Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia

B. Background 10 The following background to the present application is substantially taken from the findings made by the appellate judge in her two judgments delivered on 8 February 2023: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74 (J1); Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 (J2). 11 The genesis of the claims advanced in the originating application is the applicant's involvement in proceedings in the Administrative Appeals Tribunal (Tribunal) and the Federal Circuit and Family Court of Australia (Division 2) concerning an offshore application by Joshua Buma Tukala for an Extended Eligibility (Class TK) (Subclass 445) visa (Extended Eligibility visa). The application for the Extended Eligibility visa was advanced by Mr Jean-Pierre Tukala Tukala and his wife, Ms Veronique Vela. Joshua is the adopted son of Mr Tukala. 12 Mr Tukala is a Congolese national. 13 In 2004, Ms Vela entered Australia and acquired Australian citizenship in 2007. 14 On 5 May 2016, Mr Tukala was granted a Partner (Temporary) (Class UK) (Subclass 820) visa (Subclass 820 visa) on the basis of his marriage to Ms Vela. 15 On 3 July 2017, Joshua applied, from overseas, for an Extended Eligibility visa. The application was sponsored by Ms Vela. An Extended Eligibility visa enables a dependent child to stay in Australia temporarily while a parent on a temporary visa applies for a permanent visa. Mr Tukala was identified on the visa application form as the relevant parent holding a temporary visa. 16 On 12 February 2020, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) refused Joshua's application for an Extended Eligibility visa as he was not satisfied Joshua met the relevant criteria. The delegate found that Mr Tukala was no longer a "visa holding parent" given that he had been granted a Partner visa (Permanent) (Subclass 801) visa on 28 August 2019 and no longer held a Subclass 820 visa at the time the delegate's decision was made: see cl 445.221 and cl 445.111 of Sch 2 to the Migration Regulations 1994 (Cth). 17 On 21 April 2020, Mr Tukala applied to the Tribunal to review the decision of the Minister's delegate to refuse the application by Joshua for an Extended Eligibility visa (review application). Mr Tukala made the review application in his capacity as "the sponsor or nominator" of Joshua, the Extended Eligibility visa applicant. Ms Vela was not named as an applicant on the review application. 18 The applicant appears to have completed the review application for Mr Tukala and was nominated as his representative on the application. The applicant further assisted Mr Tukala by replying to correspondence from the Tribunal on his behalf. 19 On 3 September 2020, the Tribunal dismissed the review application for want of jurisdiction. 20 Mr Tukala then brought an application for judicial review of the decision of the Tribunal in the Federal Circuit and Family Court of Australia (Division 2). The applicant assisted Mr Tukala in bringing the application for judicial review of the Tribunal's decision, as evidenced by the footer of the application. 21 On 1 July 2022, the primary judge dismissed the application for judicial review brought by Mr Tukala on the basis that the litigation "lacked reasonable prospects of success" and ordered that the Minister's costs be paid by the applicant pursuant to s 468F of the Migration Act 1958 (Cth) (Migration Act): Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525 (PJ or primary judgment). 22 The primary judge found that the applicant contravened s 486E of the Migration Act by encouraging Joshua and Mr Tukala to commence and continue migration litigation which has no reasonable prospects of success: at PJ [50]-[51]. Her Honour stated at PJ [55]: I accept that the encouragement Mr Kitoko provided to the applicants was well meaning and given with the best of intentions. However, his actions have resulted in an application being pursued in proceedings that have spanned more than [a] year and a half without reasonable prospects of success. I do not consider the fairest outcome to be that they are borne by the applicants in circumstances where Mr Kitoko appears to have been the driving force behind the litigation. I will accordingly make an order requiring that the Minister's costs be paid by Mr Kitoko, pursuant to s 468F of the Act. 23 A notice of appeal must be filed within 28 days after the date on which the judgment appealed from was pronounced or the order was made, pursuant to r 36.03(a)(i) of the Rules. Hence, the time to appeal against the decision of the primary judge on 1 July 2022, expired on 29 July 2022. 24 On 4 August 2022, Mr Tukala and Ms Vela filed an application for an extension of time to appeal against the orders of the primary judge dismissing their application of judicial review of the Tribunal's decision (first application). 25 On 19 October 2022, the applicant filed an application for an extension of time to appeal against the orders of the primary judge that he pay the Minister's costs pursuant to s 468F of the Migration Act (second application). 26 On 24 November 2022, the first application and the second application were heard by the appellate judge. In addition to appearing on the second application, the applicant appeared as an "Other Party" in support of the first application. 27 On 9 February 2023, the appellate judge delivered two separate judgments in which her Honour made orders dismissing both the first application and the second application. 28 Her Honour dismissed the first application on the basis that it was not reasonably arguable and reserved the decision as to costs: at J1 [80]-[84]. 29 Her Honour dismissed the second application on the basis that it had no reasonable prospects of success and ordered that the applicant pay the Minister's costs of the application: at J2 [47]-[48]. 30 The orders made by the appellate judge on 9 February 2023 were entered on 10 February 2023. 31 It is these orders which the applicant appears to take issue with in the interlocutory application he attempted to file on 21 February 2023. 32 For completeness, I note that on 21 March 2023, the appellate judge delivered a costs judgment against the applicant and ordered that he pay the Minister's costs of the proceeding, in relation to the first application, including the costs of an interlocutory application filed by the Minister on 23 February 2023: s 486F(1) of the Migration Act; Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241. Her Honour further made orders that the costs be awarded in a lump sum, fixed in the amount of $17,852, pursuant to r 40.02(b) of the Rules. The applicant does not appear to take issue in the interlocutory application with the orders made on 21 March 2023 by the appellate judge.

C. Grounds of Review 33 On 24 February 2023, the Registrar refused to accept the applicant's interlocutory application and other supporting documents submitted for filing. As explained above at [2], the Registrar rejected these documents for filing on the basis that the documents were an abuse of process of this Court, pursuant to r 2.26 of the Rules. 34 On 24 March 2023, the applicant filed the originating application seeking judicial review of the decision made by the Registrar to refuse to accept his documents for filing (application). 35 The originating application seeks to advance seven grounds of review (as written): Ground 1 grounds sub-section 5(2)(d) of AD(JR) that the making of the decision by National Registrar McCormick was an improper exercise of the power as including a reference to an exercise of a discretionary power in bad faith. … Ground 2 grounds sub-section 5(1)(b) of AD(JR) that procedures that were required by law to be observed by National Registrar McCormick in connection with the making of the decision were not observed; Ground 3 grounds sub-section 5(1)(c) of AD(JR) that National Registrar McCormick who purported to make the decision did not have jurisdiction to make the decision; Ground 4 grounds sub-section 5(1)(f) of AD(JR) that the decision involved an error of law, whether or not the error appears on the record of the decision; Ground 5 grounds sub-section 5(2)(a) or 5(2)(b) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to taking an irrelevant consideration into account in the exercise of a power, or failing to take a relevant consideration into account in the exercise of a power; Ground 6 grounds sub-section 5(2)(g) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; Ground 7 grounds sub-section 5(2)(j) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to any other exercise of a power in a way that constitutes abuse of the power by National Registrar McCormick. 36 The particulars provided to ground 1 included allegations of what is claimed to be a "Planned Secret Meeting" between the appellate judge and counsel appearing for the Minister. The applicant claims that he witnessed through the court video-link system the appellate judge return to the court room after reserving judgment and then saw her Honour "start the meeting with the Minister's barrister". He further claims that when her Honour realised that Mr Tukala, Ms Vela and the applicant were still "online or present inside the court room" as well as the Minister's barrister, her Honour raised her voice and stated "[applicant] why [are] you still online, leave the court immediately by clicking the off-line button located in the right corner of your computer". 37 The particulars to ground 1 were otherwise directed at a contention that the interlocutory application was seeking orders under r 39.04 and r 39.02 of the Rules for the setting aside of orders made by the appellate judge in the nature of orders variously referred to as "recalling", "reopening", "reviewing" or "reconsidering" a judgment or order. The particulars included references to the decision of the New South Wales Court of Appeal in Malouf v Prince (No 2) [2010] NSWCA 51 (McColl and Macfarlan JJA, Nicholas J) and the Supreme Court of New South Wales in The Owners-Strata Plan 47027 v McGinn [2018] NSWSC 1230 (Darke J). 38 No particulars were provided for grounds 2 to 7. They do not relevantly arise above a generalised recitation of recognised grounds for judicial review in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

D. Legal principles 39 Rule 2.26 of the Rules provides: 2.26 Refusal to accept document for filing - abuse of process or frivolous or vexatious documents A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 40 It is well established that a decision by a registrar, pursuant to r 2.26 of the Rules, is administrative in nature and thereby susceptible to judicial review under the ADJR Act: Markwell v Registrar of the Federal Court of Australia [2022] FCA 954 at [20] (Cheeseman J), citing with approval Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [49] (Marshall, Cowdroy and Buchanan JJ); Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [32] and [41] (Barker, Banks-Smith and Colvin JJ). 41 A registrar does not, when refusing to accept documents for filing pursuant to r 2.26 of the Rules, make any substantive assessment or judgment of the merits of the claims in the proposed proceeding: Ferdinands v Registrar Cridland [2021] FCA 592 at [12] (White J); Rana v Registrar Cridland [2021] FCA 848 at 10 (White J); Markwell at [39]. A registrar does not exercise judicial power in refusing to accept a document for filing, pursuant to r 2.26: Wijaya v Judicial Registrar of the Federal Court [2023] FCA 317 at [12] (Wheelahan J). The registrar is instead ensuring compliance with procedural requirement, by refusing to accept for filing documents which "on their face" are frivolous or vexatious or would be an abuse of the Court's process. 42 In Nyoni, the Full Court of this Court said at [33]: The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry…It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of this Court and for other parties to be required to attend.

E. Consideration 43 In addition to largely replicating the contentions in the particulars to ground 1 of the originating application, the submissions made by the applicant appear to incorrectly challenge the Registrar's decision on the basis that she failed to make a substantive assessment of the merits of the interlocutory application. The decision of the Registrar not to accept the interlocutory application and the other documents for filing, pursuant to r 2.26 of the Rules, was purely an administrative decision. It was not an exercise of judicial power. It did not call for a substantive assessment of the merits of the interlocutory application. 44 The fundamental hurdle for the applicant is that he is seeking to challenge, in this Court, a decision of a judge of this Court exercising appellate jurisdiction. That is unequivocally an abuse of process as the appellate jurisdiction of this Court has already been exhausted: see s 25(1AA)(a) and s 33(4) of the Federal Court of Australia Act 1976 (Cth). The Registrar was correct in refusing to accept the interlocutory application for filing. 45 The applicant seeks to overcome this fundamental hurdle by relying on r 39.02 and r 39.04 of the Rules and the decisions in Malouf and McGinn to contend that he is, in substance, asking this Court to set aside the orders made by the appellate judge on 9 February 2023 and entered on 10 February 2023, as if they had not been entered, by way of a "recalling", "reopening", "reviewing" or "reconsidering", not by way of an appeal. 46 The particulars to ground 1 in the originating application include the following contention at [10] (as written): However, in accord to Malouf v Prince (No 2) [2010] NSWCA 51, if an interlocutory application or notice of motion seeking to set aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may set aside or vary the judgment or order under r 39.04 as if the judgment or order had not been entered. 47 The reference to r 39.04 of the Rules is misconceived. 48 The New South Wales Court of Appeal in Malouf and the Supreme Court of New South Wales in McGinn were concerned with r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), not r 39.04 of the Rules: see Malouf at [7], [15], [24]; McGinn at [83], [84], [85]. 49 Rule 36.16 of the UCPR relevantly provides: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. … (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it- (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or … (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. … (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). 50 In stark contrast, r 39.04 of the Rules simply provides: 39.04 Varying or setting aside a judgment or order before it has been entered The Court may vary or set aside a judgment or order before it has been entered. 51 Rule 39.04 does not include any reference to the filing of any notice of motion to set aside or vary a judgment or order within 14 days, or any other time, after the date on which the judgment or order is entered. It is solely directed at the variation or setting aside of a judgment or order before it has been entered. It is, therefore, readily apparent that the reasoning in Malouf and McGinn cannot assist the applicant in his attempt to challenge orders that have been entered in this Court. 52 The other rule that the applicant seeks to rely upon is r 39.02 of the Rules. That rule provides that: 39.02 Time for compliance with orders A person ordered to do an act or thing or to pay money into Court must do so in the time specified in the order or, if no time is specified, within 14 days after the date of service of the order on the person. 53 It cannot be suggested that a decision to file an interlocutory application seeking to set aside orders is an order "to do an act or thing" or "to pay money into Court". 54 The position after a judgment or order has been entered is addressed in r 39.05 of the Rules: 39.05 Varying or setting aside judgment or order after it has been entered The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission. 55 The applicant does not seek to rely on r 39.05 of the Rules, but in any event, none of the preconditions to its operation are alleged to arise in the present context. 56 None of the other grounds relied upon by the applicant have merit. Any obligation of procedural fairness did not require the Registrar to give a statement of reasons beyond the explanation that it was an abuse of process to seek to challenge, in this Court, a decision of a judge exercising appellate jurisdiction. The decision not to accept the interlocutory application for filing and the communication to the applicant that it was not accepted as it would constitute an abuse of process could not, contrary to the submissions advanced by the applicant, result in any findings that the Registrar had: (a) committed a deliberate and intentional abuse of power to make critical findings of fact that were adverse to the applicant's claims; (b) engaged in conduct with either knowledge or reckless indifference that her conduct was invalid, unauthorised or beyond power or that it would probably cause or had caused injury or damage to the applicant; and (c) failed to engage in an "active intellectual process" with respect to the apprehended bias and procedural fairness claims. 57 The submissions made by the applicant are replete, with many citations from established authority relevant to judicial review of administrative decisions, but fail to provide any coherent explanation of how those principles are engaged in the present context. 58 The simple and inescapable fact is that the applicant, by seeking to file the interlocutory application, was attempting to challenge, in this Court, a decision by a judge of this Court, exercising appellate jurisdiction. As explained above at [44], once the appellate jurisdiction of the Court has been exercised, the Court's jurisdiction is exhausted. The decision by the Registrar not to accept the interlocutory application on the ground that it was an abuse of process is a complete answer to the judicial review grounds recited by the applicant.

F. Disposition 59 For the foregoing reasons, the originating application must be dismissed. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.