FEDERAL COURT OF AUSTRALIA

Cockrell v Minister for Immigration and Citizenship [2009] FCA 444

MARCUS GEOFFREY COCKRELL v MINISTER FOR IMMIGRATION AND CITIZENSHIP, ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

NSD 284 of 2009

PERRAM J

8 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                     On 12 January 2009 Mr Cockrell commenced a proceeding in this Court against the Minister for Immigration and Citizenship, the Administrative Appeals Tribunal and the Secretary of the Department of Immigration and Citizenship.

2                     On 27 March 2009 a judge of this Court gave judgment for those respondents against Mr Cockrell pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) in relation to all but one of his claims.  In relation to that last claim, the judge dismissed it pursuant to O 20 r 5 on the basis that it was frivolous and vexatious.

3                     Mr Cockrell now seeks leave to appeal from that decision.  There are conflicting views as to whether leave is required.  However, the Full Court’s recent decision in Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [27] per Rares J (with whom Emmett J agreed at [15]) leads me to conclude that the better view is leave is necessary.  In order to attract a grant of leave an applicant must establish that the question is attended by sufficient doubt to warrant the grant of leave and also that substantial injustice will result from any refusal to grant leave: see Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

4                     The threshold for the grant of leave in a case such as the present is not high because, whilst the decision from which leave to appeal is sought is interlocutory in form, it is final in effect: see Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [31] per Rares J applying the dictum of French J in Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 at 629 [26].

5                     To gauge whether leave should be granted it is necessary to say something of the extensive history of the present proceeding.

6                     Mr Cockrell is a citizen of the United States of America.  He arrived in this country in 1994 and married an Australian citizen in 1999.  He thereafter obtained a spouse visa.   Between 1998 and 2002 he committed a series of fraud offences.  He was convicted of these offences in Queensland and sentenced to a term of imprisonment of more than 12 months.  That sentence exposed Mr Cockrell to the risk that the Minister administering the Migration Act 1958 (Cth) might exercise the power to revoke his visa on the basis that he failed to satisfy the character test specified in s 501 of the Migration Act 1958 (Cth).

7                     The Minister, in fact, reached that conclusion and determined consequently to revoke his visa.  Mr Cockrell’s application for a review of that decision by the Administrative Appeals Tribunal was unsuccessful: see Cockrell v Minister for Immigration and Citizenship [2007] AATA 67.  An appeal to this Court was rejected on 20 November 2007: see Cockrell v Minister for Immigration and Citizenship (2007) 100 ALD 52.  A further appeal to the Full Court of this Court met the same fate on 5 September 2008: see Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345.   On 11 February 2009 Gummow and Kiefel JJ dismissed Mr Cockrell’s application for special leave to appeal: Cockrell v Minister for Immigration [2009] HCASL 2 at [10].

8                     It was against that background that Mr Cockrell commenced a fresh proceeding in this Court seeking habeas corpus against the Minister and the Secretary, ancillary mandamus and injunction, a declaration that he held a valid visa and writs of prohibition and injunction restraining the respondents from giving effect to what he said was but a purported decision to cancel his visa.

9                     Prima facie that application suffered from the considerable handicap that it sought to impugn the validity of the Tribunal’s decision in circumstances where this Court had rejected a prior challenge to that decision.  Ordinarily that would be the end of the matter by reason of well-established principals relating to the finality of litigation.

10                  The Minister applied, on that unsurprising basis, to have Mr Cockrell’s claim summarily dismissed and it is that application to which the primary judge acceded: Cockrell v Minister for Immigration and Citizenship [2009] FCA 436.

11                  Before me Mr Cockrell advanced the following arguments:

(a)                principles of finality of litigation did not defeat his claim because there was an exception to those principles relating to special circumstances;

(b)               here special circumstances were present because his then counsel had not realised the points which Mr Cockrell now wished to raise;

(c)                there were further special circumstances constituted by the deleterious effect that a failure to allow the grounds now raised would have upon him (and his infant son);

(d)               the particular new grounds were:

i.                     a failure by the Tribunal to take into account a relevant consideration consisting of parts of the evidence put before it;

ii.                   a failure to give reasons within the meaning of s 43(2)-(2B) of the Administrative Appeals Tribunal Act 1975 (Cth);

iii.                  a denial of procedural fairness constituted by denying Mr Cockrell an opportunity to deal with certain photographs;

iv.                 a failure to find that he had a substantial criminal record which was, so it was said, a jurisdictional prerequisite to the application of s 501 of the Migration Act 1958 (Cth);

v.                   erroneously taking into account four convictions in Queensland which were set aside on appeal;

vi.                 a failure to determine whether Mr Cockrell was likely to repeat his misconduct in the future – the Tribunal found instead that it was not satisfied that Mr Cockrell was not at risk of further offending;

vii.                a failure properly to take into account the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child; and

viii.              taking into account Direction 21 when it was invalid for various reasons.

12                  Some but not all of those arguments were advanced before the primary judge.  So far as they were not advanced before the primary judge, no reason was advanced to me as to why they should be permitted to be raised on any proposed appeal.  Mr Cockrell is bound by the way he ran his case.  That being so, there is no occasion to consider their correctness.

13                  The primary judge found each of Mr Cockrell’s arguments either to have no prospects of success, to be an abuse of process or to be unproved.  I detect no error at all in the approach of the primary judge to the arguments raised before him.  Indeed, in my opinion, his Honour’s conclusions are manifestly correct.  There is in that circumstance no risk of a miscarriage of justice.

14                  Quite apart from that, however, the present proceeding is an abuse of process.  The lawfulness of the Tribunal’s determination has been extensively litigated and has not been found wanting.  Mr Cockrell’s reasons for being permitted to re-litigate these matters were wholly inadequate.  He did not suggest that his counsel were incompetent – nor, in my opinion, could he have so done.  The reality is that Mr Cockrell’s case has been rejected.

15                  There is no evidence of any disability on his part in the prior proceedings or any reason which might justify a departure from the ordinary principles which relate to the finality of litigation. The commencement of the present proceeding and indeed this application for leave to appeal are a clear abuse of process.

16                  Leave to appeal should be refused with costs.

Associate:

Dated:         8 May 2009