Cockrell v Minister for Immigration and Citizenship

Federal Court of Australia|2009-03-27|Before: Besanko J, Kiefel JJ, Rares J

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 Marcus Cockrell commenced proceedings to challenge a decision of the Administrative Appeals Tribunal, given on 28 February 2007 to affirm a decision of a delegate of the minister that he had not been satisfied that Mr Cockrell passed the character test under s 501 of the Migration Act 1958 (Cth) and the delegate's exercise of the discretion under s 501(2) of the Act to cancel his visa.

Background 2 Mr Cockrell brought proceedings in this Court, when represented by counsel, which were decided by Besanko J: Cockrell v Minister for Immigration and Citizenship (2007) 100 ALD 52. An appeal to the Full Court of this Court was dismissed in September last year: Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345. On 11 February 2009 Gummow and Kiefel JJ refused special leave to Mr Cockrell to appeal against the Full Court's decision: Cockrell v Minister for Immigration and Citizenship [2009] HCASL 2. 3 Undeterred by his failure to convince the Full Court of any error in the tribunal's decision when he was represented by counsel, Mr Cockrell filed proceedings in this Court in January this year seeking to challenge, he says, collaterally, the decision of the tribunal. There are three respondents to the present proceeding: first, the minister; secondly, the tribunal; and thirdly, the Secretary of the Department of Immigration and Citizenship. 4 In an amended application dated 5 February 2009 Mr Cockrell set out the details of his present claims. He asserted that he is not an unlawful non-citizen as defined by s 14 of the Act, or alternatively, since 24 September 2001 has been a lawful non-citizen Australian permanent resident, notwithstanding the cancellation by the Minister on 1 June 2005 of his visa, and its affirmation by the tribunal in the decision to which I have referred. 5 He claimed the following relief: (1) an order in the nature of a writ of habeas corpus directed to the minister and the secretary seeking his release from immigration detention; (2) an order in the nature of mandamus requiring that release to occur; (3) an injunction prohibiting the secretary from further detaining him, or pursuing his removal or deportation under any provision of the Act by reason of either the decision of the delegate or of the tribunal; (4) a declaration giving effect to his second claim that since 24 September 2001 he has been a lawful non-citizen permanent resident, who holds a valid permanent resident's visa; (5) a writ of prohibition and/or an injunction preventing any of the respondents giving effect to what he described as, "any purported decision to cancel" his visa or affirm its cancellation, and thus to detain him on that basis; (6) costs against each of the respondents; and (7) aggravated, exemplary and compensatory damages from the minister arising out of his detention. 6 The minister and secretary (to whom I will jointly refer for convenience as "the minister") have filed a motion seeking to have the proceedings dismissed pursuant to O 20 r 5 as an abuse of the process of the court, or alternatively, under s 31A(2) of the Federal Court of Australia Act 1976 on the basis that Mr Cockrell has no reasonable prospect of successfully prosecuting the proceedings. Mr Cockrell has filed a lengthy written submission and spoken to it. The minister has also filed detailed written submissions dealing with the grounds as articulated, or perceived to be articulated in Mr Cockrell's affidavit sworn on 5 February 2009 in support of the amended application. That affidavit asserted that there were six bases to the challenge. The first three challenged the delegate's decision. Those challenges asserted that the minister (scil: the delegate): · had not afforded natural justice to Mr Cockrell; · had found that Mr Cockrell had a substantial criminal record on the sole basis of a sentence that had been quashed, thus contravening the prohibition contained in s 501(10)(a) of the Act, and acting outside the aliens' power under s 51(xix) of the Constitution; · had found him to have failed the character test, without finding he was not of good character. 7 Those challenges are hopeless because the operative decision in law was the decision of the tribunal that affirmed the delegate's decision. The decision of the tribunal was the operative act in the law which authorised his detention thereafter: see Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 and Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338. 8 The more substantive grounds were that the tribunal had: (1) failed to decide, according to law, whether it was satisfied that the criteria prescribed by s 501(6)(a) had been met. This was put on the basis, again, that Mr Cockrell contended that the tribunal had relied upon convictions that had been quashed, and did not find as a fact that he had a substantial criminal record; (2) failed to disregard the quashed convictions and sentences for the purposes of the character test, again, in contravention of s 501(10)(a); (3) both the minister and the tribunal acted in excess of the aliens' power under s 51(xix) of the Constitution, or in some other, unparticularised, manner acted in violation of the Constitution.

Mr Cockrell's criminal history 9 Mr Cockrell had been presented on an indictment before the District Court in Queensland, laid by a person who was not qualified to prosecute offences under the laws of Queensland, but who was qualified to prosecute them under laws of the Commonwealth. The presentment alleged four offences under the Criminal Code 1899 (Qld) of dishonestly obtaining credit and 15 offences under the Crimes Act 1914 (Cth) of using different aliases in order to fraudulently claim income tax credits, and opening and operating false bank and credit card accounts. 10 Mr Cockrell pleaded guilty to all of those charges. He obtained over $640,000 by this series of admitted frauds. He received sentences of one and a half years imprisonment on each count of opening a false account, and on each of the five counts of operating a false account. He did not appeal against those sentences or convictions. He was also sentenced on a count of attempting to destroy evidence for which he was given a cumulative sentence of one months imprisonment and, as I understand it, did not appeal against that conviction, but it may be put to one side in any event. 11 Mr Cockrell appealed to the Court of Appeal of the Supreme Court of Queensland against his conviction on the four counts presented under the Criminal Code 1899. That appeal was upheld for the reason I have stated: R v Cockrell [2005] 2 Qd R 448. Apparently, at least as far as the evidence before me shows, his appeals in this Court in respect of the eight other counts under the Crimes Act 1914 were not, determined at any time relevant to these proceedings. Those appeals concern three counts of dishonestly obtaining a financial advantage from the Commonwealth and five counts of attempting to obtain financial advantage. On each of those eight counts Mr Cockrell was sentenced to three and a half years imprisonment. By the time his appeal had been heard by the Court of Appeal, Mr Cockrell had served his minimum non-parole period for the convictions and sentences against which he did not appeal.

The Tribunal's decision 12 The tribunal said this about Mr Cockrell's criminal convictions: "The applicant conceded during the hearing that he did not pass the character test under section 501 of the Act." The tribunal then summarised the effect of the relevant provisions of s 501 and set it out in detail in its reasons. It noted that on 13 November 2003 the District Court had sentenced Mr Cockrell to imprisonment for terms exceeding 12 months. Thus, each of those terms of imprisonment met the criteria to constitute a substantial criminal record for the purposes of s 501(7)(c) of the Act. The tribunal then noted that the only issue before it was whether the discretion to cancel Mr Cockrell's visa should be exercised. 13 The tribunal set out the charges, referred to the pleas of guilty, and the fact that the Court of Appeal had quashed the convictions under the Code. The tribunal next referred specifically to the Commonwealth offences and noted that Mr Cockrell had appealed to the Federal Court against the eight counts to which I have referred, saying that the appeal did not entail any challenge to the legality of the convictions or the sentences imposed. The tribunal then said, that Mr Cockrell had not appealed from his convictions for the six offences that resulted in each sentence of one and a half years imprisonment, so that he failed the character test in s 501 of the Act irrespective of the outcome of his further appeal.

Re-litigating the unarguable 14 In some way, Mr Cockrell seeks to challenge the tribunal's finding as not being a finding that he had, first, failed the character test, and, secondly, satisfied the criterion in s 501(2) of the Act. That provides: "(2) The minister may cancel a visa that has been granted to a person if: (a) the minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the minister that the person passes the character test." 15 Relevantly, s 501(6)(a) provides that a person does not pass the character test if he has a substantial criminal record. Each of Mr Cockrell's unchallenged convictions and sentences for six terms of imprisonment of 18 months exceeded the minimum 12 month period of imprisonment provided in s 501(7)(c). It is unarguable that the tribunal reasonably suspected that Mr Cockrell did not pass the character test, because he could not possibly have done so with his convictions and sentences. Thus, Mr Cockrell was unable to satisfy the tribunal, standing in the place of the minister, to the contrary under s 501. Besanko J made this finding on Mr Cockrell's application for judicial review in which he was represented by counsel: Cockrell 100 ALD 54 [9]: "On any view, the applicant fails the character test in section 501 of the Act, and he did not suggest to the contrary." 16 In their judgment, dismissing the appeal Gray, Finn and Mansfield JJ said: Cockrell 171 FCR 346 [2]: "It is common ground that, because of his convictions for a number of criminal offences, the appellant did not pass the character test. The issue is whether the exercise of the discretion by the tribunal, in its task of reviewing on the merits of the decision of the minister's delegate, miscarried." 17 Gummow and Kiefel JJ recorded that Mr Cockrell did not dispute that he did not pass the character test, but that he had argued, nonetheless, that the discretion to cancel his visa should not be exercised in the circumstances: Cockrell [2009] HCASL 2[4]. 18 Mr Cockrell now seeks to argue that the tribunal had not made a finding that he had failed the character test. No right thinking person would regard that challenge as one which should be allowed to be raised in subsequent proceedings. This is because he had previously conceded he did not meet the character test. He had made it very plain, first, to the tribunal and, then, to the three levels of judicial review in which his original application was made that he failed the character test. In this Court, at first instance and on appeal, he had been represented by counsel. The proposition that he now seeks to raise is so unarguable that I am satisfied it is an abuse of the process of the Court for him to do so, and it should not be tolerated. In Walton v Gardiner (1992) 177 CLR 378 at 392 to 393 Mason CJ, Deane and Dawson JJ discussed the principles upon which court may find an abuse of process that should not be permitted to be engaged in, even if there were a use of the proceedings that the rules contemplated. They said that a superior court had an inherent jurisdiction to stay its proceedings on the ground of abuse of process, and that that jurisdiction extended to all those categories of case in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted to instruments of injustice or unfairness. They said that it had been long established that regardless of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can clearly be seen to be foredoomed to fail. They also noted that, among other grounds: "Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 19 Their Honours applied the well-known passage of Lord Diplock's speech in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 where his Lordship identified: "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party in the litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people." 20 I am of opinion that the challenge that Mr Cockrell wishes to raise as to whether he failed the character test, in addition to being hopeless, falls squarely within Lord Diplock's category of bringing the administration of justice into disrepute among right thinking people.

Alleged Use of Quashed Convictions 21 Next, Mr Cockrell argued that the tribunal took into account his quashed convictions when it considered the issue under par 2.7 of direction number 21 issued by the minister under s 499 of the Act. The tribunal summarised that paragraph of the direction as requiring it to take into account, as an indication of the seriousness of the offender's conduct against the community, the sentence imposed for the relevant crimes and to have due regard to his or her criminal record, including the number and nature of the offences, the time between offences and the time that had elapsed between the most recent offence, together with the repugnance of the crimes. The tribunal also noted that under par 2.8 it had to take into account any relevant factors provided by the non-citizen as mitigating factors. The tribunal said in [41]: "The tribunal notes that the four convictions against the Queensland Criminal Code were set aside on appeal. However, the applicant admitted that he engaged in the offending conduct that gave rise to those convictions, as well as the conduct that resulted in the eight pending appeal convictions for obtaining, or attempting to obtain a financial advantage. Substantial penalties, including significant non-parole periods resulted from those twelve convictions." Mr Cockrell argued that in this way the tribunal had regard to the penalties imposed by the Queensland District Court for the offences against the Criminal Code 1899. 22 In my opinion it is important to focus on the substance of the tribunal's reasons. It is trite law that the Court should not be concerned with mere looseness in the language, nor unhappy phrasing, of the reasons of an administrative decision-maker, and that those reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Courts must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The tribunal's phrasing in the passage I have quoted is one which I am satisfied involves only some looseness of language. It is clear that the tribunal was aware of its duty, under s 501(10)(a), not to have regard to the Queensland convictions which were set aside on appeal when it considered whether or not Mr Cockrell had failed the character test. The tribunal was not, however, precluded from having regard to the fact that Mr Cockrell had pleaded guilty to those charges, and there was no issue that he had engaged in very serious fraudulent conduct which, had he been properly prosecuted, would have attracted a substantial and significant penalty. In my opinion it is in that sense that the tribunal's reasons in [41] should be understood. 23 The tribunal recognised that the convictions, in terms, had been set aside on appeal, but was cognisant that they revealed very serious criminal conduct. It then concluded in [43] of its reasons that the offences were significant in number, and Mr Cockrell's conduct was: "Blatantly fraudulent affecting [as the minister's representative submitted] the Australian tax paying community and Australian financial institutions." 24 In my opinion, the tribunal was entitled to have regard to the admissions of guilt, and the substantive criminality which those admissions acknowledged, for the purposes of coming to a view as to the seriousness of Mr Cockrell's conduct against the community, and in the overall exercise of its discretion whether or not to cancel his visa. There was no reason, if this ground had merit, or any substance, why it could not have been or was not litigated in the proceedings taken by Mr Cockrell in 2007. 25 Gummow and Kiefel JJ observed that Mr Cockrell had put forward numerous grounds on which the tribunal was alleged to have erred in his application for special leave, including novel grounds which they identified as not enjoying sufficient prospects of success to warrant a grant of special leave. They said (Cockrell [2009] HCASL 2 at [9]): "No error has been demonstrated in the manner in which the tribunal exercised its discretion." 26 Mr Cockrell frankly acknowledged that he had raised this issue, at least, partially before the High Court. There are no application papers before me, and it is impossible to determine how and to what extent he did raise the issue. In any event, I am satisfied that it would be an abuse of the process of the court to permit it to be raised in the circumstances where he had every opportunity, with legal assistance, to challenge the lawfulness of the tribunal's determination, and did not take this point. 27 Mr Cockrell also argued that the tribunal was bound to ignore anything that occurred in relation to the convictions that had been set aside on appeal, because s 501(10)(a) provides: "For the purposes of the character test, a sentence imposed on a person is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified." 28 If the tribunal had regard to the sentences in what Mr Cockrell alleges is an impermissible way, and I do not consider that it did, the tribunal had regard to Mr Cockrell's pleas of guilty and his sentence, not in relation to the character test, but in relation to Mr Cockrell's conduct constituting his character in a general sense, for the purposes of its overall exercise of its discretion. In my opinion, even if there were some use of the convictions and sentences that were quashed by the Queensland Court of Appeal in the passage in [41] of the tribunal's reasons that had no relationship to the tribunal's consideration of the character test. Rather, it related to the question whether, in the exercise of the discretion under s 501(2), Mr Cockrell undoubtedly having failed the character test, his visa ought be cancelled. Since the tribunal stood in the minister's shoes it was entitled to have regard to these matters. 29 Here, the discretion to cancel a visa under s 501(2) is a discretion that authorises the minister to cancel the visa once the jurisdictional basis for its exercise has been established, namely that the minister reasonably suspects the person does not pass the character test, and the person does not satisfy him or her that the person passes the test. Such a discretion falls within the well-known category of one that is unconfined. The decision-maker is entitled to take into account any matter that is in his or her view relevant in the exercise of such a discretion, except so far as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors to which the tribunal or decision maker may have regard: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. The tribunal did not make any error in considering the objective seriousness and criminality of the charges under the Code to which Mr Cockrell had pleaded guilty and been (invalidly) sentenced to substantial terms of imprisonment.

Another new ground of challenge 30 Next, Mr Cockrell sought to raise another new ground. He claimed that the tribunal had failed to grapple with evidence before it, in coming to a conclusion that it did not accept his evidence on an issue concerning his ex-wife. He said that the delegate's decision had referred to a letter Mr Cockrell had written withdrawing his reliance on supportive statements by his ex-wife. The tribunal discussed some evidence in the period from late March to early April 2004 in which Mr Cockrell had relied on his ex-wife being supportive of his claim. 31 He had given evidence to it in relation to a submission he had made to the department that he was unaware that, when he made the statements, his ex-wife had filed for a divorce over a week before. He claimed that he only received notice of her filing on 29 March 2004, which was the day after he claimed that he had sent the submission that he had pre-dated 1 April. The tribunal said it did not accept that evidence and continued: "Even if his evidence as to the timing of the submission was accepted, the applicant did not resile from the statements he had made to [the department] in the submission and he made no attempt to correct them. When he was asked by the tribunal why he did not do so after he had received notice of his wife's divorce proceedings, he said that it was because he was 'fighting to keep the marriage'. There was nothing before the tribunal to support this and the applicant's evidence is again not accepted." 32 Mr Cockrell argued that because he wrote a letter on 1 October 2004 in which he stated that he withdrew all claims of support by his now ex-wife, as noted in the delegate's decision, the tribunal in some way failed to take that letter into account in its rejection of what happened six months beforehand. 33 I am unable to understand how this could possibly have any merit. But even if it did it was simply an error of fact. Mr Cockrell argued that this was a failure of the tribunal to grapple with evidence. I reject that submission. So far as the evidence reveals, the letter of 1 October 2004 had nothing to do with the point of the tribunal's findings about his conduct in March and April 2004, nor could it rationally be seen to have done so. Even if I am wrong in that, there is no error of law in the tribunal simply making a wrong finding of fact: Enfield City v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. 34 Mr Cockrell, again, admitted that this matter may have been touched on in his application for special leave to appeal, and that he could not answer why his lawyers had not brought it up. In my view, one answer may be that it was patently unarguable. I am satisfied that if I were to allow this ground to go forward it would be to permit Mr Cockrell to commit an abuse of the process of the Court. The argument has no prospect of success.

The claims for damages 35 Mr Cockrell argued that he was entitled to maintain his claims for damages because he had written a letter to the department in 2005 asserting that the delegate had taken into account the quashed convictions and that the department was, therefore, on notice that the delegate's decision had impermissibly contravened the injunction in s 501(10) not to take such matters into account. 36 There is no evidence before me of any such letter. But assuming, in Mr Cockrell's favour, that he could tender such a letter at a hearing, that does not demonstrate that his case has any articulated basis at the present time. It would be a matter for a specific pleading to identify whatever causes of action, or other claims he had, and whether or not these had a capacity to demonstrate some wrong warranting damages. The application is unsupported by a statement of claim or evidence. It is not an appropriate vehicle to litigate claims for damages. In my opinion, those claims are ones which are integrally bound up with Mr Cockrell's current attempt to challenge the tribunal's decision to affirm the delegate's decision to cancel his visa. 37 As presently articulated and formulated they are so devoid of any relevant content that they are embarrassing and vexatious, and ought be struck out.

Other challenges 38 Mr Cockrell's lengthy written submission raised some other attacks on the validity of the tribunal's decision. He asserted that the tribunal was not entitled to find that it was not satisfied that he was now drug free, and not at risk of further offending. In my opinion, that challenge, were it permitted to be made, would simply be to challenge the tribunal's lack of satisfaction with his evidence, a matter well within its competence and jurisdiction. If the tribunal made a wrong finding, it was entitled to do so without falling into a legal error, let alone a jurisdictional error: Enfield City 199 CLR at 154 [44]. He argued that the tribunal had to be positively satisfied of a likelihood that his conduct may be repeated. The question for the tribunal was whether or not it accepted his evidence on the point. Plainly it did not. 39 Mr Cockrell also claimed that somehow the decision of the tribunal contravened the aliens power, or the Constitution in some other way. I am wholly unable to understand the argument as having any substance at all. The power to make laws with respect to aliens extends to provisions such as s 501 of the Act. The manner of its application involves the minister, or other person exercising the minister's powers, under the section either correctly applying the law, or, if not, exceeding the jurisdiction that the Parliament was entitled to confer. That does not raise any arguable issue that the Parliament had exceeded its legislative powers. Nor can it be argued that a decision-maker who fails to act in accordance with the Act exceeded the constitutional power of the Parliament to make a law with respect to aliens. The legislative power was plainly available to enact s 501. There is no substance in this argument.

Disposition of the motion 40 The question for determination in an application under s 31A is whether Mr Cockrell has any reasonable prospect of successfully prosecuting these proceedings. That question is not answered by a finding that a party's pleading is defective, since pleadings may be rectified by amendments, so as to raise reasonable causes of action or defence. Thus, as French J explained in Fortron Automotive Treatments Pty Limited v Jones (No 2) [2006] FCA 1401 at [19]-[21], the fact that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is, provided that there is a reasonable prospect that by an amendment it could be successfully prosecuted or defended. He pointed out that in order to secure a judgment under s 31A the moving party must show that the other has no reasonable prospect of successfully prosecuting or defending the claim. That determination can be made by reference to pleadings where there is a defect in the pleadings that cannot be cured, or it can be dealt with by evidence. But, s 31A is not a vehicle for simply striking out parts of deficient pleadings. 41 These principles were approved by North and Emmett JJ and myself in Wills v Australian Broadcasting Corporation (2009) 253 ALR 228 at 230 [8], [15] and 235-236 [43]-[45]. I pointed out that proceedings involving parties who represent themselves posed particular difficulties for courts, and that self-represented litigants often have little legal training but frequently take considerable effort to try and make themselves familiar with aspects of the law of the court's procedures which they see as being relevant to their case. Mr Cockrell has grappled with the legal issues and has presented an articulate argument. But he has not been able to demonstrate that the relief he seeks in the first six paragraphs of his amended application have any reasonable prospect of success. 42 I am of opinion that I should give judgment for the respondents under s 31A in respect of those matters. Additionally, they are abuses of the process of the Court for the reasons I have given. 43 There is no basis for any claim for a writ of habeas corpus since Mr Cockrell's detention is legal, being pursuant to the decision to cancel his visa. Likewise, that decision being legally in place, there is no occasion on which it could be argued that orders in the nature of a writ of mandamus or for an injunction that he should be released from immigration detention or otherwise not dealt with as an unlawful non-citizen could now be maintained. Nor is there any possible way in which Mr Cockrell could succeed in obtaining orders in the nature of a writ of prohibition or injunction preventing the minister from acting on the cancellation of the visa. 44 Whether or not Mr Cockrell has some possible claim for damages in my opinion has not been disclosed on the evidence. The way in which that claim was articulated and with the lack of material put forward in support show that it amounts to an abuse of the process of the Court. It is also frivolous, vexatious, embarrassing and lacks any support on the material before me. For that reason the seventh claim should be dismissed pursuant to O 20 r 5 of the rules. 45 I will make orders accordingly. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Applicant: Appeared in person

Solicitor appearing for the First Respondent: Mr A Markus of the Australian Government Solicitor

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