Federal Court of Australia

Heiner v Minister for Home Affairs [2021] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Applicant pay the First Respondents’ costs of and incidental to the application.

3.    The costs of the Second Respondent are reserved.

4.    The Second Respondent file and serve any written submissions concerning any claim for costs in connection with the application, limited to two pages, by 22 March 2021.

5.    The Applicant file and serve any written submission in relation to any claim for costs by the Second Respondent, limited to two pages, by 29 March 2021.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The Applicant applies for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of a decision of the Australian Human Rights Commission made on 6 May 2020. That decision was to cease its inquiry into the Applicant’s complaint that the Department of Home Affairs violated his human rights by refusing him entry to Australia. The Department’s refusal prevented the Applicant from seeing his terminally ill sister before she passed away. For the reasons that follow, the application is dismissed.

Background

2    The Applicant was born in Australia on 24 September 1959 and thus acquired Australian citizenship by birth. On 12 November 1994, the Applicant married Ms Moroney, an Irish citizen. As a consequence of that marriage, the Applicant became eligible for Irish citizenship pursuant to the Irish Nationality and Citizenship Act 1986 (INC Act). Sub-section 8(1) of the INC Act provided that marriage to an Irish citizen did not automatically confer Irish citizenship. However, a foreign citizen may obtain Irish citizenship after three years of marriage by lodging the prescribed declaration, accepting Irish citizenship as post-nuptial citizenship. Sub-section 8(2) of the INC Act provided that any person who lodged a declaration under sub-section 8(1) became an Irish citizen ‘from the date of lodgement’ of the declaration. On 23 June 1999, the Applicant lodged a declaration under s 8(1) of the INC Act and became a citizen of Ireland on that date.

3    At that time, s 17 of the Australian Citizenship Act 1948 (Cth) (the 1948 Citizenship Act) provided that:

(1)     A person being an Australian citizen who has attained the age of 18 years, who does any act or thing

(a)    the sole or dominant purpose of which; and

(b)     the effect of which;

is to acquire the nationality or citizenship of a foreign country, shall upon that acquisition, cease to be an Australian citizen.

4    Due to the operation of that section, the Applicant automatically ceased to be an Australian citizen on 23 June 1999, being the date of acquisition of his Irish citizenship: see Heiner v Minister for Immigration and Citizenship [2013] FCA 617 at [45] (Marshall J).

5    On 10 November 2010, the Applicant and Ms Moroney were divorced. The Applicant later married Ms Kirwin, a citizen of the United Kingdom. The Applicant and Ms Kirwin have a daughter, Grace Heiner, who was born on 11 March 2011 in Spain.

6    On 11 April 2011, the Applicant applied on behalf of his daughter for Australian citizenship by descent (the 2011 Application). At that time, the Applicant believed that he held dual Australian and Irish (European Union) citizenship. On 29 July 2011, a delegate of the Minister for Immigration and Citizenship refused the 2011 Application on the basis that the Applicant’s daughter did not have a parent who was an Australian citizen at the time of her birth, as required under s 16(2) of the Australian Citizenship Act 2007 (Cth) (the 2007 Citizenship Act).

7    On 26 August 2011, the Applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision, on his daughter’s behalf. The Tribunal affirmed the Minister’s decision on 26 April 2012: Heiner and Minister for Immigration and Citizenship [2012] AATA 236. The Applicant appealed from the Tribunal’s decision to this Court. On 28 August 2012, Gray J made orders by consent identifying jurisdictional error in the Tribunal’s decision, and remitting the matter to the Tribunal for re-determination according to law.

8    On 5 December 2012, the Tribunal conducted a second hearing, following which it again affirmed the Minister’s decision to refuse the 2011 Application: Heiner v Minister for Immigration and Citizenship [2012] AATA 933. The Applicant appealed the Tribunal’s second decision to this Court. On 21 June 2013, Marshall J dismissed the appeal with costs: Heiner v Minister for Immigration and Citizenship [2013] FCA 617. As a result of the costs order against him, the Applicant has an outstanding debt of $23,916.54 to the Commonwealth and is thereby subject to Public Interest Criteria 4004 (Debt to the Commonwealth). The Applicant’s failure to pay the debt renders him ineligible for an eVisitor (subclass 651) visa.

9    On 28 August 2013, the Department of Immigration and Citizenship advised the Applicant that he may apply to resume his Australian Citizenship under s 29 of the 2007 Citizenship Act at any time, and that the Applicant’s daughter would thereafter be eligible to apply for Australian citizenship by conferral under s 21(6) of the 2007 Citizenship Act. The Department of Immigration and Border Protection reiterated, in a letter dated 12 December 2014, that if the Applicant wanted to resume his Australian citizenship, he may do so by completing ‘Form 132 – Application to resume Australian citizenship’, which required him to pay the relevant application fee and lodge supporting documents. Further, in a letter dated 21 December 2016, the Department of Immigration and Border Protection notified the Applicant for a third time that he was entitled to apply to resume his Australian citizenship and indicated that “it remains your decision as to whether you lodge an application for Australian citizenship on [your daughter’s] behalf while she is a child”.

10    In 2019, the Applicant wished to travel to Australia to visit his terminally ill sister, who was receiving care at Peter MacCallum Cancer Centre in Melbourne. On 31 August 2019, the Applicant lodged an online Visitor – Tourism (Offshore) (Web) (TV 651) visa application. On three occasions between September and October 2019, the Department provided the Applicant, by email, with information regarding payment arrangements for his outstanding debt. The Applicant failed to respond within the legislative timeframe. On 4 December 2019, a delegate of the Minister refused the Applicant’s visa application on the basis that he did not meet Public Interest Criterion 4004, as required by cl 651.213 of Schedule 2 to the Migration Regulations 1994 (Cth). Part 1 of Schedule 4 to the Regulations defines Public Interest Criterion 4004 as follows:

4004    The Applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

11    The Applicant’s sister passed away in December 2019.

Complaint to the Australian Human Rights Commission

12    On 6 November 2019, the Applicant lodged a complaint with the Commission, claiming that the Department violated his human rights by preventing him from travelling to Australia, or otherwise denying his re-entry to Australia. The Applicant claimed the cessation of his Australian citizenship was based on a law which was invalid. He also claimed that the earlier decisions of the Tribunal and this Court concerning his 2011 Application were “corrupt”.

13    The Applicant relied upon the Commonwealth of Australia Constitution Act 1901 (Cth), the “rule of law”, and international treaties including the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR), in support of his complaint to the Commission.

14    The Commission inquired into the complaint as it was obliged to do by s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA). That sub-section requires the Commission to: “inquire into any act or practice that may be inconsistent with or contrary to any human right”. In its Reasons for Decision, the Commission explained that it does not have jurisdiction to investigate alleged breaches of the Constitution or rule of law, and that the ICERD is not one of the international human rights instruments scheduled to, or declared under, the AHRCA for the purposes of the Commission’s human rights complaint handling jurisdiction. Based on the information provided by the Applicant, the Commission investigated the complaint as a potential breach of art 12 of the ICCPR, which provides for freedom of movement. That article provides:

1.    Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.    Everyone shall be free to leave any country, including his own.

3.    The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4.    No one shall be arbitrarily deprived of the right to enter his own country.

15    On 6 May 2020, a delegate of the President of the Commission decided pursuant to s 20(2)(ba) of the AHRCA to cease inquiring into the Applicant’s complaint on the basis that it was not satisfied that continuation of the inquiry was warranted. In making that decision, the Commission said that it considered: the apparent merit of the claim; other actions that have been taken and other remedies that are available in relation to the subject matter of the complaint; and the prospects of a practical outcome or remedy being achieved through the Commission’s complaint and conciliation process.

Merit of the Applicant’s complaint to the Commission

16    On the question of merit, the Commission concluded that the claim of breach of art 12 of the ICCPR was “lacking in substance”. The Commission gave two reasons for this conclusion.

17    First, the information provided by the Applicant did not support his claim that he was denied re-entry to Australia in 2019 because of the cessation of his Australian citizenship, and/or the earlier decisions. Rather, the Applicant was not able to enter Australia in 2019 due to the fact he failed to satisfy Public Interest Criterion 4004 relevant to his visa application. The Commission considered that, had the Applicant paid the debt, or otherwise entered into an acceptable payment arrangement for the debt with the Department, Public Interest Criterion 4004 would have been satisfied and the Applicant may thereafter have been issued with the visa.

18    Second, the Commission concluded that the Department’s decision to refuse to grant the visa following the Applicant’s failure to satisfy Public Interest Criterion 4004 was validly made pursuant to s 65 of the Migration Act 1958 (Cth). The Commission considered that Public Interest Criterion 4004 is arguably necessary to promote the financial sustainability and proper use and management of public resources. It was not clear to the Commission in what, if any respects, the Department’s refusal to issue a visa to the Applicant might be considered inconsistent with the ICCPR. The Commission concluded that the Department’s refusal of the visa may be a permissible restriction of the right to freedom of movement under art 12(3) of the ICCPR.

Other actions or remedies available to the Applicant

19    With respect to other actions or remedies, the Commission considered that the Applicant could have avoided the Department’s decision to refuse his visa application by paying, or entering into an appropriate arrangement with the Department in respect of, his debt to the Commonwealth. These options were communicated to the Applicant at least more than two months prior to the refusal of the visa, and it was unclear why the Applicant did not contact the Department to explore these options.

Prospects of a practical outcome or remedy being achieved through the Commission’s complaint and conciliation process

20    As for the prospects of a practical outcome or remedy being achieved through the Commission’s complaint and conciliation process, the Commission formed the opinion that this was “unlikely to be achieved”. In his complaint, the Applicant sought an answer as to whether the amendment to s 17 of the 1948 Citizenship Act was valid or not, and for the earlier decisions to be investigated for “irrationality and misconduct by the decision makers”. In arriving at its conclusion, the Commission noted that as an administrative complaint handling body, which does not administer the 1948 Citizenship Act, the validity of that Act was not within the Commission’s jurisdiction to determine. Further, as previously explained to the Applicant, judges and tribunal members are afforded judicial immunity when considering matters before them, and are therefore protected from civil suits against them. The Commission also noted that the Applicant had exhausted his appeal rights in relation to the earlier decisions and merely remained dissatisfied with the outcomes of those decisions. An additional reason for the Commission’s conclusion on this point was that the Department had advised the Commission that it was not in a position to agree to, or participate in, conciliation.

Application to this Court

21    The Applicant seeks judicial review of the Commission’s decision. In his Originating Application to this Court, his grounds of review were as follows (extracted verbatim):

1.    My complaint was not heard. Home Affairs arbitrarily alienates me from Australia by a decision made on the 1984 amendment of S17 of the Australian Citizenship Act.

2.    AHRC was asked to test the validity of the decisions to alienate me. Bias is shown by AHRC accepting all four decisions made to cease my Australian citizenship despite the first decision being so bad to be ignored in all reviews, the second declared infected by jurisdictional error by the Minister, the third relying on a fact that did not exist but rendered me stateless, and the fourth by Federal Court having to correct the error of the third and then relying on a fact that did not exist. Federal Court then awarded £23,916.54 costs against me which, six years later became an arbitrarily condition of a visa.

3.    AHRC was asked to test the only guideline for making the discretionary decision of S17 for racial discrimination and didn’t. Australian Citizenship Instructions (ACI) “Chapter 11 How People Cease to be Australian Citizens” - Amendment 16July 1995 requires the people of one race who acquired citizenship of one country to prove the act that acquired foreign citizenship was their dominant purpose in order to lose Australian citizenship. All other Australians must prove the act that acquired foreign citizenship was not the dominant purpose of the act. The default outcome of S17 for one minority race is to remain Australian whereas all others lose Australian citizenship. Where no criteria exists otherwise for making the decision on S17, the ACI is racially discriminating by definition.

4.    AHRC dismissed my complaint and instead chose to test Home Affairs policy for compliance to ICCPR. AHRC first disclosed in the preliminary letter of closure of complaint that only Art12 of ICCPR would be tested. Only Art12(4) may bear relevance to my compliant and AHRC did not test it: “No one shall be arbitrarily deprived of the right to enter his own country”. Unless valid reason is shown otherwise, AHRC holds a biased view that Australia is not my “own country” to make Art12(4) irrelevant. Moreover unless valid reason shows otherwise, AHRC shows bias to accept the decision by Home Affairs to ceased my citizenship; without identifying the source of power in the Constitution to alienate me; without identifying the source of statutory power to make the discretionary decision of S17; without establishing the criteria upon which S17 is decided; and accepting as valid all decisions based on facts shown not to exist.

5.    Home Affairs, DIAC at the time, ceased my citizenship by a decision made on the 1984 amendment of S17 of the Australian Citizenship Act. The amendment had removed the words “whilst outside Australia” from the previous version. The words shielded Australians within Australia from losing citizenship in acknowledgement of the absence of constitutional power to alienate Australians who had not emigrated. I am born Australian and had never emigrated. Home Affairs ceased my citizenship whilst I lived in Melbourne. I was arbitrarily alienated from Australia unless a source of power to alienate Australians who had never emigrated is shown to have been known by all in Parliament at the time the amendment was enacted. It is not adequate to propose a source of power to dismiss an allegation of power being used arbitrarily at an earlier time.

6.    [1992]FCA238 ruled that S17 operates only by a discretionary decision. I was arbitrarily alienated from Australia unless the source of statutory power to make the discretionary decision, and the criteria upon which the decision is made, are shown to be known by the decision maker at the time decision was made.

7.    Home Affairs imposed an arbitrary penalty of $23,916.54 on a visa application to violate my human rights and inflict greater harm on me by preventing me from entering my own country and seeing my terminally ill sister, unless a valid reason is shown to be known by the person who imposed the penalty in August 2019 when application was made.

8.    Home Affairs dismissed without reason facts that show [2013]FCA617 was necessary to correct a mistake made by AAT that rendered me stateless; relied on facts that did not exist to make a decision beyond the power of the court; and awarded costs against me in a show of bad faith. Home Affairs engaged in extortion in a display of uncontrolled abuse of power in support of the Federal Court ruling to possibly obstruction of justice, unless valid reasons are shown to be known at the time why all facts were dismissed.

22    The Applicant sought the following orders:

1.    An order for aggravated damages and injury to feelings caused by cessation of my citizenship and denied the opportunity to my sister ever again.

2.    A declaration that my Australian citizenship has not and never will be ceased.

3.    An order for all costs incurred by Philp Heiner and his family be recompensed in full and for punitive damages to be paid.

4.    An injunction to remedy [2013]FCA617, [2012]AAAT, [2012]AAAT236 and the original decision by DIAC to cease my Australian citizenship.

5.    An order to award Australian citizenship by decent to my daughter Grace Heiner.

6.    An order that no demands or restriction be made on any further action.

23    In his Contentions of Fact and Law dated 26 October 2020, the Applicant contended that there were seven questions for the Court to consider, namely:

1.    By not considering all relevant circumstances including those set out here, to find all nonsignificant, did Australian Human Rights Commission, AHRC, hold the necessary discretionary power it claims, or was the Applicant’s inquiry closed arbitrarily?

2.    By not assuring the bill to amend S17 raised no issue of principle affecting a principle part of the Constitution, and not assuring adequate constitutional power existed to make law to alienate an Australian of the Applicant’s circumstances, and not assuring adequate statutory criteria and power was established to operate the law, did Parliament hold the necessary discretionary power, or was the law made arbitrarily?

3.    By not assuring all statutory criteria were satisfied to enable discretion, or that power was delegated to make the choice on operation, did decision makers hold necessary discretionary power, or was S17 operated to cease Australian citizenship arbitrarily?

4.    By government policy advising S17 to be operated on finding what foreign citizenship was acquired, and not advising how merits specific to the case should be examined fairly to satisfy criteria for a finding a person’s “dominant purpose” in terms of S17, or how the necessary delegated power should be assured, were decision makers advised to make a decision without power, on reasons of actual bias, to cease an Australian’s citizenship arbitrarily?

5.    [1992]FCA238 ruled that the question of the person’s “dominant purpose” in terms of S17(1) is found only by discretion and not by fact, and no statutory criteria were established for the specific finding, and no power delegated to exercise the discretion, did the judge hold the necessary discretionary power, or was the ultimate determination on the question of citizenship under review made arbitrarily?

6.    [2013]FCA617 ruled that S17(2) applies only in relation to the act of marriage itself, and not to an act of marriage as S17(2) is worded. A gap arises. The Applicant has no association to Ireland other than “in relation to an act of marriage”. Australian law does not recognise the association to enable S17(2) but does recognise the citizenship acquired by it to operate S17(1) to cease his citizenship by birth. Is the distinction of types of citizenship that gives rise to this gap defined in law or arbitrarily?

7.    Department of Home Affairs, DHA, rejected application for tourist visa for the Applicant in 2020, and his daughter in 2014, and granted visas for both many other times. Do the criteria to reject visa applications apply specifically and only to the two occasions applications were rejected, or is the power exercised arbitrarily?

The Minister’s submissions

24    During oral submissions, counsel for the Minister addressed each of the eight grounds in the Applicant’s Originating Application, having regard as well to the Applicant’s Contentions of Fact and Law. The Minister’s submissions are set out below.

Ground 1: alleged arbitrary alienation from Australia by operation of s 17 of the 1948 Citizenship Act

25    With respect to the Applicant’s first ground – that the Department arbitrarily alienated the Applicant by its decision to refuse the visa – the Minister submitted that this amounted to an abuse of process, being an impermissible collateral attack on prior administrative decisions that have previously been considered by judicial review. The Minister relied on Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [40], where Perry J noted that the proceeding, being judicial review of a decision by the Commission to close a complaint, was an abuse of process because the applicant in that case was merely seeking to relitigate substantive matters which he had unsuccessfully litigated before the Federal Circuit Court.

Ground 2: alleged actual and apprehended bias on the part of the Commission

26    The Minister submitted that the Applicant’s second ground, relating to an allegation of bias on the part of the Commission, fails at its premise. The Minister submitted that nowhere in its Reasons did the Commission accept as ‘valid’ “all four decisions made to cease [the Applicant’s] Australian citizenship”. The Minister submitted that the Commission was entitled to draw on the factual and legal conclusions in those decisions, in particular the decision of Marshall J in Heiner v Minister for Immigration and Citizenship [2013] FCA 617.

27    Insofar as the Applicant is to be taken to assert actual bias on the part of the Commission, the Minister submitted that it is well-established that such a claim requires “cogent evidence” (Sun v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; 81 FCR 71 at 123) that the decision-maker was in fact biased, and must be “clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69] (Gleeson CJ and Gummow J), [127] (Kirby J)). See also R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; 88 CLR 100 at 116 (Dixon CJ, Williams, Webb and Fullagar JJ); SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] (Weinberg, Stone and Jacobson JJ). The Minister submitted that the Applicant failed to provide any such evidence and there is nothing in the materials before the Court to suggest that the Commission was actuated by actual bias.

28    Insofar as the Applicant alleges apprehended bias on the basis of pre-judgment, the Minister submitted that the Applicant must show that a fair-minded lay observer might reasonably have apprehended that the Commission was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may [have been] presented”: Jia Legeng at [72] (Gleeson CJ and Gummow J, with whom Hayne J agreed) (emphasis added). The Minister submitted that no inference of bias can be drawn from the mere fact that the decision was adverse to the Applicant (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; 131 FCR 102 at [21] (Kenny J)). Further, the materials before the Court demonstrated that the Commission received and took into account information from the Applicant and the Department in an entirely appropriate and orthodox fashion.

Ground 3: alleged racial discrimination by operation of the Australian Citizenship Instructions

29    The Applicant’s third ground is in substance a complaint that a particular policy document, the Australian Citizenship Instructions, is racially discriminatory. The Minister submitted that the Commission indirectly dealt with this complaint in its reasons by explaining to the Applicant that the ICERD is not one of the international human rights instruments schedule to, or declared under, the AHRCA for the purposes of the Commission’s human rights complaint handling jurisdiction. The Commission therefore did not have jurisdiction to consider this aspect of the Applicant’s complaint.

Ground 4: alleged failure to consider relevant considerations

30    The Applicant’s fourth ground relates to the Commission’s alleged failure to consider art 12(4) of the ICCPR. The Minister submitted that, of the seven questions posed by the Applicant in his Contentions of Fact and Law (extracted at [23] above), questions two to seven were beyond the scope of this Court’s jurisdiction in relation to judicial review of the Commission’s decision. The Minister submitted that the only justiciable matter before the Court was the Applicant’s claim that, in purporting to exercise its power under s 20(2) of the AHRCA not to continue its inquiry into his complaint, the Commission failed to take into account all relevant considerations, including art 12(4) of the ICCPR.

31    The Minister accepted that the Commission did not refer to art 12(4) of the ICCPR in its reasons beyond setting out its terms. However, the Minister submitted that it does not necessarily follow that the Commission did not consider that article: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [69], [75] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31] (French CJ and Kiefel J). The Minister contended that the Commission will only have erred if it was required to take that article into consideration as a condition of the exercise of its power under s 20(2) of the AHRCA. That section provides:

The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

…

(ba)     the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the act or practice is not warranted;

(c)     in a case where a complaint has been made to the Commission in relation to the act or practice:

…

(ii)     the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; or

(iib)    the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation; …

32    The Minister submitted that, insofar as the Commission’s power to make its decision was sourced in s 20(2)(ba) of the AHRCA, art 12(4) of the ICCPR was clearly not an express mandatory relevant consideration for the exercise of that power (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 (Mason J)), nor was it one of the “circumstances” to which the Commission was bound to have regard.

33    The Minister further submitted that the Commission’s decision was and is independently supportable by reference to its powers in ss 20(2)(c)(ii) and (iib) of the AHRCA, notwithstanding that the Commission did not make express reference to those provisions. In support of this submission, the Minister referred to Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 (AEU) at [34] (French CJ, Hayne, Kiefel and Bell JJ):

…A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.

[footnote omitted]

34    The Minister submitted that, notwithstanding that the Commission only expressly based its decision on s 20(2)(ba) of the AHRCA, the Commission’s reasons disclose that it was satisfied of “all conditions antecedent” to the exercise of the powers in ss 20(2)(c)(ii) and (iib) of that Act. That is, its Reasons disclosed that it was of the opinion that the Applicant’s complaint was “lacking in substance” and that there was no reasonable prospect of the matter being settled by conciliation. The Minister therefore submitted that art 12(4) of the ICCPR was not a consideration that the Commission was legally obligated to take into account in exercising either of those powers and, to the extent that it failed to do so, it did not err.

Ground 5: complaint relating to the 1984 amendment to s 17 of the 1948 Citizenship Act

35    The Minister submitted ground five related to an amendment to legislation and thus was a complaint about processes in Parliament not justiciable in this Court.

Ground 6: alleged discretionary operation of s 17 of the 1948 Citizenship Act

36    In relation to the Applicant’s sixth ground concerning Minister for Immigration, Local Government and Ethnic Affairs v Gugerli [1992] FCA 316; 36 FCR 68, the Minister submitted that nothing in that decision supports the proposition advanced by the Applicant as to how s 17 of the 1948 Citizenship Act operates and whether it is discretionary. The Minister submitted that s 17 of that Act operates automatically by operation of law.

Ground 7: alleged arbitrary refusal of the Applicant’s visa application owing to his unpaid debt to the Commonwealth

37    The Minister interpreted the Applicant’s seventh ground as being that the Applicant’s outstanding debt of $23,916.54 to the Commonwealth operated as an arbitrary reason for refusing his visa application. The Minister submitted that this was not a matter which the Applicant raised in his complaint to the Commission and, accordingly, was not relevant to a review of the Commission’s decision.

Ground 8: alleged bad faith on the part of the Department

38    The Minister dismissed the Applicant’s eighth ground as not relevant to a judicial review of the Commission’s decision, as they are allegations of bad faith on the part of the Department.

39    In his written submissions, counsel for the Minister categorised the Applicant’s contentions as containing four key allegations:

(1)    actual and apprehended bias (grounds 2 and 4 of the Applicant’s “Grounds of application”);

(2)    failure to take into account all relevant considerations or “all the circumstances” (ground 4 of the Applicant’s “Grounds of application”);

(3)    taking into account irrelevant considerations (part 4.3.2(iv) of the Applicant’s Contentions of Law and Fact); and

(4)    legal unreasonableness (part 4.3.2(vi) of the Applicant’s Contentions of Law and Fact).

Allegation 1

40    The Minister’s submissions with respect to the allegation of actual and apprehended bias are addressed above at [26]–[28].

Allegation 2

41    Those submissions in relation to the alleged failure to take into account a relevant consideration are discussed above at [30]–[34].

Allegation 3

42    The Minister interpreted this allegation as being that the Commission took into account irrelevant considerations having regard to the Applicant’s submission under the heading “Closure of the Complaint by AHRC” that the “Decision maker considered factors that ought not to have been considered”. The Minister submitted in response that a consideration is only irrelevant in a legal sense if the decision-maker is forbidden to take it into account. The Commission noted that under s 20(2) of the AHCRA, no considerations are expressly forbidden by that Act. The Minister further submitted that, given the purpose of s 20(2) of the AHRCA, which has been described as analogous to a summary judgment procedure, there is no basis to imply a limitation under that sub-section to the effect that certain matters should not be considered.

Allegation 4

43    The Minister inferred a ground of legal unreasonableness from the Applicant’s submission that the Commission’s decision was “so unreasonable that no reasonable authority would consider imposing it”. The Minister contended that, for the Applicant to succeed on this ground, the Commission’s decision must have been so unreasonable as to be outside the “range of possible lawful outcomes as an exercise of [the] power”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 1; 237 FCR 1 at [11] (Allsop CJ), affirmed in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [64] (Allsop CJ, Griffiths and Wigney JJ) and followed in, eg, United Firefighters’ Union of Australia v Victorian Equal Opportunity and Human Rights Commission [2017] VSC 773 at [179] (Ginnane J). The Minister submitted that the Applicant’s characterisation of the Commission’s decision as “unreasonable” appeared to be no more than an “emphatic way of disagreeing with it” (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [34] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), which is impermissible on judicial review (see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J)).

Consideration

44    I agree that this application must be refused for the reasons advanced by the Minister. The Applicant has not demonstrated any error capable of enlivening the Court’s jurisdiction on judicial review. However, there is a broader reason that may be distilled from the Minister’s submissions as to why the application must fail. Namely the Applicant has sought to convert his complaint about the Commission’s decision – to cease investigating the Applicant’s complaint about the refusal of his visa – into an application, in effect, to re-open his complaint about the cessation of his Australian citizenship and the manner in which that issue was determined by the Tribunal and by this Court in his relation to his earlier application for judicial review.

45    As noted above, the Applicant’s complaint about the automatic cessation of his citizenship was finally determined by Marshall J in Heiner v Minister for Immigration and Citizenship [2013] FCA 617 and there was no appeal from that decision. At the hearing before me, the Applicant explained that he withdrew an appeal from that decision because he understood Marshall J would be hearing the matter on appeal. In this respect, the following exchange occurred:

MR HEINER: But you would be aware that my appeal was withdrawn on wording that Marshall J would be hearing that appeal. That’s – you’re aware of that point, aren’t you?

HIS HONOUR: An appeal from Marshall J would be heard by Marshall J?

MR HEINER: That’s what was happening. That was exactly what was happening. It was – he was to be hearing his – an appeal of his own decision. That was – once I heard that, I withdrew. That’s the trouble.

46    In response, I explained to the Applicant that an appeal from a single judge of this Court cannot be heard by a panel of judges which includes the primary judge whose decision is the subject of the appeal. Accordingly, I invited the Applicant to provide the documentary material which supported his assertion at the hearing. The Applicant provided relevant documents on 5 November 2020, including various emails which explained that the matter had been listed before Marshall J for case management and that his Honour would not be presiding over the appeal. In an email dated 25 September 2013, the solicitor acting for the Applicant, Carina Ford, wrote:

Dear [Applicant]

Please find attached recent correspondence from the Federal Court changing the hearing time for your matter.

Please be advised that the Callover hearing time is now 2.30pm on the 22 October 2013 at Owen Dixon Commonwealth Law Courts Building, Level 7, 305 William Street, Melbourne.

The call over has been listed before Justice Marshall, who you will recall is the same judge that heard your matter at the Federal Court. We have contact the court querying the call over being listed before the same Judge and have been advised that as the purpose of the call over is to determine administrative orders about the conduct of the hearing it is not an issue that the matter be listed before the same Judge. The court also advised that call overs are generally listed before the most senior judges and therefore as Justice Marshal is the most experienced Victorian Judge the call over has been listed before him. The court advised that it is almost certain that Justice Marshall will not be the presiding judge considering the appeal. The court also advised that it is possible to lodge an objection, although in order to [sic] the call over to be listed before another judge Justice Marshall would need to excuse himself from the matter. Given that the function of the call over is administrative this may be unlikely.

…

47    The Applicant plainly misunderstood the appeal process. Notwithstanding attempts by his solicitor to clarify that the listing before Marshall J was merely ‘administrative’, the Applicant withdrew his application seemingly based an erroneous view that his Honour would also be hearing and determining the appeal. Be that as it may, the Applicant consented to orders dismissing his appeal on 21 October 2013. The Applicant cannot convert the present application into a collateral challenge to his earlier application for judicial review. Indeed, there is no basis in the context of the present application to in effect re-open the question of whether the Applicant’s citizenship was properly considered to have ceased by reason of the operation of the 1948 Citizenship Act. In my view, the present application constitutes a clear abuse of process by which the Applicant seeks to ventilate earlier grievances, even though this allegation was not pressed by the Minister in relation to all of the grounds of the application.

48    The foundation of the Applicant’s grievance was that his citizenship should not have been deemed to cease by operation of s 17 of the 1948 Citizenship Act. That grievance was the underpinning of his complaint to the Commission, albeit that the occasion which provoked the Applicant’s further complaint was the refusal to provide him with a visa to allow him to visit his then terminally ill sister. The Commission correctly decided that it was beyond the scope of its remit to inquire into the antecedent circumstances and/or lawfulness of the cassation of his citizenship, or the administrative, and later judicial, reviews of what had occurred. Indeed, in deciding not to continue to inquire into the Applicant’s complaint, the Commission noted that the Applicant had made an earlier complaint regarding the decision of the Department to reject his 2011 Application. As explained by the Commission in its Reasons: “[the] Previous Complaint was terminated on 27 July 2015 pursuant to section 46PH(1)(b) of the AHRCA which was in force at the time, on the ground that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.”

49    Similarly, it is beyond the proper scope of the Court’s power to review the Commission’s decision to cease its investigation of the Applicant’s complaint, to incorporate within such review an examination of the circumstances that led to the cessation of his citizenship as well as the administrative and judicial review that thereafter occurred. Put simply, the present application for judicial review of the instant decision of the Commission to cease its investigation cannot be transformed into an application involving an inquiry into the cessation of the Applicant’s citizenship, nor the process of administrative and judicial review which followed. Such a course would necessarily entail conflating the present application with the re-opening of an application for judicial review that was finally determined approximately seven years ago.

50    There are many reasons why this is not available, including that such course would in substance entail the Court constituted by a single judge, reviewing, in effect by way of appeal, a determination of the Court constituted by a different judge exercising the first instance power of the Court. That course is inconsistent with s 25(1) of the Federal Court of Australia Act 1976 (Cth), which provides that the appellate jurisdiction of the Court is to be exercised by a Full Court in accordance with s 14(2) of the Federal Court Act.

51    Further, and more fundamentally, the Applicant cannot now, in substance, re-litigate his grievances concerning the cessation of his citizenship, including the consequences thereof for his daughter’s application for citizenship, by a collateral attack on the decision of the Commission to cease its investigation of his complaint the subject of this application. To allow such a course would be inimical to the foundational principle of justice that there must be finality to litigation in relation to the subject matter in question: see, eg, Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [36]-[37] (Emmett, Conti and Selway JJ), citing with approval the established principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 598 and 602 (Gibbs CJ, Mason and Aickin JJ).

Disposition

52    For the above reasons, the application must be dismissed with costs in favour of the Minister. The application must also be dismissed against the Commission. The Commission did not participate in the hearing, having filed a Submitting Notice on 13 August 2020. However, the Commission indicated in that Notice that it wanted to be heard on the question of costs. Accordingly, I shall reserve costs in relation to the Commission and direct that it provide any written submissions as to any claim it may wish to make for costs in connection with the present application, limited to two pages, and that the Applicant provide responsive submissions concerning any claim for costs by the Commission, also limited to two pages. If necessary, I shall determine the Commission’s entitlement to costs on the papers.

Associate:

Dated:    16 March 2021