Federal Court of Australia

NLJV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 844

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

KATZMANN J:

1    The applicant is a non-citizen with Egyptian nationality who was granted a protection visa in 2010. Since 14 August 2015, however, he has been held in immigration detention. His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) while he was serving a full-time prison sentence for various offences of violence (the cancellation decision). The Minister invited him to make representations about revocation of the cancellation decision. Section 501CA(4) gave the Minister the power to revoke that decision if he made representations in accordance with the invitation and the Minister was satisfied that he passed the character test (as defined by s 501(6)) or that there was another reason why the cancellation decision should be revoked. The applicant made representations in accordance with the invitation but the Assistant Minister, acting personally, was not satisfied of either matter and so declined to exercise the power in the applicant’s favour.

2    The applicant applied to the Court for judicial review of the Assistant Minister’s decision. That application was dismissed on 15 March 2018. But the applicant appealed and the Full Court upheld the appeal, quashing the decision of the Assistant Minister and ordering the Minister to reconsider the matter according to law: DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411.

3    It appears that on this occasion the Minister delegated the power to make the decision, as was open to him under s 496 of the Act, because, on 25 June 2019 a delegate of the Minister decided not to revoke the cancellation decision. The applicant applied to the Tribunal for review of that decision and, on 19 September 2019, the Tribunal affirmed the delegate’s decision.

4    The applicant now wishes to challenge the Tribunal’s decision. On 27 October 2022, he filed an application for an extension of time to enable him to do so. The application was supported by an affidavit, which attached a statement purporting to explain the lengthy delay. The affidavit was not sworn or affirmed. The applicant attributed this to “COVID restrictions there is no J.P. on the site”.

5    The explanation he gave for the delay was that, when he received the decision on 18 September 2019 there was “covid all around”; no welfare staff were present at the detention centre to help detainees with their court papers; and he is “not computer illiterate”, which I take to mean “not computer literate”. He went on to say (without alteration):

On 19 of September, I was advised by immigration case manager that I have an appointment with A.B.F and immigration.

Where I was advised that my papers are not in court and I was handed Federal court documents and assign to a new warfare staff to help me to apply for appeal.

I request his Honour to grant me extension so I can get Fair Justice a fair Trial for outcome of my appeal.

6    The affidavit was accompanied by a draft originating application. It sought a writ of certiorari to quash the Tribunal decision and an order to “reconsider the applicant’s application for review according to law and allow the applicant to apply for merits review by [the Tribunal]”. Two grounds were identified. The first was that the Tribunal “failed to consider an integer of [his] claim that squarely arose on the materials”. The second was that the Tribunal failed to give adequate reasons for its decision “by failing to give reasons for its conclusion”.

7    No particulars were given of either ground and no submissions were filed in support of the application. In the circumstances, the first of the two grounds is intelligible. With respect to the second, it is abundantly clear from the Tribunal’s decision record that the Tribunal gave reasons for its conclusion. Those reasons were summarised at [290]–[291]:

After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.

The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.

The reference to “the Direction” is a reference to Direction no. 79 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, made under s 499 of the Migration Act.

8    The explanation for delay is unsatisfactory for a host of reasons, not least because of its lack of detail. It appears to provide an explanation for one day after receipt of the application but none for the delay thereafter. During the course of the hearing today, the applicant added to the explanation. However, the additional information took the matter no further. He merely informed the Court that the papers had been forwarded to his solicitor, who informed him that she would not act for him anymore.

9    But there is a more fundamental problem with the application.

10    The applicant applied for judicial review of the Tribunal decision in 2019 (on grounds different from those he now wishes to raise) and on 12 March 2020, after a hearing at which he was represented by solicitors and counsel, Jagot J dismissed that application: DHS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 311. There was no appeal from that judgment. Although the pseudonyms are different, it is clear from the material before the Court that DHS17 and NLJV are one and the same person. The review Jagot J conducted was of the Tribunal’s decision in NLJV and Minister for Home Affairs (Migration) [2019] AATA 3646, which is the very decision the subject of the present application. Neither in the applicant’s application for an extension of time nor in his supporting affidavit did the applicant disclose the earlier judicial review proceeding.

11    The Minister filed an objection to the competency of the application based on the failure to disclose the earlier judicial review application when the present application was filed. The Minister also submitted that the application was an abuse of process such that, even if it were competent, the Court should exercise the power under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and summarily dismiss the application.

12    The Minister’s objection to competency is well founded. I have no alternative but to dismiss the application. It is not to the point that the grounds of review the applicant now raises were not raised in the original application.

13    Section 486D(2) of the Act provides that “a person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision” (emphasis added). The applicant’s draft application was completed using the form prescribed by r 31.22(1) of the Federal Court Rules 2011. That form draws attention to s 486D, requires an applicant to indicate whether he has previously brought a judicial review proceeding, and if so, to provide particulars of the title, file number and date of each proceeding, and the court in which it was brought.

14    Disclosure of other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision is a jurisdictional precondition to the making of the present application. See TCWY v Minister for Immigration and Border Protection [2018] FCA 804 at [29]–[33] (Perry J); DZY17 v Minister for Home Affairs [2018] 267 FCR 673 at [28]–[29] (Besanko, Griffiths and White JJ). In other words, the Court has no jurisdiction to entertain the application if the precondition is not satisfied. That means that the applicant’s failure to disclose the earlier proceeding in his originating application or his accompanying affidavit is fatal. For this reason, the application is not competent.

15    It was, of course, open to the applicant to appeal from the judgment and orders of Jagot J but, as I mentioned earlier, he neglected to do so — either within the prescribed time, namely 28 days after the date of judgment (Federal Court Rules 2011 (Cth), r 36.03(a)), or at all. Nor should his application be treated as an application for an extension of time to appeal when it makes no mention of the judgment and does not even advert to the proceeding with which it was concerned, when the applicant had been legally represented in that proceeding, and when he would have been well aware of his appeal rights, having exercised them successfully in 2018.

16    In these circumstances, it is strictly unnecessary to determine the Minister’s alternative argument. But I will say this. What amounts to an abuse of process “is insusceptible of a formulation comprising closed categories” (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ)). Nevertheless, it is well established that a court may permanently stay proceedings as an abuse of process whenever the use of the court’s procedures occasions unjustifiable oppression to a party or would “bring the administration of justice into disrepute”: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ); USB AG v Tyne (2018) 265 CLR 77 at [1] (Kiefel CJ, Bell and Keane JJ). “[M]aking a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel” (Tomlinson at [26], emphasis added).

17    It is certainly arguable that the present application is an abuse of process because, by seeking judicial review of a Tribunal decision that has already been the subject of judicial review, the making of it would tend to bring the administration of justice into disrepute. It is, in effect, if not by design, an attempt to circumvent the appeal process: cf. Van Gorp v Davy [2023] NSWCA 43 at [17] (Kirk JA, with whom Leeming JA agreed).

18    Whether or not the present application amounts to an abuse of process, it has no apparent merit, and, as I have already observed, the explanation for the delay is manifestly inadequate. For these reasons, even if the previous application had been disclosed upon commencement of the present one, I would have refused it.

19    It follows that the application must be dismissed with costs.

Associate:

Dated:    24 July 2023