BNC15 v Minister for Immigration and Border Protection

Counsel for the First Respondent: Mr PJ Corbould

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent SECRETARY DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Second Respondent

JUDGE: MCKERRACHER J DATE OF ORDER: 8 november 2017

1. The applicant's interlocutory application filed 26 October 2017 be dismissed.
2. The orders of this Court dated 27 October 2017 be discharged.
3. The applicant pay the first respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 On 8 November 2017, the applicant orally applied to discontinue his application. It was dismissed with costs. I considered it appropriate to do so, not only because the applicant pursued that course, but also as the application had no prospects of success for the following reasons.

FACTUAL AND PROCEDURAL BACKGROUND1 2 The applicant is a citizen of Fiji who was born on 18 June 1976. He arrived in Australia on 17 March 1990 as the holder of a Class UA, subclass T80 visa. On 4 January 1994 the applicant was granted a Religious Worker (Class UA, subclass 428) visa and on 26 May 2004 he was granted a Partner (Class BS, subclass 801) visa. 3 The applicant's Partner visa was cancelled under s 501 of the Migration Act 1958 (Cth) on 10 March 2010 following the applicant's conviction of various offences on 24 March 2005. 4 Following his release from prison the applicant was detained as an unlawful non-citizen on 31 May 2012 and has remained in immigration detention since that date. 5 On 13 June 2012, the applicant applied to the Department of Immigration and Border Protection, formerly the Department of Immigration and Citizenship, for a Protection (Class XA) visa (protection visa). The application was refused by a delegate of the former Minister for Immigration and Citizenship on 9 August 2012 and on 14 September 2012 the delegate's decision was affirmed by the former Refugee Review Tribunal. 6 On 27 September 2012, the applicant filed an application in the Federal Magistrates Court (No PEG225/2012) for judicial review of the Tribunal's decision. The application was dismissed by Judge Burchardt on 14 May 2013: WZARI v Minister for Immigration [2013] FCCA 217. 7 On 24 May 2013, the applicant appealed from Judge Burchardt's judgment to this Court in proceeding number WAD 161 of 2013. The appeal was dismissed by Justice Siopis on 9 August 2013: WZARI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 788. 8 On 6 September 2013, the applicant applied to the High Court of Australia (No P44/2013) for special leave to appeal. On 13 December 2013, Kiefel and Keane JJ dismissed the application: WZARI v Minister for Immigration and Multicultural Affairs and Citizenship [2013] HCASL 201. 9 On 29 January 2014, an officer of the Department conducted a pre-removal clearance assessment in relation to the applicant and found that his removal to Fiji did not raise concerns relating to Australia's non-refoulement obligations. 10 In February 2014, some personal information about the applicant was released in the data breach and by letter dated 12 March 2014 the second respondent wrote to the applicant expressing deep regret for the data breach. The letter also stated that '[t]he Department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes'. 11 By letter from the Department dated 14 January 2015, the applicant was notified that the Department had commenced an international treaties obligations assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia's non-refoulement obligations. The applicant was advised that any protection claims he may have in relation to the data breach would now be assessed through the ITOA. He was invited to provide any further information which he would like to have taken into consideration. The applicant responded to this invitation and a further invitation from the Department on 4 May 2015 inviting him to comment on information relevant to his ITOA. 12 The ITOA was finalised on 15 July 2015 with a finding that Australia's non-refoulement obligations were not engaged. The applicant was advised of the outcome of the ITOA by letter from the Department dated 15 July 2015. 13 On 23 July 2015, the applicant commenced proceedings in the Federal Circuit Court of Australia (No PEG347/2015) seeking an injunction and declarations arising from the data breach. Those proceedings were adjourned pending determination of the first respondent's appeal from the judgment of the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1. 14 On 27 July 2016, the High Court delivered judgment in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180. 15 On 8 August 2017, the applicant's application was heard in the Federal Circuit Court by Judge Smith who dismissed the application and gave ex tempore reasons for judgment. Written reasons for judgment were published on 5 September 2017: BNC15 v Minister for Immigration and Border Protection [2017] FCCA 2094. 16 On 25 August 2017, the applicant appealed from Judge Smith's judgment to this Court (No WAD 431 of 2017). On 21 September 2017, a Registrar made directions to prepare the appeal for hearing. 17 The applicant requested that he be removed from Australia and on 29 September 2017, the parties signed a consent to the making of an order dismissing the appeal. 18 On 2 October 2017, I made a consent order dismissing the appeal. 19 On 26 October 2017, the applicant subsequently revoked his request for removal and filed an interlocutory application seeking an injunction preventing his removal 'until the conclusion of this matter'. The application was supported by the applicant's affidavit sworn on 24 October 2017 setting out grounds for an extension of time. 20 On 27 October 2017, I issued an injunction restraining the first respondent, by himself or by his department, officers, agents or delegates, from removing the applicant from Australia until further order of the Court and adjourned the applicant's application to 8 November 2017. 21 On 1 November 2017, the applicant sent by fax to the Registry of the Court: (1) an application in a case, in a Federal Circuit Court form, dated 29 October 2017 seeking a referral for legal representation; (2) an application dated 24 October 2017 for an extension of time to file a notice of appeal; (3) a further copy of his affidavit sworn on 24 October 2017 in support of his application for an extension of time; and (4) an undated notice of appeal from the judgment of Judge Smith given on 8 August 2017. 22 At the time of doing so, I informed the applicant that his 'appeal', as there expressed, had very dismal prospects. I urged him to reconsider the grounds and, if possible, to obtain legal advice. The interim relief was granted only to enable those possibilities and because to undo the deportation would be difficult. 23 On 7 November 2017, the applicant sent by facsimile to the Registry of the Court a character reference from the applicant's father. 24 At the hearing on 27 October 2017, the applicant made clear that he had just changed his mind, which I understood to be both about proceeding with the 'appeal' (he had 'given up') and, later, about discontinuing.

INTERLOCUTORY APPLICATION 25 The applicant's interlocutory application filed in this matter on 26 October 2017 was incompetent as the appeal proceedings were finalised pursuant to the consent order on 2 October 2017 dismissing the appeal. 26 Judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest: Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 (at [35]); r 39.11(3) of the Federal Court Rules 2011 (Cth). 27 The applicant has not sought to set aside the order dismissing his appeal and, in any event, there is (in this case) no basis on which I could have set aside the consent dismissal. The consent order was entered on 2 October 2017 and there are only limited circumstances in which the Court can vary or set aside a judgment or order after it has been entered: see r 39.05 of the Rules. None of those circumstances exist in the present case. 28 The applicant seeks an interlocutory application for an injunction preventing his removal 'until the conclusion of this matter.' In this regard, the basis on which the Court can grant an injunction rests on the existence of a valid appeal. As the matter has already concluded, there is no longer an extant appeal or any other substantive proceeding before the Court which provides a foundation for the applicant to make an interlocutory application and for the Court to grant an injunction.

EXTENSION OF TIME 29 It appears the applicant may be seeking an extension of time to lodge a fresh appeal from the Federal Circuit Court judgment of Judge Smith given on 8 August 2017. The application would have no prospects of success and provides no basis for the grant of an injunction preventing the applicant's removal. 30 The principles applicable to an application for an extension of time are well-established. The Court will generally have regard to the length of the applicant's delay in lodging the appeal, the reasons for the delay, the merits of the proposed appeal and the prejudice to the respondent if the extension was granted: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (at 348-349); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 (at [6]). 31 In this matter an appeal would have no prospects of success for the following reasons: (a) there is no satisfactory explanation for the delay; and (b) any appeal would be barred by the principles of res judicata and, alternatively, Anshun estoppel: as explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 32 Each of these matters is addressed below.

Delay 33 The applicant's affidavit sworn on 24 October 2017 sets out various grounds in support of his application for an extension of time. Those grounds make general, unparticularised assertions of error by the Federal Circuit Court and the importance of the applicant's case, but provide no explanation of the circumstances in which the applicant now seeks to pursue an appeal after having previously consented to the dismissal of his appeal. 34 I treat the applicant's consent to the dismissal of his earlier appeal as an indication by the applicant that he was prepared to accept that the Federal Circuit Court's judgment was correct and that he did not intend to challenge that decision further in this Court: see Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 per Goldberg J (at [14]) and the cases there cited. If it is the case that the applicant simply changed his mind about pursuing an appeal, that is not a satisfactory explanation which would weigh in favour of the grant of an extension of time to appeal.

Res judicata and Anshun estoppel 35 The applicant's notice of appeal filed on 25 August 2017 contained the following grounds of appeal: (a) His Honour erred when he did not find that the Minister still had not undertaken the normal departmental process promised and commenced by the Secretary's letter of 12 March 2014 and as detailed in the High Court of Australia's judgment of SZSSJ 259 CLR 180; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 (at [52]-[55]). (b) His Honour erred when he did not find that the applicant had been denied procedural fairness in that the consideration of the Minister's exercise of his personal power under ss 48B, 195A or 417 of the Act has not proceeded notwithstanding the commencement of consideration of that process by the Secretary's letter dated 12 March 2014 and as detailed in the High Court's judgment in the matters of SZSSJ 259 CLR 180; SZTZI (in [52]-[55]). (c) His Honour erred when he did not find that the applicant had been denied procedural fairness by the ITOA officer when he did not put to the applicant for comment some of the reasons that he used when he gave the applicant an adverse finding. (d) His Honour erred when he did not find that the officer conducting the ITOA did not make a finding with no evidence. 36 Identical grounds of appeal are contained in the undated notice of appeal faxed to the Court by the applicant on 1 November 2017. 37 The consent dismissal of the applicant's appeal on 2 October 2017 prevents issues raised in that appeal from being re-litigated in a fresh appeal: Somanader per Merkel J (at [54] and [65]); Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036 (at [12]). 38 Even if the applicant sought to rely on new grounds of appeal not previously raised in the appeal which was dismissed, he would, in my view, be estopped from bringing a fresh appeal based on the Anshun principle: Daniel (at [24]) (leave to appeal from the judgment of Goldberg J in Daniel was refused by Weinberg J in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395. His Honour stated (at [11]), that he could see no basis upon which the decision of Goldberg J could be impugned); Hassen (at [12]).

Merits of an appeal 39 In any event, an appeal from the judgment of the Federal Circuit Court would have no prospects of success. 40 As the Federal Circuit Court ex tempore judgment notes, the applicant's grounds of application in the Federal Circuit Court proceedings were in the form of a template containing 19 grounds of review which have been considered and dismissed by several judges of the Federal Circuit Court and this Court: see for example, the judgments of Judge Smith in AKR15 v Minister for Immigration and Border Protection (2015) 297 FLR 224, Judge Driver in CDM16 v Minister for Immigration and Border Protection [2016] FCCA 2758, Judge Street in AKD15 v Minister for Immigration and Border Protection [2016] FCCA 2740, Judge Lucev in BTA15 v Minister for Immigration and Border Protection [2017] FCCA 417 (BTA15 FCC) and AQF15 v Minister for Immigration and Border Protection [2017] FCCA 977 and Judge Young in ALY15 v Minister for Immigration and Border Protection [2017] FCCA 406, BQI15 v Minister for Immigration and Border Protection [2017] FCCA 1049 and BIG15 v Minister for Immigration and Border Protection [2017] FCCA 1051. In BTA15 v Minister for Immigration and Border Protection [2017] FCA 422 (BTA15 FCA), Gilmour J (at [19] and [21]) found that there was no error in Judge Lucev's decision in BTA15 FCC. 41 The applicant's case was indistinguishable from those other cases and, consistently with those decisions, Judge Smith found that none of the applicant's grounds supported the applicant's application for injunctive and declaratory relief and dismissed the application. His Honour's reasons disclose no error. 42 The grounds of appeal in the applicant's notice of appeal filed on 25 August 2017 and the notice of appeal faxed on 1 November 2017 raise new grounds which were not raised before the Federal Circuit Court. The applicant would require leave to raise those grounds on appeal and leave should be refused as they lack merit and no explanation has been provided for the failure to raise them in the Federal Circuit Court: Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 (at [39]-[44] and [46]); VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 (at [48]). 43 The grounds of appeal are similar to those considered by Judge Lucev in BTA15 FCC (at [53]-[65]) and BNW15 v Minister for Immigration and Border Protection [2017] FCCA 1737 (at [7]-[18]). In BTA15 FCA per Gilmour J (at [19] and [21]), found that there was no error in Judge Lucev's decision in the former case. 44 For the reasons given by Judge Lucev, the grounds now sought to be raised on appeal by the applicant have no merit.

APPLICATION FOR INTERLOCUTORY INJUNCTION 45 In BTA15 FCA and ALY15 v Minister for Immigration and Border Protection [2017] FCA 281, the Court considered appeals from judgments of the Federal Circuit Court in relation to the same or similar template grounds of application advanced by the applicant in the Federal Circuit Court proceedings. In both cases, the Court refused to grant interlocutory injunctions preventing the removal of the applicants pending the hearing and determination of their appeals. 46 The applicant has not demonstrated any prima facie case or a serious issue to be tried that would justify the grant of an interlocutory injunction preventing his removal from Australia pending the hearing and determination of any appeal.

CONCLUSION 47 The injunction issued on 27 October 2017 will be discharged and the applicant's interlocutory application for an injunction will be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.