187 days outside the time specified by s 477(1) of the Act. The application was made in the Hobart registry of the (then) Federal Circuit Court (file number LNG2/2019). The notice of filing records that the proceeding was listed for a first directions hearing to be held on 1 March 2019[5].
[5] Affidavit of Thomas Creedon sworn 18 March 2022, Exhibit TPC-1
The applicant also filed an affidavit dated 30 January 2019 in support of his application for an extension of time and judicial review. In that affidavit[6], the applicant annexed a copy of the Tribunal’s decision and reasons as well as the Department’s decision of 9 February 2018. In his affidavit Mr Yao deposed, among other things, to having been deceived by his migration agent, claiming that the agent failed to inform him of the Tribunal’s decision.
[6] Creedon affidavit, TPC-1
On 13 February 2019, the applicant emailed the Court registry in Hobart. That email is reproduced in full below:
Dear case officer,
My name is Jianping YAO, I have currently lodged the application of my case (elodgment ID 684647) and received the lodgement stamping notification with my hearing information notice.
However, I have currently moved to Melbourne. Could I please change the hearing place to Melbourne?
If it could be possible, should I make a lodgement again?
Thanks.
Sincerely,
Jianping Yao[7]
[7] Affidavit of Mr Jianping Yao, affirmed 5 April 2022
On 15 February 2019, in response to the applicant’s email, an officer from the Tasmanian registry informed Mr Yao that because his case had already commenced, he would need to file an Application in a Case and a supporting affidavit requesting that the proceeding be transferred to Melbourne. Mr Yao was also cautioned by the registry that as the hearing of his substantive application was scheduled for 1 March 2019, he would need to complete the transfer application urgently.
On 22 February 2019, Mr Yao filed an Application in a Case seeking, inter alia, an order that the matter be transferred to the Melbourne registry of the Court. Paragraph 4 of the applicant’s application states:
“I have applied for the Federal Circuit Court to deal with my case. After careful consideration, I would like to apply for changing my hearing place to Melbourne. I live in Lancaster, Tasmania, It will be more convenient for me to go to Melbourne than Hobart. Besides, I am now seeking the legal advice and help, I believe that I can seek more perfect legal aid in Melbourne. Hence, I hope move the hearing to Melbourne. If there is a need, my friends in Melbourne will also help me.”
The Applicant also filed an affidavit which largely repeated the substance of the application itself. The applicant’s affidavit also annexed the Tribunal’s statement of decision and reasons as well as the Department’s refusal of the applicant’s visa.
The Application in a case was accepted for filing by the registry and it was listed for a hearing on 19 March 2019[8].
[8] Creedon affidavit, TPC-02
On 26 February 2019, the applicant filed a Notice of Discontinuance dated 25 February 2019[9] in the Hobart registry. By that notice the proceedings in LNG2/2019 were discontinued.
[9] Creedon affidavit, TPC-03
Application for Judicial Review in the Melbourne Registry
On 27 February 2019 the applicant filed an application in the Melbourne registry of the Court seeking an extension of time to apply for judicial review of the Tribunal’s decision made on 20 July 2018. The application was made in the form approved by rule 44.05 of the (then) Federal Circuit Court Rules 2001 (Cth). At the bottom of the application, Mr Yao notes his address for service in Australia as being in Newnham, Tasmania.
On page four of the approved pro forma application, under the heading ‘Other Court Proceedings’, the applicant was prompted to disclose if he had made a previous application to a court to review the Tribunal decision. In its terms the form included the following section for completion by the applicant:
Other Court Proceedings (This section must be completed if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958)
Person or persons who made each previous application: ………….
Court or courts to which each application was made: ………………
Commencement date of each previous application or applications: ……
File number of each application: ………………..
Outcome of each application: ……………………….
Mr Yao did not complete this section of the application.
In his application, as well as seeking an extension of time, Mr Yao also sought a final order that the decision of the Tribunal be quashed. The applicant sought to challenge both the Tribunal’s finding that it had no jurisdiction to review his application and the delegate’s finding that he did not meet the relevant student visa criteria.
On the same day, 27 February 2019, Mr Yao filed an affidavit in support of his application for an extension of time to apply for judicial review. This affidavit was also filed in the Melbourne Registry of the Court. The affidavit filed on 27 February 2019 was sworn by the applicant and witnessed by a justice of the peace located in Tasmania on 30 January 2019. It was the same affidavit the Applicant filed in support of his earlier application in Tasmania and unsurprisingly made no reference to the fact that the applicant had previously applied for judicial review of the Tribunal’s decision in the Hobart registry.
On 8 April 2019 the Minister filed a response. The Minister initially sought orders that the matter be listed for a ‘show cause’ hearing, that the application be dismissed and that the applicant pay the Minister’s costs of the proceeding. The Minister contended that Mr Yao had failed to raise an arguable case for the relief claimed, and that the decision under review was not affected by jurisdictional error.
On 30 March 2021 a registrar of the Court made procedural orders to prepare the matter for an extension of time hearing, including directing that the applicant file and serve any amended application, court book materials and written submissions at least 28 days before the hearing. The Minister was directed to file a court book in hard copy and electronic format and was afforded an opportunity to file and serve written submissions.
On 2 July 2021 the applicant filed a further affidavit annexing a copy of his enrolment offer for a Master of Computing from the University of Tasmania.
On 31 January 2022 the applicant filed a further affidavit with the Court. In that affidavit he deposed that he is currently studying for a Master’s Degree in Research at the University of Tasmania, that he is a genuine student, that he has been a victim of his migration agent’s misconduct in messing up his application for the visa and that the migration agent has since had his registration cancelled.
On 24 February 2022, the Minister filed an outline of submissions, contending, inter alia, that the Court should not exercise its discretion to grant an extension of time, and that the Tribunal decision was not effected by error. The Minister submitted that the Tribunal had no jurisdiction to entertain the application for review of the delegate’s decision because the applicant was offshore and there was no evidence of any fraud by the applicant’s representative.
On 3 March 2022, the Minister filed an amended response to the application, again seeking that the application be dismissed, but this time on the ground that the application was incompetent and had no reasonable prospects of success. In particularising that ground, the Minister contends that the applicant had not complied with section 486D(1) of the Act in that when making the present application he failed to disclose to the Court the details of an earlier court application for review of the same Tribunal decision. To that end the Minister relies on the applicant’s failure to disclose the application filed in the Tasmanian registry on 30 January 2018 for review of the same Tribunal decision, matter no. LNG2 of 2019, the proceeding which he discontinued on 26 February 2019.
On 9 March 2022, immediately prior to the Final Hearing of this matter, the Minister’s solicitor, Mr Creedon, filed a further affidavit wherein he deposed to various matters relating to the earlier and current applications filed by Mr Yao. Mr Creedon’s affidavit exhibited:
(a)an application dated 30 January 2019 made by Mr Yao for judicial review and an extension of time to seek judicial review of the Tribunal decision and a supporting affidavit also dated 30 January 2019 (TPC-1). That application and supporting affidavit were filed in the Hobart Registry of the Court;
(b)a Notice of Discontinuance signed and dated 25 February 2019 which was lodged with the Court’s Hobart Registry at 10.49am on 26 February and accepted for filing at 1.23pm that day. (TPC-2); and
(c)the application initiating the present proceedings which was signed and dated by the Applicant on 27 February 2019 and which was electronically lodged at the Melbourne registry of the Court on that day at 12.11pm and accepted for filing at 3.34pm. That application was accompanied by a handwritten supporting affidavit dated 30 January 2019 which (as noted earlier) was the same affidavit which accompanied the application filed in the Hobart Registry on 30 January 2019 (TPC-3).
Hearing on 9 March 2022
The matter was initially listed for Hearing on 9 March 2022. On that occasion, Mr Yao was self-represented and Mr Creedon appeared on behalf of the Minister.
As mentioned, a few days prior to this Hearing the Minister had filed an Amended Response to the application and the affidavit of Mr Creedon was filed on the morning of the hearing.
As anticipated, Mr Creedon informed the court that the Minister challenged the competency of Mr Yao’s application for judicial review in light of the requirement in s 486D that an applicant disclose, when proceedings are commenced, any previous proceedings in this or any other court in relation to the decision under review. Mr Creedon submitted that as there had been no disclosure of the earlier proceeding by Mr Yao, this application should be summarily dismissed.
In light of the new and recent information presented by the Minister, I made orders granting the Minister leave to file and serve any amended application seeking summary dismissal of Mr Yao’s application, an affidavit in support of the application and an outline of submissions explaining the basis of its application for summary dismissal. Further, the applicant was ordered to file any affidavit evidence in response to the Minister’s application and any outline of submissions opposing the application. The hearing of any application for summary dismissal was listed for 28 April 2022.
On 18 March 2022 the Minister filed an Application in a Proceeding, accompanied by an affidavit affirmed by Mr Thomas Creedon the same day, seeking that the proceeding be dismissed on the following grounds:
(d)The application is incompetent by reason of s 486D(1) of the Act; and
(e)The applicant has no reasonable prospects of successfully prosecuting the proceeding pursuant to r 13.13(a) of the Rules.
On 21 March 2022 the Minister filed an outline of submissions in support of its application for summary dismissal. The Minister submitted, inter alia, that:
(a)Section 486D(1) of the Act makes clear that a person must not commence a proceeding in the Federal Circuit and Family Court of Australia in relation to a Tribunal decision, unless that person has disclosed to the Court when commencing the proceeding any judicial review proceeding already brought in this Court, or any other court, in relation to that Tribunal decision;
(b)Mr Yao failed to disclose the judicial review application he made in the Hobart registry, as required by s 486D(1) of the Act, both in his application for an extension of time filed on 27 February 2019 and in his supporting affidavit;
(c)Section 486D imposes a jurisdictional precondition to the commencement of proceedings. An application which does not disclose a previous judicial review proceeding is ‘incompetent’ and cannot be cured by amendment[10]; and
(d)Therefore, Mr Yao’s present application is incompetent, and the application for an extension of time has no prospects of success and should be summarily dismissed.
[10] TCWY v Minister for Immigration and Border Protection [2018] FCA 804 at [24]-[26] (Perry J); cited with approval by the Full Court of the Federal court in DZY17 v Minister for Home Affairs (2018) 267 FCR 673 at [28]-[29] (Besanko, Griffiths and White JJ)
On 6 April 2022, the applicant filed response to the Minister’s summary dismissal application. In that response the applicant contends that the proceeding “cannot be dismissed” and that the Minister’s “accusation” regarding s 486D(1) of the Act may be inappropriate and the case law relied upon by the Minister may be irrelevant. The applicant also stated that he has reasonable prospects of successfully prosecuting the current proceeding, reiterating his general grounds for review as articulated in his initiating application, namely that he is a victim of his migration agent’s conduct, that he is a genuine student and that there is jurisdictional error in the Tribunal’s decision.
Mr Yao also filed an affidavit in support of his response. In this affidavit, Mr Yao again attributes blame to his former migration agent, states that he is a genuine student and contends that the Tribunal made a jurisdictional error in its decision. He asserts that the Minister is incorrect in finding that he “violated section 486D(1)” of the Act and argues that the authorities relied upon by the Minister in support of its application for summary dismissal, including TCWY v Minister for Immigration and Border Protection, are different to the facts in his case and should not be relied upon.[11] Mr Yao annexed his email correspondence with the Federal Court registry in Tasmania.
[11] Affidavit of Mr Jianping Yao, affirmed 5 April 2022
On 13 April 2022 Mr Yao filed an outline of submissions in response to the Minister’s interlocutory application. Save for a brief chronology pertaining to the applicant’s courses at the University of Tasmania and when a Freedom of Information request was made, the applicant’s outline of submissions largely repeat the issues raised in his response and affidavit filed on 6 April 2022.
Hearing on 28 April 2022
The Minister’s application for summary dismissal came before me on 28 April 2022. Mr Yao appeared in person and was assisted by a Mandarin Interpreter, and Mr Creedon appeared for the Minister.
Both parties relied on their written submissions and developed those orally at the hearing.
Minister’s Submissions
The Minister submits that the application for judicial review is incompetent because the applicant failed to disclose the previous application in the Hobart registry in which he sought judicial review in relation to the same Tribunal decision. Section 486D(1) of the Act requires a person who has made a previous application to disclose that application in any subsequent application, in this Court or any other court. Mr Creedon submitted that the requirement to disclose was engaged at the time the application was made in the Melbourne registry on 27 February 2019 and that non-compliance by an applicant “is fatal to the case being heard in the court’s jurisdiction”.[12]
[12] Transcript of Hearing on 28 April 2022, p 6
The Minister submitted that the facts in the present case are analogous to those considered by the Full Court of the Federal Court in DZY17 v Minister for Home Affairs[13]. In DZY17 the applicant applied for judicial review in the Perth registry of this Court and then filed a notice of discontinuance before the application had been heard and determined. On the same day that the applicant discontinued the proceedings in Perth, she made a fresh application for judicial review in the Melbourne registry of the Court, without disclosing the previous proceeding. The Full Court affirmed that the disclosure requirements under s 486 are engaged at the time the application is made and non-disclosure cannot be subsequently rectified. Therefore, by reason of the applicant’s failure to comply with s 486D, the Full Court held that the application was properly dismissed by the primary judge.
[13] DZY17 v Minister for Home Affairs [2018] FCAFC 196
Mr Creedon submitted that Mr Yao’s communications with the Hobart registry about transferring his matter to Melbourne could not be regarded as satisfying the disclosure requirements of s 486D. In support of that submission, the Minister referred to an earlier decision of this court in Singh & Anor v Minister for Immigration and Citizenship[14], where it was held that disclosure must be made in writing at the time of application and that an oral disclosure to registry staff would not satisfy the s 486D requirements.
[14] Singh & Anor v Minister for Immigration and Citizenship [2017] FCCA 223
The Minister emphasised that the Court rules provide a prescribed form for judicial review applications, which asks an applicant a specific question about whether previous proceedings have been initiated in this or any other court, in relation to the decision under review. The Minister submitted that the purpose of s 486D is to require candour in applicants and that the wording in s 486D clearly states that disclosure must be made at the time proceedings are commenced.
Further, the Minister submits that the Court does not have discretion in matters pertaining to s 486D. That is, the Court must determine a binary question, namely whether disclosure was or was not made by Mr Yao at the time of making the second application.
Applicant’s submissions
To assist with his oral submissions, Mr Yao relied upon a prepared a set of notes. At my request he agreed to forward a copy of those notes to my chambers and I have read them.
Mr Yao submits that he voluntarily disclosed to the Court’s Hobart registry that he wanted his application transferred to Melbourne. The applicant says that prior to applying in the Melbourne registry, he enquired with the Tasmanian registry about how to transfer the proceeding to Melbourne and that based on advice received he subsequently filed an application in a proceeding and an affidavit, both which stated that he “would like to apply for changing my hearing place to Melbourne”.
Mr Yao accepts that he filed a Notice of Discontinuance in the Hobart registry but submitted that he was advised by the registry at the time to do so, although here is no objective evidence of such advice having been given. The applicant says that he assumed that the Federal Circuit Court (as it was at the time) was a single Federal organisation, and not a set of independent district courts. As such, he assumed that the disclosure of his intentions to the Hobart registry would suffice as disclosure in the Melbourne registry. Thus, the applicant invited the Court to find that the disclosure made to the Court in the Hobart registry about his intention to commence proceedings in Melbourne satisfied the requirement of s 486D.
Mr Yao sought to distinguish the circumstances in his case from those considered by the Full Court in DZY17. In that case, the applicant did not disclose anything to the Perth registry about the proposed change in locations, whereas Mr Yao contends that he had made disclosures to the Hobart registry.
The applicant also sought to draw the Court’s attention to the purpose of s 486D, that being “to prevent a multitude of different proceedings in different courts being pursued which challenges the same administrative decisions” and to assist the courts in identifying “matters which have already been the subject of a judicial determination”. To that end, Mr Yao also sought to distinguish his circumstances from those in TCWY v Minister for Immigration & Border Protection, a case where an applicant contravened s 486D by failing to disclose the outcome of an earlier judicial review application. Mr Yao contends that unlike TCWY his application in the Hobart registry did not proceed to a final hearing and thus his application in Melbourne should not be seen as undermining the purpose of the legislation.
CONSIDERATION
Determination of the Minister’s application for summary dismissal turns on the construction and operation of s 486D, which states:
Disclosing other judicial review proceedings
(1)A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(2)A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(3)A person must not commence a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(4)Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
judicial review proceeding, in relation to a tribunal decision, means:
(a)a proceeding in the Federal Circuit Court in relation to the tribunal decision; or
(b)a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c)a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review:
(a) by the Tribunal under Part 5 or 7 or section 500; or
(b) by the Immigration Assessment Authority under Part 7AA.
Section 486D falls within Part 8A of the Act. That part of the Act imposes various restrictions on court proceedings, including as to time limits (486A), intervention by the Attorney-General (486AA), consolidation of proceedings (s486B), the identity of persons who may commence or continue proceedings (486C) and disclosure of previous judicial review proceedings (486D).
Relevantly, a person must not commence a “proceeding” in the Federal Circuit Court “in relation to a tribunal decision” unless “when commencing the proceeding” the person discloses to the court “any judicial review proceeding already brought” by that person in that or any other court.
Section 486D is plainly engaged at the time when an applicant “commences” a “proceeding” in the court in relation to a Tribunal decision. It is at that time, namely at the commencement of the proceeding, that the applicant must disclose to the court any judicial review proceeding that he or she has already brought in the court or another court in relation to the same tribunal decision.
The Act does not define the expression “proceeding” nor does it illuminate the notion of when a proceeding is commenced. However s 486D defines a “judicial review proceeding” to mean, in relation to a tribunal decision, “a proceeding …in relation to the tribunal decision” and is obviously referable to an application for judicial review.
As to what is a “proceeding” for the purposes of s 486D, I am satisfied that it should be given its ordinary legal meaning, consistent with its statutory context. At the relevant time, section 5 of the Federal Circuit Court of Australia Act 1999 (Cth) defined a proceeding to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal”. This is consistent with the historic notion of a civil proceeding as being an application or legal step taken by a party to move a court for its intervention or action according to law[15].
[15] Cheney v Spooner (1929) 41 CLR 532 (at 536-537, 538-539); also Forrest v Kelly (1991) 32 FCR 558 (from 568); Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 (at [36])
At the relevant time, an application for a remedy to be granted in the exercise of the court’s jurisdiction under s 476 of the Act in relation to a tribunal decision was required to be made in accordance with the approved form[16]. By his application to the court made on the prescribed form filed in the Melbourne registry on 27 February 2019 the applicant commenced a proceeding seeking to invoke the court’s jurisdiction in relation to the tribunal decision made on 20 July 2018. I am satisfied that step initiated a different proceeding to the one the applicant commenced in Hobart on 30 January 2019 and which he chose to discontinue on 26 February 2019. Both were proceedings in relation to the same Tribunal decision, but they were distinct proceedings, each commenced separately and at different times. The application to the Court in its Melbourne registry was made only after the earlier application in Hobart had been discontinued.
[16] Rule 44.04 and 44.05 of the Federal Circuit Court Rules 2001
In his application to commence the current proceedings the applicant did not disclose that he had made an earlier application for judicial review or that such application had been discontinued. The application form filed by Mr Yao on 27 February 2019 to commence the current proceedings expressly prompted him to disclose any other application or applications which have been made to the Court to review the decision and the form specifically identified s 486D of the Act. That part of the form was left blank and was not completed by Mr Yao.
The operative requirements of s 486D have been construed as imposing a jurisdictional precondition which must be met at the time a proceeding is commenced. Failure to satisfy that mandatory requirement renders an application for judicial review incompetent. Furthermore, non-compliance with this precondition is incapable of being cured by the filing of an amended application. The Court has no jurisdiction to relieve an applicant of a failure to make such disclosure[17].
[17] TCWY v Minister for Immigration and Border Protection(2018) 231 FCR 455; [2018] FCA 804, [26]-[30] (Perry J); DZY17 v Minister for Home Affairs (2018) 267 FCR 673; [2018] FCAFC 196, [29] (Besanko, Griffiths and White JJ).
The disclosure requirements imposed by s 486D operate as an inflexible rule applying at the time the proceeding is commenced. Parliament did not intend that the courts to which s 486D applies would entertain proceedings commenced in violation of the disclosure requirement.[18] To construe the provision otherwise would be to undermine the prohibition on a person commencing a proceeding.[19]
[18] TCWY v Minister for Immigration and Border Protection(2018) 231 FCR 455 at [30]
[19] Ibid
I reject Mr Yao’s assertion that he satisfied the s 486D disclosure requirement by informing the Hobart registry that he wanted to move the matter to Melbourne. He had not commenced the current proceeding when he expressed that intention. In any event, the applicant chose to discontinue the Hobart proceeding, rather than prosecute his application for it to be transferred. His application filed in the Melbourne registry commenced a new proceeding (albeit seeking the same relief in relation to the same Tribunal decision) and thus engaged the obligation to disclose the previous application.
Further, I disagree with Mr Yao’s contention that TCWY is materially different from the facts in his case. It is not to the point that his previous application to the Court was discontinued and not substantively determined. It is the fact of having brought an earlier judicial review proceeding which must be disclosed, not whether the application was substantively determined. This issue was discussed by the Full Court in DZY17 at [33]-[41] where the Court held that:
The disclosure requirements imposed by ss 486D(1), (2) and (3) operate at the time when a person is commencing a proceeding in a relevant Court. The required disclosure is to the Court. Moreover, the subject of the disclosure requirement is “any judicial review proceeding already brought by the person in that or any other court in relation to” the challenged decision. Thus, in their very terms, the focus of the disclosure requirement in each of the three relevant provisions in s 486D is on the question whether the person has already brought a judicial review proceeding in relation to the challenged tribunal decision. In other words, it is the fact of having brought an earlier judicial review proceeding which much be disclosed, and not the outcome of any such proceeding. [33]
The text of s 486D focusses on the bringing of a proceeding which seeks the exercise of jurisdiction, not its outcome. The obligation to disclose an earlier application at the time of commencing a later proceeding is engaged irrespective of the outcome of the first application. It is immaterial whether the initial application was heard and determined or discontinued.
In TCWY Perry J stated at [32] that s 486D was intended to require applicants “to be candid with the Court” in order to address the problem of “the repeated bringing of judicial review proceedings”, as referred to in the extrinsic materials accompanying the enactment of s 486D in 2005. In DZY17 the Full Court considered her Honour’s reasoning in TCWY to have been clear, comprehensive and plainly correct as to the proper construction of s 486D(1).
DISPOSITION
When commencing the current proceeding the applicant failed to disclose the fact of his earlier application for judicial review. It must follow that the present application is incompetent and, for that reason, the application for an extension of time has no reasonable prospects of success.
For the reasons set out above I will grant the Minister the relief sought in its application dated 18 March 2022. Accordingly the proceeding will be dismissed and the applicant should pay the first respondent’s costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Nada Govedarica
Dated: 9 December 2022
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