FEDERAL COURT OF AUSTRALIA

DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 3.04 of the Federal Court Rules 2011 (Cth), the Registrar of the Court accept for filing the applicant’s application for an extension of time and supporting affidavit substantially in the form that he submitted those documents for filing by post and received by the Registrar on 3 July 2019.

2.    The second respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant was the holder of a Class CD subclass 851 resolution of status visa which was cancelled by the Minister for Home Affairs on 15 February 2018 pursuant to s 501BA(2) of the Migration Act 1958 (Cth). He brought an application for judicial review of that decision which was dismissed at first instance (DOB18 v Minister for Home Affairs [2018] FCA 1523, per Griffiths J) and on appeal (DOB18 v Minister for Home Affairs [2019] FCAFC 63, per Logan and Robertson JJ, Rares J dissenting).

2    The applicant has filed an application for special leave to the High Court against the decision of the Full Court, but it has not yet been determined. It is not known when it will be determined. The application book was filed only on 21 August 2019.

3    The Full Court’s judgment was delivered on 18 April 2019. On 30 May 2019, the Full Court handed down its decision in Ibrahim v Minister for Home Affairs [2019] FCAFC 89. The Full Court in Ibrahim upheld two grounds of judicial review against a decision made under s 501BA(2) of the Act. Neither of those two grounds had been relied on by the applicant in his previous application. Both are squarely applicable to the Minister’s decision to cancel the applicant’s visa.

4    On 2 July 2019, the applicant submitted for filing an application for an extension of time and an accompanying affidavit, seeking to commence fresh judicial review proceedings against the Minister’s decision and, on this occasion, relying on the successful grounds in Ibrahim. The first respondent (the Registrar) refused to accept those documents for filing, returning them to the applicant by letter dated 11 July 2019. The relevant part of the letter reads as follows:

I note that on 1 May 2018 at 4:01pm, you e-filed an Originating Application for Review seeking to review the Minister’s decision to cancel your visa. In that Originating Application you sought the same remedies that you are now seeking in the Draft Originating Application you submitted to the NSW Registry on 3 July 2018. That matter became DOB18 v Minister for Home Affairs (NSD694/2018) and was finalised by Justice Griffiths on 17 October 2018 when it was dismissed with an order for costs.

On 7 November 2018 you appealed against the decision of Justice Griffiths. That appeal matter became DOB18 v Minister for Home Affairs (NSD2040/2018) and was dismissed with costs by the Full Court on 18 April 2019.

Your application to the High Court was also refused (S150/2019).

Accordingly, you have exhausted all legal remedies for this decision, and cannot attempt to restart your same proceedings again in the Federal Court of Australia.

5    The Registrar was mistaken in stating that the High Court had refused the special leave application. As indicated above, the application is yet to be determined. But nothing turns on this mistake.

6    The applicant now brings this proceeding in which he seeks an order pursuant to r 3.04 of the Federal Court Rules 2011 (Cth) (FCR) that the Registrar accept for filing his application for an extension of time (and accompanying documents). Alternatively, the applicant seeks an order pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) quashing the decision of the Registrar not to accept his application for an extension of time for filing and an order directing the Registrar to accept that application for filing.

The Registrar’s decision

7    Although it was not stated in the Registrar’s letter, it appears that the Registrar’s decision was made pursuant to r 2.26 of the FCR. That rule permits a registrar to reject a document submitted for filing including an originating process if the registrar is satisfied that, among other things, the document is an abuse of process. The terms of the Registrar’s letter, in particular the statement that “you have exhausted all legal remedies for this decision, and cannot attempt to restart your same proceedings again in the Federal Court of Australia”, suggest that he had formed such a view.

8    The applicant places primary reliance on r 3.04 of the FCR, which permits a person to apply to the Court without notice for an order that a registrar do any act or thing that the registrar is required or entitled to do but has refused to do. In Re Pickering [2009] FCA 809, relief was sought under the predecessor to r 3.04 (O 46 r 7(2)) in respect of a decision of a registrar to refuse to accept documents for filing. Barker J described the rule as “designed to enable the Court to give appropriate directions to the registrar in aid of the administration of the Court” (at [16]).

9    There is no requirement, under r 3.04, for the Court to find specific error in the Registrar’s decision. Rather, the power being directed to the proper administration of the Court, the Court should give a direction if the Court considers it to be in the interests of the due administration of the Court to do so.

Is this proceeding premature?

10    The Minister submits that the present proceeding is premature. He submits that in the applicant’s current special leave application before the High Court, the applicant can apply for new grounds based on Ibrahim to be raised in the prospective appeal. The Minister submits that it would be a clear abuse of process to commence a fresh proceeding, as the applicant seeks to do, while judgment in the earlier proceeding, involving the same parties and seeking the same relief in relation to the same decision, remains subject to a possible appeal.

11    In order to avoid the risk of this proceeding being dismissed on the basis of the Minister’s submission on prematurity, at the hearing of the present application the applicant sought an adjournment to enable him to seek to raise the Ibrahim grounds in the special leave application. The Minister opposed the adjournment.

12    I declined to deal with the adjournment as a preliminary issue, preferring to hear full argument on all points. That is because if I did not accept the Minister’s submission that the present proceeding is premature and should be dismissed on that basis, then the need for the adjournment would fall away. The applicant accepted this, i.e. that the adjournment was only sought if I would otherwise accept the submission that the proceeding is premature.

13    I do not accept the Minister’s submission that this proceeding, or the prospective proceeding, is premature and that this proceeding should be dismissed on that ground. It is simply not known what might happen on the special leave application. It may be that the applicant has the opportunity there to apply to raise new grounds on appeal, but the prospect of being allowed to do so in the High Court’s appellate jurisdiction in circumstances where the grounds were not previously raised must be regarded as very remote; it is not consistent with the special leave process to allow new grounds that have not previously been considered by either of the lower courts that dealt with the matter.

14    Also, if the submission was correct, then the applicant would have to wait, for an indefinite period of time, until he knew that his existing appeal rights had been completely exhausted before bringing the present application. That would be unsatisfactory, and it would run counter to the quick, inexpensive and efficient conduct of proceedings in this Court. As the applicant is in immigration detention and, as will be seen, his case in reliance on the Ibrahim grounds is strong, it would be quite wrong to make him have to wait to have it determined whether he can rely on those grounds and, if so, whether they succeed.

15    I foresee that the applicant may face a difficulty in the special leave application in the event that he succeeds in the present proceeding. It would be open to the Minister to seek the dismissal of the special leave application on the basis that it is premature and not a proper vehicle for special leave in circumstances where the applicant might yet succeed in this Court to set aside the Minister’s decision to cancel his visa. In the event that the applicant succeeds in this proceeding, he may be well advised to seek an adjournment of the special leave application to allow his reliance on the Ibrahim points to be determined. If he succeeds in that and the Minister does not appeal, then the need for the special leave application to proceed will have fallen away. Alternatively, if the prospective proceeding also ends up in a special leave application, then the two proceedings can come together and be determined together.

16    All of that is of course speculation on my part. What course the special leave application should take is not a matter for me. However, in determining the Minister’s submission that the present proceeding is premature I must take into account considerations with regard to the sensible and orderly process, and progress, of the litigation – the past, the present and the prospective. Those considerations favour the final determination of all issues in the courts of first instance and at intermediate appellate level before being considered by the High Court, rather than the other way around. That is to say, the Minister cannot have it both ways; he cannot contend in each proceeding that it is premature because of the other proceeding. The best and most appropriate way to resolve that conundrum is to consider and decide the present proceeding on its merits, rather than to dismiss it, as the Minister urges, because of the extant special leave application.

Was the Registrar’s decision wrong?

17    The Full Court in Nyoni v Murphy [2018] FCAFC 75 held that a registrar’s decision under r 2.26 was administrative in character and therefore susceptible to judicial review under the ADJR Act (at [41]). (It does not appear that the applicant in Nyoni sought to rely on r 3.04 of the FCR.) In Bizuneh v Minister for Immigration [2003] FCAFC 42; 128 FCR 353 at [16] per Lee, Whitlam and Jacobson JJ it was held that such a decision is administrative in character and is therefore not a judgment susceptible to an appeal.

18    By the terms of the rule, the Registrar was only empowered to refuse to file a document under r 2.26 if satisfied that the document is an abuse of process or frivolous or vexatious “on the face of the document, or … by reference to any documents already filed or submitted for filing with the document”.

19    As the Full Court held in Nyoni, a registrar has no power under r 2.26 “to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious)” (at [38]). That follows from the administrative nature of the power. Rather, r 2.26 is “the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious” (at [38]).

20    The application for an extension of time is not, either on its face or by reference to its supporting affidavit, or by reference to other documents already filed, an abuse of process, frivolous or vexatious. It is regular in form. The attached draft originating application contains intelligible grounds of review. The accompanying affidavit acknowledges that the Minister’s decision has been the subject of a previous judicial review application, but explains that the grounds are based upon the more recent Ibrahim decision.

21    Before me, the Minister accepts that it was beyond the Registrar’s powers to refuse to accept the applicant’s documents for filing on the basis on which he refused them. Those grounds are substantive legal grounds which needed to be dealt with in the proposed proceeding and not at the administrative stage of whether or not the documents originating that proceeding could be filed. The Minister also accepts that the Registrar’s decision would be reviewable under s 5(1)(f) of the ADJR Act as revealing an error of law.

22    The Minister submits, however, that I should only make the order sought under r 3.04 if I am satisfied that the proposed proceeding is not bound to fail, and there is a prospect that the extension of time would be granted. The Minister also submits that insofar as the applicant relies on the ADJR Act, I would not set aside the Registrar’s decision to refuse the documents for filing in the exercise of my discretion if I was satisfied that the proposed proceeding is an abuse of process.

23    The applicant also accepts that the relief sought, whether pursuant to r 3.04 of the FCR or under the ADJR Act, is discretionary.

24    Therefore, the disposition of the application depends on whether the proposed proceeding is an abuse of process in the sense of what is now known as Anshun estoppel following Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589. The Minister made it clear that he does not submit that the present proceeding, i.e. the proceeding that seeks to ensure that the Registrar accepts the application for an extension of time for filing, is an abuse of process. He submits that I can be satisfied in the present proceeding that the proposed proceeding is an abuse of process and on that basis I should refuse relief in the present proceeding.

25    The applicant submits that it is not appropriate for the Court to determine in this application, on a compressed timetable in relation to the confined issue of whether the Registrar’s decision to refuse documents for filing should be upheld, whether the proceeding sought to be filed would be barred by Anshun estoppel. The applicant submits that the proper course is to permit the applicant to file his proceeding and allow full argument in relation to Anshun issues at a final hearing in that proceeding.

26    I accept that submission with one qualification. That is that if the proceeding is bound to fail, then I would exercise my discretion against granting the relief sought. That raises a high bar for the Minister at this stage. In effect, it is a summary dismissal test, in reliance on Anshun as the basis for the defence, i.e. similar to the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129 per Barwick CJ.

27    Invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances, and then only in the clearest of cases. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2008] FCA 1027 at [5] per Marshall J citing Ling v Commonwealth (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna [1998] VSCA 52; (1999) 2 VR 19 at [33] per Kenny JA (with whom Phillips JA agreed).

28    I do not consider that the present proceeding is the appropriate place to finally decide the Minister’s reliance on the Anshun principle. That is because of the necessarily preliminary nature of the present proceeding. It is directed at deciding whether or not the Registrar was correct in refusing to accept the applicant’s documents for filing, and whether he should be directed to now accept them.

29    The proceeding was deliberately brought to hearing quickly so that the substantive prospective proceeding is not unduly delayed, particularly in view of the fact that the applicant is currently in immigration detention. The originating application was filed on 31 July 2019. The Registrar filed a submitting notice and the Minister filed an address for service on 19 August 2019. The matter came before me for the first case management hearing on 29 August 2019. That was stood over for a few days to enable the Minister’s counsel to get instructions on issues that arose, and on 2 September 2019 I listed the matter for hearing on 19 September 2019 with a timetable for filing evidence and submissions.

30    On that truncated timetable, it would be unfair on the applicant to then decide against him on a substantive defence to the prospective proceeding, unless I was satisfied that the prospective proceeding is bound to fail.

31    Moreover, I note that r 3.04 provides that an application may be made under it without notice. That indicates that attention is to be directed to the administrative question of whether or not the relevant action of the Registrar should be corrected, and not at the substantive merits of the prospective proceeding where the prospective respondent can raise any substantive defence.

Should the applicant be denied relief?

32    The Anshun estoppel doctrine can apply to judicial review of administrative decisions: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242; 46 FCR 10 at [39] per Emmett, Conti and Selway JJ. An Anshun estoppel arises where the subject-matter sought to be raised is so relevant to the subject-matter in an earlier proceeding that it would have been unreasonable not to raise it in the earlier proceeding (Anshun at 598 and 602 per Gibbs CJ, Mason and Aickin JJ).

33    The Anshun doctrine has, however, been recognised as being subject to a “special circumstances” exception comprehending “situations where, for broad discretionary considerations related to notions of justice, [the principle] should not be applied with full rigour”: BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; 67 ALD 60 at [26] per Sackville J, and the authorities there cited. The Court has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: Wong at [38].

34    The proposed argument based on Ibrahim was available and could have been raised in the earlier proceeding. It was not precluded by any authority. If made out, it supports the same relief as was sought in the earlier proceeding (and the same relief is now sought), in relation to the same exercise of power, and thus involves the same parties. As proposed to be advanced, it turns on the construction of the Minister’s statement of reasons, which was in evidence in the earlier proceeding.

35    Its success may be regarded as leading to conflicting judgments, in the sense discussed in Anshun (at 603-604), although there may be some debate as to the relevance of that where the judgments would not require conflicting things to be done and would therefore not put anyone at risk of being in contempt of one judgment by obeying the other. It is not uncommon for an administrative decision to be upheld on one challenge and then quashed on another. So it is not clear that the judgments would really conflict in the Anshun sense.

36    Be that as it may, the Ibrahim points “properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” (at 598, quoting Henderson v Henderson (1843) 3 Hare 100 at 115).

37    This means that it may be that the applicant’s case will ultimately fail. However, it may not. There are a number of factors which might lead a court in due course to conclude that it was not unreasonable for the applicant not to have raised the Ibrahim points in his previous case, or that there are special circumstances such that even if it was unreasonable for him not to have previously raised those points he should not be barred from raising them in a new proceeding.

38    First, the applicant’s case in reliance on Ibrahim is very strong, and it is fortified by the even more recent decision in Nguyen v Minister for Home Affairs [2019] FCAFC 128. Although not conceding that the applicant’s case would succeed if allowed to go ahead, the Minister accepted that there is a strong similarity between the Minister’s reasons in this case and the aspects of the reasons which were held in Ibrahim to be expressive of error.

39    In that regard, paragraphs [5] to [9] of the Minister’s reasons in the present case are relevantly identical to paragraphs [10] to [14] of the Assistant Minister’s reasons in Ibrahim (quoted at [29] of the judgment). They demonstrate that the Minister misunderstood that s 501BA(3) of the Act precluded him from providing the applicant with any form of hearing, and that he recognised that the applicant’s circumstances may have changed in some relevant way in the time between the restoration of the applicant’s visa by the AAT and the Minister’s decision some 15 months later to cancel it.

40    Paragraphs [80] to [82] of the Minister’s reasons in the present case are relevantly identical to paragraphs [97] to [99] of the Assistant Minister’s reasons in Ibrahim (quoted at [67] of the judgment). They demonstrate that the Minister mistakenly understood that non-refoulement obligations under the Refugees Convention are the same as protection obligations under s 36(2)(a) of the Act and thus that both sets of obligations would necessarily be considered in the context of an application by the applicant for a Protection visa. That error constituted jurisdictional error in Ibrahim, and the case for it to amount to jurisdictional error in the present case must be regarded as strong.

41    Second, the applicant’s liberty is at stake. His status in Australia, and his vulnerability to being returned to a country where he claims that he will be persecuted on account of his sexual orientation, are imperilled. He says that he will be “killed (stoned to death) without a doubt” if returned. These are powerful considerations relevant to the justice of applying Anshun against the applicant.

42    Taking factors one and two together, it may be that a court in due course will not uphold the Minister’s reliance on Anshun to have the applicant’s case dismissed because that would have the consequence of depriving the applicant of his liberty in Australia and risking his personal safety despite the Minister’s decision otherwise likely being vitiated by jurisdictional error.

43    Third, s 501BA under which the Minister cancelled the applicant’s visa had not been in the Act very long – it was introduced in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) – when the applicant brought his proceeding challenging the Minister’s decision. There was therefore limited authority directly on the section, and there were only a handful of Full Court decisions. This is a rapidly developing area of law. Indeed, the grounds in Ibrahim on which the applicant wishes to rely were dismissed at first instance in that case.

44    The result is that although Ibrahim did not change the law and should rather be understood as revealing an aspect of the law that was not previously widely appreciated, and the grounds on which the applicant now seeks to rely were thus technically available to him from the outset, a court may in due course not regard the applicant as having acted unreasonably in not raising those grounds then. That is all the more so in circumstances where the applicant did not even consciously let alone tactically omit to raise those grounds; he and his then legal advisers were simply ignorant of them being available.

45    Fourth, the applicant, and persons similarly placed, are in a position of considerable vulnerability with limited access to legal services. He is in immigration detention; he is not able to earn an income; and he has access to minimal resources. Amongst the resources in very scarce supply to him and others like him are legal services. Counsel appears for the applicant in this proceeding pro bono, as he did before the Full Court. The applicant received a grant from Legal Aid NSW and was represented by counsel, although different counsel, before the primary judge but no grant of legal aid was made for the appeal.

46    Many cases such as these come before this Court where the applicant is unrepresented. From time to time the Court makes pro bono referrals, and very often public spirited counsel step forward to take the cases on pro bono. It is of enormous assistance to the Court and, obviously, to the applicants when they do so. But in any many other cases, no one comes forward. On the other side of the case, the Minister is well resourced and has panels of solicitors and counsel regularly appearing for him, including some of the finest public lawyers in the country. There is nothing approaching equality of arms.

47    All of this may be regarded as relevant to the reasonableness, objectively speaking, of the applicant’s failure to raise the Ibrahim grounds in his previous case. It may also be relevant to whether or not there are special circumstances.

48    Finally, there is authority for the proposition that the Minister may be less vexed by a second proceeding than a private litigant would be: Kong v Minister for Immigration and Citizenship [2011] FCA 1345; 199 FCR 375 at [38] per Flick J. His Honour stated that “the absence on the part of a respondent Minister of any ‘personal’ interest in the outcome of a proceeding” and “the prospect that a respondent may be less ‘vexed’ by litigation than a private respondent” as considerations which may apply in a different manner in the context of public law litigation. See also Wong at [39].

Conclusion

49    In the circumstances, I am not satisfied that the applicant’s prospective proceeding is bound to fail. I therefore grant the orders that he seeks to enable that proceeding to go ahead where the Minister will then have the opportunity to raise the Anshun point if he wishes to do so, and it can be argued and determined on full and proper evidence.

50    As this proceeding stands on its own, the costs should follow the event. The Minister did not make any submission against that approach. The applicant should thus have his costs.

Associate:

Dated:    25 September 2019