FEDERAL COURT OF AUSTRALIA

DZY17 v Minister for Home Affairs [2018] FCAFC 196

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Home Affairs.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicant seeks leave to appeal from a judgment and orders dated 16 July 2018 of the Federal Circuit Court of Australia (FCCA). Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal and any subsequent appeal were listed for hearing together.

2    Before applying the well-established principles which guide the determination of an application for leave to appeal (see Décor Corporation Pty Ltd v Dart Industries [1991] FCA 844; 33 FCR 397 (Décor) at 398-399) the background facts should be set out.

Summary of background facts

3    The applicant is a citizen of Thailand. She arrived in Australia in October 2003 holding a student visa. She has a lengthy immigration history the details of which are set out in the decision dated 15 August 2017 of the Administrative Appeals Tribunal (AAT), in which the AAT affirmed the delegate’s decision to refuse the applicant a protection visa.

The FCCA proceedings

4    The applicant filed two judicial review applications in the FCCA in respect of the AAT’s decision dated 15 August 2017. On 25 August 2017, she filed an originating application in the Perth Registry of the FCCA in which she sought judicial review of that decision (the Perth application).

5    On 5 September 2017 the applicant filed a notice of discontinuance in respect of the Perth application. She did so online.

6    On the same day (i.e. 5 September 2017), the applicant filed a separate originating application in the Melbourne Registry of the FCCA in which she sought judicial review of the same AAT decision dated 15 August 2017 (the Melbourne application). The Perth application was not disclosed by the applicant in her Melbourne application.

7    At the subsequent hearing of the Melbourne application in the FCCA, the applicant filed an affidavit and also gave oral evidence concerning the circumstances surrounding her discontinuance of the Perth application. She said that she did this for personal reasons, which she subsequently elaborated upon in her oral evidence as being a reference to the fact that she could not move to Perth.

8    The respondent Minister contended that the Melbourne application was incompetent because of the operation of s 486D(1) of the Migration Act 1958 (Cth) (the Act). It is desirable to set out the entirety of s 486D:

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.

9    The Minister’s contention was accepted by the primary judge, whose reasons for judgment are reported as DZY17 v Minister for Immigration and Border Protection [2018] FCCA 1987. The FCCA declared that the Melbourne application was incompetent. The FCCA also ordered that, to the extent necessary, any application to set aside the notice of discontinuance in respect of the Perth application should be dismissed. The applicant was ordered to pay the Minister’s costs.

10    It is these orders which give rise to the application for leave to appeal.

11    The primary judge’s reasons for judgment may be summarised as follows. First, there was no dispute that the applicant made no reference to the Perth application in the Melbourne application (Reasons [14]).

12    Secondly, the primary judge cited Singh v Minister for Immigration and Border Protection [2017] FCCA 223 (Singh) for the proposition that s 486D(1) of the Act imposes a jurisdictional precondition to the commencement of proceedings and that non-compliance with that provision means that the FCCA lacks jurisdiction (Reasons [15]-[16]).

13    Thirdly, the primary judge referred to Perry J’s decision in TCWY v Minister for Immigration and Border Protection [2018] FCA 804 (TCWY) and her Honour’s rejection at [27]-[28] of the applicant’s contention in that case that a series of decisions in the FCCA (or its predecessor, the Federal Magistrates Court) were wrongly decided in holding that s 486D(1) imposed a jurisdictional precondition to the commencement of proceedings and that a failure to comply with the disclosure requirement meant that the FCCA lacked jurisdiction. The decisions included Singh, MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296 and SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241. Although Perry J was dealing with s 486D(2) of the Act, which operated with reference to the Federal Court of Australia, her Honour considered that it should be construed and applied in the same manner as s 486D(1), which operates by reference to the FCCA. Her Honour 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.

14    The primary judge also made reference to Perry J’s observations in TCWY at [33] that the potential harshness of this construction of s 486D is mitigated by the fact that the applicant may make a fresh and competent application which complies with the statutory requirement. In other words, a failure to comply with s 486D does not bar separate proceedings being instituted, however, the applicant must comply with that provision.

15    At [20], the primary judge then proceeded to consider the applicant’s alternative argument that the Melbourne application should be viewed as an application to set aside the notice of discontinuance filed on 5 September 2017 in respect of the Perth application. If granted, the primary judge said that this would have had the effect of reinstating the Perth application.

16    For the following reasons, the primary judge rejected the applicant’s alternative argument. The FCCA had an implied power to reinstate a proceeding in order to prevent an abuse of process of the Court and to protect the integrity of its processes, but the power is not available for any reason beyond correcting an abuse of process (citing Chen v Monash University [2016] FCAFC 66; 244 FCR 424 (Chen) at [46]).

17    The primary judge noted at [26] that, in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (Moussa), Perram J stated at [13] that a notice of discontinuance could be set aside if it were shown that its filing constituted an abuse of process or was procured by fraud or duress. His Honour added that this jurisdiction operated to avoid substantial injustice, but that the power to set aside the notice of discontinuance is not engaged “where a party knowingly and voluntarily files a notice of discontinuance”.

18    The primary judge accepted the applicant’s evidence that she knowingly and voluntarily filed the notice of discontinuance and found that nothing she had said brought her case within the principles summarised above relating to abuse of process, fraud or duress.

19    Accordingly, on the assumption that the applicant applied to set aside the notice of discontinuance, the primary judge dismissed any such application.

The applicant’s submissions summarised

20    The three proposed grounds of appeal are (without alteration):

1.    The Federal Circuit Court fell into error by misapplying the law in respect of s486D of the Migration Act 1958 (Cth).

2.    The Federal Circuit Court failed to apply the Court decision in SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170

3.     The Federal Circuit Court fail to apply the Court decision in AGX16 v Minister for Immigration & Anor [2016] FCCA 2445

21    The applicant’s submissions may be summarised as follows. The applicant submitted that although s 486D imposed a disclosure requirement, non-compliance did not mandate that the later application be dismissed, relying upon Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky). She submitted that, while the purpose of s 486D is to prevent multiple judicial proceedings against the same decision, this did not require invalidation of any judicial review proceeding in which there is a failure to disclose the existence of earlier proceedings seeking review of the same decision. The applicant submitted that this purpose can still be achieved if the Court retains discretion as to whether to stay such proceedings as an abuse of process.

22    The applicant submitted that decisions of the FCCA or its predecessor Court were distinguishable because they involved factors which would have led the Court in any event to not allow a second application for review to proceed on discretionary grounds, such as delay, failure diligently to prosecute later proceedings or preliminary assessment of merits.

23    The applicant also submitted that the Explanatory Memorandum to the relevant Bill did not suggest that non-disclosure required invalidation of the subsequent proceeding, nor did the Minister’s second reading speech.

24    As to proposed grounds 2 and 3, the applicant contended that the FCCA erred in not permitting her to withdraw the notice of discontinuance in respect of the Perth application and in not following both SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 (SZFOG) and the FCCA’s decision in AGX16 v Minister for Immigration and Border Protection [2016] FCCA 2445 (AGX16). She contended that Chen was distinguishable on its facts, largely because that was a case where there were factors which would have resulted with the application failing in any event. The applicant emphasised that she represented herself and did not appreciate the full implications of filing a notice of discontinuance. She contended that the FCCA erred in simply acting on the basis that her filing of the notice of discontinuance was a deliberate and informed act.

The Minister’s submissions

25    It is unnecessary to summarise the Minister’s submissions as they are substantially reflected in the reasons below as to why leave to appeal should be refused.

Consideration and determination

26    Applying the well-known approach in Décor, the first issue is whether the FCCA’s decision is attended by sufficient doubt.

27    As to the first of the proposed grounds of appeal, it must necessarily fail if Perry J’s reasoning in TCWY is correct and applies to the circumstances here. As noted above, the primary judge here cited and applied that reasoning to s 486D(1) in circumstances where s 486D(2) is in substantially similar terms and it was that provision which arose in TCWY (it might be noted that s 486D(3) is also in substantially similar terms and applies to a proceeding in the High Court seeking the exercise of that Court’s original jurisdiction in relation to a tribunal decision). The primary judge was bound to follow TCWY unless it was distinguishable.

28    It is well to set out [27] to [34] of TCWY, in which Perry J explained, at some length, why she rejected the applicant’s contention in that case that the construction of s 486D(1) adopted in the series of cases referred to in [13] above was incorrect:

27.    The applicant contended that these decisions were wrongly decided and should be overruled. In his submission, the relevant question was whether Parliament intended proceedings which did not comply with the provision be incompetent in line with the principles of construction articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky). Specifically, in Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ considered that:

93.      … a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.… In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

28.    I accept that the principles in Project Blue Sky apply by analogy to the question of statutory construction here, albeit that the question here is whether the proceeding is competent rather than “invalid”. However, in my view, the decisions of the FCC and the FMC correctly construed subs 486D(1) in line with these principles as imposing a jurisdictional precondition which must be met at the time that the proceeding is commenced. As such, subs 486D(2), which applies to the Federal Court but is otherwise in the same terms, should be construed in the same way.

29.    First, this construction accords with the text and structure of the provision which is expressed as a prohibition upon a person commencing a proceeding “unless” the person “when commencing the proceeding” makes the required disclosure. As such, the provision is expressed as an inflexible rule applying at the time the proceeding is commenced. There is no express conferral of any discretion on a court to relieve a person of the requirement to make the disclosure when commencing the proceeding, whether by way of granting leave to amend the initiating process or otherwise; nor does the language suggest that any such discretion should be implied. In this regard, as Hayne, Heydon, Crennan and Kiefel JJ explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention.”

30.    Secondly, in expressing the requirement in s 486D as a prohibition on a person commencing a proceeding, it is plain that the Parliament did not intend that the courts to which the section applies would entertain proceedings commenced in violation of the disclosure requirement. To construe the provision otherwise would be to undermine the prohibition. As such the requirement can be described as a jurisdictional precondition with the consequence that a failure to comply with the requirement renders the proceeding incompetent.

31.    Thirdly, s 486D appears in Part 8A (ss 486A-486D). That Part bears the heading “Restrictions on court proceedings” suggesting that the provisions within the Part were concerned with imposing restrictions on court proceedings: see subs 13(2)(d) of the Acts Interpretation Act 1901 (Cth) providing that any heading to a part constitutes part of an Act. Furthermore, within Part 8A, the Parliament has been careful to identify those circumstances in which it intended to allow for the possibility that the restrictions imposed by Part 8A might be lifted, and those where it did not. Thus some provisions in Part 8A impose restrictions together with a mechanism by which the restriction may be lifted, while other provisions impose restrictions in unqualified terms. For example, subs 486A(1) imposes a time limit within which applications must be made to the High Court subject to a discretion to extend time under subs 486A(2): see also e.g. subs 486B(2) prohibiting the consolidation of migration proceedings unless the Court is satisfied of certain matters. On the other hand, there is an unqualified prohibition on representative or class actions under subs 486B(4)(a), and unqualified restrictions are imposed on the classes of persons who may commence or continue proceedings in the FCC or Federal Court by s 486C.

32.    Fourthly, as the applicant accepted, the purpose of s 486D is to prevent a multitude of different proceedings in different courts being pursued which challenge the same administrative decisions. As Smith FM held in SZKUT at [14], the jurisdictional nature of s 486D is confirmed by the extrinsic materials which, in enacting s 486D of the Act in 2005, “attempted to meet a problem faced by the Courts arising from the repeated bringing of judicial review proceedings. Section 486D was intended to require applicants to be candid with the Court in that respect, at the time when they initiated their new proceeding” (referring to the Migration Litigation Reform Bill 2005, Explanatory Memorandum (HR) (Explanatory Memorandum): see further the Explanatory Memorandum General Outline). By such means, the Parliament sought to assist the courts and the Minister in identifying applications which have already been the subject of proceedings for judicial review and to discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia: Explanatory Memorandum at [51].

33.    Furthermore, while the applicant submitted that a construction of the provision as imposing an incurable prohibition was unlikely given the “inconvenience writ large” that would result from such a construction, that submission fails to take into account that the applicant may make a fresh and competent application which complies with the statutory requirement. A failure to comply with the disclosure requirement is not, in other words, a bar to further proceedings being instituted which comply with s 486D. Furthermore as indicated by the extrinsic material, Parliament’s object was to improve the overall efficiency of migration litigation amid concerns as to large increases in the number of migration matters in the federal courts and high levels of unmeritorious migration litigation. It can readily be understood that overall, greater efficiencies are likely to be achieved by the disclosure of all other judicial review proceedings from the outset rather than by ad hoc disclosure later in the proceedings when significant resources may already have been expended in defending a proceeding that may, for example, constitute an abuse of process.

34.    For these reasons, I agree that the construction of s 486D adopted by the FCC and FMC in the decisions relied on by the Minister is correct. It follows that the fact that the Minister appears to have known of the first judicial review application from the outset is irrelevant, contrary to the applicant’s submission. It also follows that the application must be dismissed by reason of the failure to comply with s 486D(2) of the Act when the proceeding was commenced and the application for leave to amend must be refused.

29    Her Honour’s reasoning is clear and comprehensive. Moreover, in our respectful view, it is plainly correct and applies equally to the proper construction of s 486D(1) of the Act. The applicant’s contention to the contrary is not sufficiently compelling to warrant leave being granted to argue that TCWY is wrong.

30    During the course of the hearing, the Court raised the question whether the reasoning in TCWY applied to the circumstances here where there had been no judicial consideration or determination of the merits of the Perth application. In TCWY, the earlier proceeding which was not disclosed was a judicial review proceeding which had been commenced by the applicant and had been determined adversely to her by Robertson J in TCWY v Minister for Immigration and Border Protection [2017] FCA 1276.

31    The circumstances are different here because the Perth application was never heard and determined. Indeed, as noted above, it was discontinued on the very day that the applicant filed the Melbourne application. The issue then arises as to whether this difference is relevant and significant, so as to distinguish Perry J’s decision in TCWY. For the following reasons, however, we do not consider that there is a sufficient basis to grant leave to appeal on this issue. That is because, in short, her Honour’s reasoning applies notwithstanding this different circumstance.

32    Section 486D was inserted into the Act by the Migration Litigation Reform Act 2005 (Cth). This provision commenced on 1 December 2005.

33    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. Having made such a disclosure, it would then be a matter for the second judicial review Court to determine whether or not the bringing of the later judicial review proceeding constitutes, for example, an abuse of process by reference to the bringing of the earlier proceeding. The disclosure requirements therefore operate to facilitate effective case management by the second judicial review Court.

34    The text of s 486D does not indicate that the disclosure obligation only arises where a previous judicial review application brought by the person has been finalised or determined, whether that has occurred as a result of the person having filed a notice of discontinuance or the application having been heard and determined by the relevant Court. Such matters might, however, be relevant to a determination as to whether or not the bringing of the second judicial review application is, for example, an abuse of process.

35    This construction is further supported by the definition of “judicial review proceeding” in s 486D(5) and, in particular, the references in (b) and (c) thereof to such a proceeding meaning “a proceeding…seeking the exercise of the court’s original jurisdiction…”. The focus is on the bringing of a proceeding which seeks the exercise of jurisdiction, not its outcome. The absence of the word “seeking” in s 486D(5)(a) does not derogate from this consideration, but simply reflects the different character and jurisdiction of the FCCA in the hierarchy of Federal courts.

36    The extrinsic materials are not determinative in construing s 486D. Indeed, perhaps not unusually, the materials are somewhat equivocal. In general, however, they tend to support the construction set out above because of the emphasis given to the purpose of the amendments being to discourage applicants from attempting to re-litigate matters as a way of delaying their removal from Australia. To the extent that parts of the materials are arguably inconsistent with that construction, the clear text of s 486D cannot be displaced, with particular reference to the central notion of disclosing any judicial review proceeding already brought.

37    The explanatory memorandum to the Migration Litigation Reform Bill 2005 (Cth) at [51] contains the following explanation with reference to s 486D:

This item inserts a new section 486D to require applicants, when commencing any proceeding in the FMC, Federal Court or High Court in relation to a tribunal decision (as defined in subsection 486D(5)) to disclose details of any previous application for judicial review in any court in relation to that decision. The provision is designed to assist the courts to identify applications which have already been the subject of proceedings for judicial review of tribunal decisions and discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia.

38    In his second reading speech introducing the proposed amendments on 10 March 2005, the then Attorney-General referred to the purpose of the amendments being “to improve the overall efficiency of migration litigation” and that the amendments reflected the government’s concern “about the high volume of migration cases, unmeritorious litigation and delays which are impacting on the federal courts and the migration system as a whole”. He referred to what he described as “the very large proportion of unsuccessful migration cases” as being “a strong indicator that some unsuccessful visa applicants are using judicial review inappropriately to prolong their stay in Australia”. Against that background, the Attorney-General then said:

Identical grounds for relief in the High Court and Federal Magistrates Court will assist the courts to quickly identify applicants who are seeking to re-litigate matters that have already been the subject of judicial consideration. A complementary reform in the bill requires the disclosure by applicants of any prior judicial review applications in relation to the same migration decision.

39    The reference in the above extract to re-litigating matters “that have already been the subject of judicial consideration” might suggest that the disclosure obligation only arises when there has been consideration (and presumably determination) by a judge of the earlier judicial review application. In our respectful view, however, such a reading sits uncomfortably with the plain text of s 486D and, in any event, the passage appears to be directed to a different amendment.

40    In his subsequent second reading speech dated 10 May 2005, although not directly addressing s 486D, the Attorney-General said:

…the bill provides identical grounds for relief in the High Court and lower federal courts and so will assist the courts in quickly identifying and stopping applicants early in the process who are seeking to relitigate matters which have already been the subject of a judicial determination. The Department of Immigration and Multicultural and Indigenous Affairs has advised that currently one-third of all its judicial review applications come from repeat judicial review applicants.

This passage is again directed to a different amendment.

41    For these reasons, we consider that the primary judge was correct to apply Perry J’s reasoning in TCWY notwithstanding the different circumstances here.

42    Accordingly, the applicant has not demonstrated that there is a sufficient basis to grant leave to appeal in relation to proposed ground 1.

43    As to the second proposed ground of appeal, it is notable that there is no reference at all in SZFOG to s 486D. That is because that provision only commenced on 1 December 2005, which post-dates the decision of the Federal Magistrates Court which was the subject of the appeal in SZFOG. Accordingly, the decision has no relevance to the proper construction of s 486D. The case is in any event distinguishable because it relates to the application of general principles of abuse of process in the context of an appeal from a decision of the FCCA in which the FCCA had dismissed a judicial review application as an abuse of process. The appeal was allowed, primarily on the basis that the FCCA had applied the wrong test and failed to exercise its discretion when it determined to strike out the application simply because a second review application had been filed.

44    In our view, this proposed ground has no reasonable prospects sufficient to warrant leave to appeal.

45    As to the third proposed ground, AGX16 is also distinguishable. Although there is a reference in the FCCA’s reasons for judgment in AGX16 to s 486D, that provision did not provide the basis for the decision of the Court to reject an application for summary dismissal in circumstances where the applicant had discontinued an earlier application for an extension of time and then subsequently filed a new application for an extension of time with proposed new grounds of judicial review. In the particular circumstances of that case, and not without some hesitation, the primary judge concluded that it was inappropriate summarily to dismiss the application. The FCCA gave particular weight to the fact that there were entirely new proposed grounds of review, that they had been formulated with the benefit of legal assistance and appeared to be bona fide.

46    We reject the applicant’s contention that Chen is distinguishable. There is no scope for the applicant to argue that her filing of the notice of discontinuance was an abuse of process having regard to the meaning of that phrase in cases such as Moussa, which stand for the proposition that no abuse of process is involved where a party knowingly and voluntarily files a notice of discontinuance, as was the case here (see the primary judge’s finding which is referred to at [18] above).

47    The second limb of Décor is whether substantial injustice would result if leave to appeal were refused, supposing the decision of the FCCA is wrong.

48    The applicant has not established that this limb should be determined in her favour in respect of any of the proposed grounds of appeal. The fundamental hurdle is that, even if the FCCA’s decision be wrong, it is open to the applicant to seek an extension of time to bring a fresh application for judicial review in which she will need to disclose the earlier proceedings as required by s 486D of the Act. Any such application for an extension of time would fall to be determined in accordance with established principles. The Court notes that the Minister has said that he would not oppose any extension of time if fresh proceedings were commenced in the near future. Accordingly, there is no substantial injustice to the applicant if leave to appeal is refused.

Conclusion

49    For these reasons, the application for leave to appeal should be dismissed and the applicant ordered to pay the first respondent’s costs, as agreed or assessed. The Court expresses its gratitude to Mr Rolf Sorensen, who agreed to represent the applicant pro bono.

Associate:

Dated:    14 November 2018