Federal Court of Australia

Heiner v Minister for Home Affairs [2021] FCA 1125

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s grounds of appeal as expressed in his Notice of Appeal dated 13 April 2021 be struck out.

2.    The Appellant have leave to file and serve amended grounds of appeal but confined to such grounds as would put in issue whether the learned trial judge in Heiner v Minister for Home Affairs [2021] FCA 212 erred in failing to find that the Australian Human Rights Commission fell into one or more reviewable errors within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in addressing his complaint that he possessed a human right under Article 12(4) of the International Covenant on Civil and Political rights which right had been arbitrarily denied to him.

3.    The appeal be dismissed unless by no later than 4:00pm (AEST) Friday 22 October 2021 the Appellant exercises the leave granted under Order 2.

4.    The costs of the First Respondent’s interlocutory application be the First Respondent’s costs in the appeal.

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

REASONS FOR JUDGMENT

KERR J:

1    These reasons concern the First Respondent’s (the Minister) interlocutory application of 16 June 2021, wherein the Minister sought the following orders:

1.     That the Court give judgment for the First Respondent in relation to the whole of the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 on the grounds that the Appellant has no reasonable prospect of successfully prosecuting the proceeding.

2.     That, further or alternatively to Order 1, the Court give judgment for the First Respondent in relation to the whole of the proceeding pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 and/or r 36.11(2)(e) of the Federal Court Rules 2011 on the basis that the Appellant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding is frivolous or vexatious and/or the proceeding is an abuse of the process of the Court.

3.     That, alternatively to Orders 1 and 2, the Court strike out the Appellant’s grounds of appeal in the notice of appeal filed on 12 April 2021 pursuant s 25(2B) of the Federal Court of Australia Act 1976 and/or r 5.04 and/or 36.11 of the Federal Court Rules 2011 on the grounds that they are frivolous or vexatious, are ambiguous, are likely to cause prejudice, embarrassment or delay in the proceeding, fail to disclose reasonable grounds of appeal and/or are otherwise an abuse of the process of the Court.

4.     The Appellant pay the First Respondent’s costs.

2    That application was advanced in respect of an appeal filed by the Appellant (Mr Heiner) from the whole of the judgment of the Federal Court of Australia in Heiner v Minster for Home Affairs [2021] FCA 212 (Heiner). In his judgment the learned primary judge had summarised those proceedings as below:

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.

3    When the Minister’s interlocutory application came before the Court as constituted by a single judge for that purpose on 18 August 2021 I drew attention to the possibility that the decision in Heiner might be interlocutory. The reasoning of the primary judge that was potentially relevant in that regard is at [45]–[50] of Heiner. I ordered by consent that the parties have leave to file submissions as to whether the primary judge’s decision was or was not interlocutory.

4    The Minister and Mr Heiner (who had been self-represented before the primary judge and remained self-represented in these proceedings) thereafter each filed written submissions. Each submitted that the primary judge’s decision in Heiner was properly to be characterised as final rather than interlocutory.

5    When the matter returned to the Court on 26 August 2021 neither party then sought to orally supplement their written submissions in those regards. To avoid unnecessary delay the Court made the following orders:

1.     If on a proper understanding of the law, the decision of the Federal Court of Australia in the proceeding Heiner v Minister for Home Affairs [2021] FCA 212 is properly to be characterised as interlocutory so much of the rules as would prevent the Court treating the Appellant’s appeal as an application for leave to appeal on the premise that the decision and orders made by Anastassiou J on 16 March 2021 was and were interlocutory in nature be dispensed with.

2.     The issue of whether the judgment referred to in Order 1 is on a true understanding of the law interlocutory or otherwise and if so the issue of leave is required, and if so whether leave should be granted to appeal be determined contemporaneously with the hearing of the first respondent’s interlocutory application of 16 June 2021 for the summary dismissal of the Appeal.

6    In the course of my reasons I explain why I have accepted the parties’ common position that the decision in Heiner was final and not interlocutory. However it is convenient to begin prior to that point by identifying the complaint Mr Heiner had made to the Australian Human Rights Commission (the Commission).

7    Mr Heiner’s complaint was in respect of a decision made by a delegate of the Minister refusing Mr Heiner (who was then in the United Kingdom) a visitor’s visa. Mr Heiner had applied for that visa to allow him to visit his terminally ill sister in Australia. That Mr Heiner’s sister was near death was known to the Minister’s Department before it had refused him that visa. His application for a visitor’s visa was refused because the criteria for the issue of that class of visa under the applicable regulations required compliance with Public Interest Criteria 4004. It is uncontentious that Mr Heiner did not comply with that criteria. He had a debt owing to the Commonwealth in the amount of $23,916.54. That debt had been incurred in respect of the costs he had been ordered to pay to the Commonwealth after failing in an earlier proceeding in which he had challenged the lawfulness of his loss of his Australian citizenship following his having obtained Irish citizenship.

8    The Minister submits that Mr Heiner’s complaint to the Commission included a raft of implausible propositions of law and constitutional law. I accept that to be so. However it is uncontentious that he also complained of a breach of the provisions of Article 12(4) of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). It is similarly uncontentious that the Commission’s functions include that generally it must inquire into any act or practice that may be inconsistent with or contrary to any human right as a person might complain about. Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth) identifies the provisions of the ICCPR, inter-alia, as setting out what Australia has acknowledged to be a person’s “human rights”: see s 3 definition of “human rights”.

9    Article 12 of the ICCPR is in the following terms:

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.

10    However in the events Mr Heiner complained about the Commission reasoned that his claim of a breach of Article 12 of the ICCPR lacked substance. Its reasons were as follows:

Turning to the apparent merit of your claims, I note you claim that you were prevented from travelling to, or otherwise denied re−entry to, Australia because of:

•    the cessation of your Australian citizenship based on a law, which you say was "invalid"; and

•    the four decisions of the M T and the FCA5 concerning Home Affairs' 2011 Refusal Decision, which you say were "corrupt" and "irrational.., made in excess of constitutional and legislative power" (the Four Decisions).

I am of the opinion that your claim that the above alleged events constitute a breach of Article 12 of the ICCPR is lacking in substance.

Firstly, the information before the Commission does not support that you were prevented from traveling to, or otherwise denied re−entry to, Australia in 2019 because of the cessation of your Australian citizenship and/or the Four Decisions. Rather, the information before the Commission indicates that you were not able to enter Australia in 2019 because you failed to satisfy the Public Interest Criteria 4004 (the PIC 4004) requirement attached to the Visitor Visa Application. It appears that anyone who acquired Australian citizenship by birth, whose Australian citizenship subsequently automatically ceased due to the operation of section 17 of the 1948 Act, who applies for an eVisitor visa and satisfies the PIC 4004, would have been issued with the visa and consequently allowed to enter Australia on such visa.

Based on the information before the Commission, I am of the opinion that had you paid the Debt, or otherwise entered into an acceptable payment arrangement for the Debt with Home Affairs, the PIC 4004 requirement would have been satisfied and that you may have been issued with the eVisitor visa to enter Australia. Home Affairs says it provided information regarding the payment arrangements in its emails of 12 September 2019 and 15 and 17 October 2019 to you; however, you did not respond to this−correspondence within the legislative timeframes, resulting in the Visa Refusal Outcome. While you say in your email of 11 March 2020 that the Minister for Home Affairs was informed of your late sister's then critical condition a month prior to the notification of the Visa Refusal Outcome of 4 December 2019, it is unclear why you did not respond to Home Affairs' correspondence of 12 September 2019 and 15 and 17 October 2019 within the legislative timeframes to attempt to make an acceptable payment arrangement for the Debt to satisfy the PIC 4004 requirement so to be able to enter Australia with the eVisitor visa.

Also, the rights contained in Article 12(2) of the ICCPR appear to be the most relevant to your claims. This Article provides that "Everyone shall be free to leave any country, including his own." I consider that Home Affairs' Visa Refusal Outcome did not prevent you from leaving the United Kingdom where you currently reside, but meant you were not able to travel to Australia as you did not meet the PIC 4004 requirement. Article 12(2) provides a right to leave any country, it does not provide a right to enter a specific country.

Secondly, lam of the opinion that the Visa Refusal Outcome was done in accordance with law, namely, section 65 of the 1958 Act, following your failure to meet the PIC 4004 of Clause 651.213 under the 1994 Regulations. I am also of the view that the PIC 4004 is arguably necessary to promote the financial sustainability and the proper use and management of public resources and it is not clear how the Visa Refusal Outcome might be considered inconsistent with other rights in the ICCPR.

Accordingly, I consider that Home Affairs' Visa Refusal Outcome, which resulted in you being unable to travel to Australia, may be permissible under Article 12(3).

For the above reasons, I consider that your claims that Home Affairs' Visa Refusal Outcome constitutes a breach of your right to freedom of movement under Article 12 of the ICCPR is lacking in substance.

(footnotes omitted)

11    I have focussed on that reasoning because in oral argument before the primary judge counsel for the Minister conceded that Mr Heiner had raised “[a] key point…about the failure to consider–the alleged failure to consider article 12(4) of the ICCPR” (see transcript of the hearing before the primary judge at p 29). In these proceedings the Minister accepts that Mr Heiner’s then albeit poorly articulated grounds included that the Commission had failed to consider Article 12(4) and, read beneficially involved two further grounds; those of taking into account irrelevant considerations and legal unreasonableness.

12    The learned primary judge summarised the submissions the Minister made in response to Mr Heiner’s complaint as follows:

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.

13    The learned primary judge rejected all of the grounds of review that Mr Heiner had advanced, including with respect to the above, compendiously, as follows;

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.

14    The primary judge’s reference in that passage to a “broader reason” and the extensive discussion at [45]–[51] which followed is that which occasioned my hesitation with respect to whether the judgment in Heiner might be interlocutory. However, with the benefit of the parties’ submissions, and upon reflection, I am satisfied that the true legal position is as they submit. Those observations were not dispositive. Mr Heiner’s application was refused “for the reasons advanced by the Minister”. That involved a final determination of the contentions he had advanced pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on the merits. Whether nonetheless the primary judge’s reference to there also being a “broader reason” that would have justified their rejection might influence the disposition of the Minister’s present interlocutory application will require further attention but for the present I accept that Mr Heiner is entitled, subject to the Minister’s interlocutory application, to have his appeal determined as of right.

15    For that purpose, Mr Heiner filed a notice of appeal dated 13 April 2021 in the following terms:

The Appellant appeals from the whole of the judgment of the Federal Court given on 16th March 2021 at Melbourne.

Grounds of appeal

1.     [2021]FCA212 dismissed application VID376-2020 without review of the Appellant’s grounds submitted 10Sep20, and overlooks questions to court submitted 26Oct20 that may expose serious anomaly in Australian citizenship law: (“S” refers to the section of [2021]FCA212 unless noted otherwise. “S17” refers to the section in Australian Citizenship Act as amended in 1984).

a.     Oration by the Appellant at hearing on 4Nov20 was interrupted at its start by Anastassiou J taking exception to “cover-up” being said. The Appellant was prevented from listing matters relating to the Australian Citizenship Act S17 (“S17”) as amended in 1984, of which judicial review may turn decisions that alienate the Appellant from his country, Australia. The items are in submissions to court, and are fundamental to the complaint to Australian Human Rights Commission (AHRC), that the Appellant is arbitrarily alienated from, and denied entry to his own country, Australia. Where AHRC dismissed the Appellant’s complaint without review, and Court dismissed judicial review of the AHRC decision, items that were not considered are:

i.     Was AHRC entitled to close the Appellant’s complaint without considering all relevant circumstances. For instance, was AHRC entitled by law to decide Australia, where the Appellant was born as a citizen and not naturalised to any other country, not his own country in order to avoid review of a human right violation?

ii.     Was legislation claimed to alienate the Appellant from Australia lawful at all, where the Constitution intentionally excluded any power for the purpose of alienating an Australian in Australia by any means. For instance, Irish post-nuptial citizenship was acquired in Melbourne and the Appellant had never emigrated.

iii.     Are the discretionary decisions to operate S17 to cease citizenship lawful at all, where no decision maker had assured statutory conditions to enable discretion were satisfied, or statutory power was held to exercise that discretion?

iv.     Where the 1995 Australian Citizenship Instructions (ACI) is the only guideline to make the discretionary decision on a person’s “dominant purpose” to find S17(1)(a) of the Citizenship Act, is it lawful that the ACI instructs the finding to be made on the pre-determined condition of what foreign citizenship is acquired?

v.     The mode of operation of S17 determine how Australian citizenship is lost, and pivotal to the Application for judicial review. The basis for S17 operation was submitted by the Appellant and not challenged by Minister, AHRC or Court. Federal Court in [1992]FCA238 established that S17 operates only by discretion and cannot operate automatically. However, anomaly is that no statute sets conditions to enable discretion, or to allow it to be exercised to operate S17. So S17 cannot operate lawfully “by discretion”, but cannot operate “automatically” either where no statute establishes how to find dominant purpose “automatically” in S17(1)(a). Put simply, S17 cannot operate lawfully and is operated only by misconduct, intentionally or unintentionally. An allegation of fraud against the AHRC decision maker for overlooking the anomaly on how S17 operates was dismissed by Anastassiou J adopting the same view of S17 operation as AHRC. It is irrelevant if that is “automatic” or “by discretion”. Every operation involves fraud. A more robust resolution to the anomaly than denying it judicial review is encouraged.

vi.     Was [2013]FCA617 entitled to find the Appellant did not acquire Irish post nuptial citizenship in relation to an act of marriage according to S17(2), without finding any alternative relationship the Appellant holds to Ireland to entitle that citizenship?

vii.     Was AHRC entitled by law to dismiss the allegation of arbitrary denial of a visa in 2019 dismissed without establishing why the same reason for rejection was not applied to any earlier application?

b.     Was Anastassiou J entitled by law to dismiss the Application for judicial review on the Minister’s request, submitted in around 1,000 pages, where judicial review may find the Appellant is arbitrarily alienated from, or denied entry to Australia? Moreover, were costs awarded against the Appellant as punishment and to deter against judicial review of anomalies of S17 where unanswered questions above and quality of [2021]FCA212 give reason for doubt.

c.     [2021]FCA212 omits details necessary for concise understanding:

i.     S3 omits text of S17(2) of the Citizenship Act that is essential to understand S4. The omitted text is: “S17(2): Subsection (1) does not apply in relation to an act of marriage”.

ii.     S4 claims “the Applicant automatically ceased to be an Australian” by relying on “Heiner v Minister of Immigration and Citizenship [2013]FCA617 at [45] (Marshall J)”. Review finds no reference to S17(1) that is relevant to VID376-2020 where [45] relates only to operation of S17(2).

iii.     S4 omits that [2013]FCA617 at [11] finds “S17” operates by discretion only in stating: “In considering S17 of the previous Act, the Tribunal had two major issues to determine. The first was whether Mr Heiner’s making of the declaration in 1999 was an act the sole or dominant purpose of which was to acquire Irish citizenship. The second was, if so, was it in relation to an act of marriage.” Nowhere in [2013]FCA617 is there found support for a view that S17 operates “automatically”. The view “the Applicant automatically ceased to be an Australian” relies on a fact that does not exist. Where [1992FCA238 and [2013]FCA617 align in view S17 operates “by discretion”, [2021]FCA212 is the first and only court decision with a view that S17 operates “automatically”. With no grounds supporting the principle that is fundamental to consider lawfulness of the Appellant’s alienation, the entire judgement should be rejected.

iv.     [2021]FCA212 omits that [2013]FCA617 at [13] & [17] found the decision by AAT under review was infected by “an unfortunate error” that rendered the Appellant stateless and had to be corrected. Also omitted is that Marshall J violated court rules to decide on behalf of AAT, relying on a finding that did not exist or was submitted as evidence. Moreover, omitted is notice of $23,916.54 costs awarded against the Appellant for essential correction of an error made by AAT, or that the same costs were arbitrarily used against the Appellant to deny him entering Australia eight years later at a time of great distress.

v.     [2021]FCA212 accepts the Minister’s view in S35 that is contrary to the solitary Department of Home Affairs guideline on how to operate S17(1) of the Citizenship Act. The 1995 Australian Citizenship Instructions (ACI) submitted in Page 168 of Notice of Contentions filed 26Oc21 filed by the Appellant admits operation is by discretion only. Contrary to Department guidelines. The Minister views S17 operation is “related to an amendment to legislation and thus was a complaint about processes in Parliament not justiciable in this Court”. The statement is not supported by law or evidence and, where S17 has operated to cease citizenship of an estimated 200,000+ Australians, is irrational.

vi.     [2021]FCA212 accepts the Minister’s view in S36 that asserts S17 operates “automatically” without support of law or evidence to counter the established view in law that S17 operates “by discretion” only, namely [1992]FCA316 (alternatively [1992]FCA238) and [2013]FCA617.

d.     Despite assurance by Anastassiou J at hearing that all material submitted by the Appellant would be reviewed, the decision to dismiss Application VID376-2020 is made only on the Minister’s view of Originating Application filed on 3Jun20. Subsequence submissions by the Appellant are omitted from review, including:

i.     Appellant’s Outline of Submissions filed 11Sep21 that revised grounds for judicial review of the Originating Application in accordance with provision AD(JR) S11(6).

ii.     Contentions of Fact and Law filed 26Oct20 in accordance with court instructions that includes summary of questions to court and contentions of fact and law, apart from vague references interspersed within the Minister’s view of the Originating Application.

e.     [2021]FCA212 in S44 “this application must be refused for the reasons advanced by the Minister”. Without reference to statutory conditions are satisfied to enable discretion, or statutory power to enable Anastassiou J to exceed powers of AD(JR) S16, the Application for judicial review is dismissed arbitrarily.

f.     [2021]FCA212 gives reason to dismiss the application for judicial review that relies on a fact that did not exist. In S49: “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 (Appellant’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”. No evidence supports the view of a prior application for judicial review or its final determination approximately seven years ago. The current instance relates to circumstances that did not exist any time earlier namely violation of the Appellant’s human rights by being denied entry to his own country, Australia. Anastassiou J dismisses the application for judicial review by relying on a fact that did not exist.

g.     [2021]FCA212 S44 finds AHRC was entitled to cease investigating the Appellant’s complaint on a notion that review would “re-open his complaint about the cessation of his Australian citizenship”. Where AHRC relied on review of all decisions to cease the Appellant’s citizenship to reach its decision to close the complaint, judicial review is denied by AHRC referring to an earlier determined decision. This premise effectively licenses decision makers to avoid judicial review by referring to a prior determined decision. This must not be a valid reason as it protects decision makers from accountability. Moreover, where S17 may require fraud of decision makers to operate, intentionally or not, immediate review would seem in the best interests of public officers rather than face questions at some future time.

h.     [2021]FCA212 S45, S46 and S47 do not establish that appeal of a decision by court is not heard by the same judge who made the decision. The best assurance found is in S46, the third hand opinion of a solicitor who dismissed all violations in court procedures in the making of the decision: “it is almost certain that Justice Marshall will not be the presiding judge considering the appeal”. Where court overlooking procedural anomalies in the making of the decision, and the likelihood appeal would be heard by the same judge who made the decision, in real terms I was denied the right to appeal. Government records record the violations for future review.

i.     [2021]FCA212 S48 offers an opinion that Appellant’s fundamental grievance is that his citizenship ceased by decision makers arbitrarily changing how S17 operates, either “automatically” or “by discretion” , to suit an outcome that matches earlier decisions with no regard that facts relied upon did not exist. The opinion overlooks when the Appellant made compliant to AHRC. The complaint was made in the month before his sister died. Further in S48, attempt is made to connect an earlier application for review by AHRC. The details omitted would show are that the application was dismissed without being determined on being filed more than 12 months after the decision to cease the Appellant’s citizenship. Also omitted was the compliant was of the only possible interpretation of the ACI to operate S17(1)(a) being on pre-determined grounds of racial discrimination. AHRC denial of review in 2015 has allowed the same instruction to infect all further decisions on S17. No relevance to earlier action is given and, in accordance with AD(JR)S10, none is relevant.

j.     [2021]FCA212 S50 and S51 claim Court process protects decisions made on S17 from review despite the likelihood of serious anomalies that unlawfully violate the human rights of Australians by the misconduct of public officers, intentionally or not. If that understanding is correct, concealing misconduct of public officers is favoured over abuse of human rights of Australians, in addition to the point noted in 1(g) above.

k.     [2021]FCA212 S52 awards costs in favour of the Minister who submitted around 1,000 pages to argue for the application for judicial review to be dismissed, with over 600 pages submitted within hours of hearing. Anomalies outlined in the foregoing suggest bad faith to avoid judicial review of S17 and other related matters. Where there is doubt, all law and evidence relied upon should accompany every decision including the awarding of costs.

Orders sought

1.     Order the finding of Constitutional power that alienated the Appellant in the same circumstances as when his citizenship was ceased, or acknowledge none exists.

2.     Order finding of statutory criteria and powers to lawfully operate S17 of the Citizenship Act as amended in 1984, or acknowledge none exists.

 3.     Quash [2021]FCA212 and all decisions found infected by errors in law.

4.     Conduct judicial review publicly based on the submissions of VID376-2020 according to law, evidence, and all submissions for 4Nov20 hearing.

16    In respect of the adequacy and form of Mr Heiner’s notice of appeal the Minister submits as follows:

8.     The Appellant’s “grounds of appeal” run for some five and a half pages. In form, the Notice of Appeal contains but one ground, being that the primary judge “dismissed application VID376-2020 without review of the Appellant’s grounds submitted 10 Sep 20, and overlooks questions to court submitted 26 Oct 20 that may expose serious anomaly in Australian citizenship law”. However, there then follows 11 sub-paragraphs (lettered (a)-(k)), some of which have sub-paragraphs of their own (numbered using Roman numerals). It is unclear whether paragraphs (a)-(k) are to be read as particulars to the one specified ground or as grounds in their own right.

17    The Minister’s many criticisms of Mr Heiner’s grounds of appeal are valid. No appeal court ought to be presented with a mish-mash of propositions purporting to stand as grounds of appeal in the form Mr Heiner has advanced them. Stripped of pejorative language I am satisfied that as expressed those grounds are, at best, likely to cause prejudice, embarrassment and delay. Moreover the orders Mr Heiner seeks in consequence of those grounds being made would not be available to an appeal court to make even assuming that his appeal might succeed.

18    I therefore am satisfied that the Minister must be correct that Mr Heiner’s pleadings (his grounds of appeal) are to be struck out. The more difficult question is whether Mr Heiner should then be given an opportunity to re-plead.

19    The Minister’s position is that Mr Heiner’s appeal, however recast, will be hopeless. Rather than allowing him to re-plead as would be futile, the Court should give judgment for the Minister in relation to the whole of the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) on the grounds that the Appellant has no reasonable prospect of successfully prosecuting the proceeding; or alternatively, pursuant to s 25(2B)(aa) of the Federal Court Act and/or r 36.11(2)(e) of the Federal Court Rules 2011 (Cth) on the basis that the Appellant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding is frivolous or vexatious and/or the proceeding is an abuse of the process of the Court.

20    Notwithstanding, the Minister properly accepts the Court must be cautious in exercising the power it possesses to summarily dismiss a proceeding: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer), French CJ and Gummow J at [24], Hayne, Crennan, Kiefel and Bell JJ at [60]. In determining whether it should do so the Court is to focus on substance rather than form: Spencer (French CJ and Gummow J at [23]; White Industries Australia Ltd v Seven West Media (2007) 160 FCR 298 per Lindgren J at [50].

21    For the reasons that follow I decline to enter judgment and I will grant leave to Mr Heiner, subject to conditions, allowing him to recast his grounds of appeal. That is because as matter of substance rather than form I apprehend it is possible to discern in what Mr Heiner contends by way of Ground 1(a)(i) of his infelicitously expressed appeal that he has sought to put in issue whether the learned primary judge erred in law when adopting the reasoning of the Minister in respect to the ground he had put before the court in his application for judicial review as I have referred to at [12] and [13] above.

22    I say nothing of what may or may not be merits of that proposition beyond stating my view that it is not self-evident that Mr Heiner would lack any reasonable prospect of successfully prosecuting such an appeal assuming a ground or grounds might be properly articulated. It is sufficient that I apprehend it to be not merely colorably arguable that the Commission may have fallen into one or more reviewable errors by failing to consider Mr Heiner’s complaint that he was a person who possessed rights under Article 12(4) of the ICCPR which rights had been denied to him.

23    The grounds for the basis of those contentions were, as counsel for the Minister conceded before the primary judge, available to Mr Heiner: see s 5(1)(e) and (f) of the ADJR Act.

24    The questions I am prepared to accept may form a proper basis for Mr Heiner to advance an appeal arise in the following way. Mr Heiner had made a complaint putting in issue the application of Article 12(4) of the ICCPR to his circumstances. There is no question that the Commission was apprised of the terms of that Article: it quoted Article 12 in full in its reasons.

25    However in respect of Article 12(4) the reasoning of the Commission is silent. Instead in regard to the application of Article 12 of the ICCPR to Mr Heiner the Commission reasoned:

Also, the rights contained in Article 12(2) of the ICCPR appear to be the most relevant to your claims. This Article provides that "Everyone shall be free to leave any country, including his own." I consider that Home Affairs' Visa Refusal Outcome did not prevent you from leaving the United Kingdom where you currently reside, but meant you were not able to travel to Australia as you did not meet the PIC 4004 requirement. Article 12(2) provides a right to leave any country, it does not provide a right to enter a specific country.

Secondly, l am of the opinion that the Visa Refusal Outcome was done in accordance with law, namely, section 65 of the 1958 Act, following your failure to meet the PIC 4004 of Clause 651.213 under the 1994 Regulations. I am also of the view that the PIC 4004 is arguably necessary to promote the financial sustainability and the proper use and management of public resources and it is not clear how the Visa Refusal Outcome might be considered inconsistent with other rights in the ICCPR.

Accordingly, I consider that Home Affairs' Visa Refusal Outcome, which resulted in you being unable to travel to Australia, may be permissible under Article 12(3).

For the above reasons, I consider that your claims that Home Affairs' Visa Refusal Outcome constitutes a breach of your right to freedom of movement under Article 12 of the ICCPR is lacking in substance.

26    Mr Heiner’s prolix and unfocussed submissions may have confused rather than crystallised the point but his complaint to the Commission had involved no suggestion that he had been prevented from leaving the United Kingdom where he had been living for some time after the loss of his Australian citizenship as would potentially be a complaint relevant to Article 12(2). Nor had he put in issue any lawful restrictions the United Kingdom might have imposed on his departure from that country as provided for in Article 12(3). On any available understanding neither of those questions had been the subject of his complaint.

27    To the contrary Mr Heiner’s complaint to the Commission had been advanced on the premise that, notwithstanding his loss of Australian citizenship (in consequence of his acquisition of Irish citizenship as a spousal entitlement) he had been, within the meaning of Article 12(4) of the ICCPR, arbitrarily deprived of the right “to enter his own country.”

28    Again it is important that I do not go beyond what is necessary to deal with the application before me but there was material before the Commission indicating that Australia was the country of Mr Heiner’s birth, it was where he had lived most of his life. It was where all of his family resided. A contention that Australia had remained, notwithstanding his statutory alienage, his home was not fanciful.

29    Mr Heiner’s written submissions in the judicial review proceeding before the primary judge explicitly contended (at 17(b)) that his complaint had not been addressed because it had been “substituted by an irrelevant review of ICCPR Art12 (1), (2) & (3)”.

30    Facially Mr Heiner’s application for judicial review thus engaged the learned primary judge in having to determine whether review pursuant to the ADJR Act was available to him by reason of the Commission either having taken irrelevant considerations into account in the exercise of its power (the terms of Article 12 (1), (2) and (3)) or not having taken a relevant consideration into account (the terms of Article 12(4)) in the exercise of its power. Both are available grounds of review under the ADJR Act. Neither do I dismiss that the same error might also be capable of being conceived of as the decision of the Commission reached having involved an error of law (as to the construction of Article 12 of the ICCPR) or its decision being so unreasonable that no reasonable person could have come to the conclusion it had. The potential for one or more review grounds available under the ADJR Act to overlap is commonplace.

31    I am therefore not persuaded that the Minister’s analysis which the primary judge adopted and relied on when disposing of those propositions is so pellucidly correct as would entitle me to conclude that Mr Heiner has no reasonable prospect of successfully prosecuting an appeal in respect of those issues. The adopted reasons of the learned trial judge as concern whether or not Article 12(4) was or was not an express mandatory consideration may be a side wind. An appeal court might be sceptical of the answer that was advanced in the Minister’s submissions when regard is had to Mr Heiner’s complaint and the circumstances as had been before the Commission. Equally I would not dismiss that it might be arguable that the Commission fell into reviewable error by reason of the decision maker having relied upon irrelevant considerations. That of course was as Mr Heiner had explicitly contended.

32    I should make three further observations to explain why I reject that there would be no arguable utility in permitting Mr Heiner to amend his appeal.

33    First in respect of a potential ground of appeal (assuming it were to be articulated in appropriate terms) in relation to the above it would not be subject to the “broader reason” which the primary judge identified at [44] as a further reason why Mr Heiner’s application had to be dismissed.

34    That is because the terms of Article 12(4) of the ICCPR are agnostic as to whether a person is a national, a citizen or an alien. It is uncontentious that for the purposes of the ICCPR a person’s “own country” may be one in which he or she has lived and made his or her home as an alien.

35    Second it is at least arguable that because the terms Public Interest Criteria 4004 (which I accept is part of the positive law of Australia) provided as a precondition to the issue of a visitor’s visa that Mr Heiner not have outstanding debts to the Commonwealth that the refusal of such a visa to him required the AHRC to conclude that Art 12(4) could not apply to his circumstances.

36    The ARHC is entitled to enquire into act or practice that may be inconsistent with or contrary to any human right; s11. An act or practice for that purpose may be one prescribed by law, yet still be found to be inconsistent with a human right. It is not self-evident that requiring a person (albeit an alien who has lost their citizenship) to discharge any indebtedness they have to the Commonwealth as a price of returning to visit a dying relative might not be capable of being characterised as “arbitrary” within the meaning of Art 12(4) when evaluated against the background of the indivisibility and universality of human rights the AHRC is charged with responsibility see: s10A. In that regard I note that such a criterion is not required for a five year resident return (Visa Subclass 155) as is available, to a person otherwise eligible, who has lost or renounced their Australian citizenship.

37    Third the Minister arguably over-eggs his submission that there would be no materiality in the error by reason of the refusal of the Minister’s department to enter into a conciliation process. The Department’s formal response to Mr Heiner’s complaint was not that it would refuse to participate. To the contrary the Department stated that in principle it was prepared to enter into such a process but was reserving its position for the present.

38    The Commission’s powers in any event are not those limited to assisting an applicant to conciliate their particular dispute. The Commission is possessed of extensive powers to investigate any complaint of a breach of human rights. If it saw fit, it would have been open to the Commission to report to the government that it had identified an inconsistency between the laws and regulations that were applied in Mr Heiner’s case and the ICCPR; see ss 21, 22 and 20A of the Australian Human Rights Commission Act 1986 (Cth). It is least arguable that any disinclination of the Department to involve itself in a conciliation; which in any event does to appear to have been the fact, necessarily would lead the Commission to have concluded an investigation had it addressed the true gravamen of Mr Heiner’s complaint; Article 12(4), rather than the straw men it gave attention to, Article 12(2) and (3).

39    The Minister fails to persuade the Court that Mr Heiner’s appeal, however recast, must be without any reasonable prospect of success.

40    I should however indicate that beyond the specific subset of issues I have addressed above I otherwise apprehend no viable appealable error in the reasoning of the trial judge. There is nothing in the sprawling grounds Mr Heiner has filed to lend support to that possibility.

41    I have earlier explained why the learned primary judge’s “broader reason” does not stand in the way of the relief Mr Heiner seeks on the ground I accept is at least arguable, assuming an appeal court might accept them. However the “broader reason” the learned trial judge expresses in detail at [45]–[51] (and none has been so identified) provides a potent alternative justification for concluding that there would be no utility in permitting Mr Heiner to replead any of the other contentions he has sought to advance. It is unnecessary to insert the reasoning of the primary judge in those paragraphs in these reasons: I adopt that reasoning by reference.

42    I will therefore confine Mr Heiner’s leave to file amended grounds of appeal to such grounds as put in issue whether the learned trial judge erred by failing to find that Commission fell into one or more reviewable errors as are available under the ADJR Act in dealing with his complaint that he was a person possessed of rights under Article 12(4) of the ICCPR which rights had been denied to him. I strongly urge Mr Heiner to seek legal assistance in drafting any amended grounds.

43    In his oral submissions Mr Heiner made it patently clear that his principal motivation in pursuing an appeal was to put in issue his loss of citizenship: a matter which any appeal as confined to the issues I have given leave to advance cannot provide a remedy. It may be that in those circumstances Mr Heiner will not choose to take advantage of the leave the Court has granted him; but that is not a reason to deny him that opportunity. However, this matter cannot be left in limbo: there must be a time-limit set for that right to be either exercised or lost.

44    I will order that any amended grounds of appeal in terms as Mr Heiner may seek to rely upon are to be filed and served by no later than 4:00pm AEST Friday 22 October 2021.

45    I will order that in default of his doing so the appeal be dismissed.

46    The Minister has been largely but not wholly successful. Having regard to that circumstance the appropriate order is that the costs of this interlocutory application be the Minister’s costs in the appeal.

Associate:

Dated:    20 September 2021