KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: Edelman J.
• Judgment Date: 04 August 2021
• Neutral Citation: [2021] HCA 24
• Court: High Court
• Docket Number: M95/2020

[2021] HCA 24

HIGH COURT OF AUSTRALIA

JUDGE: Edelman J

M95/2020

KDSP

Plaintiff

and

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Defendant

Representation

L G De Ferrari SC with M W Guo for the plaintiff (instructed by Victoria Legal Aid)

P D Herzfeld SC with G J Johnson and D J Helvadjian for the defendant (instructed by Sparke Helmore Lawyers)

Administrative law – Migration – Application for Safe Haven Enterprise Visa (“visa”) – Where first delegate of Minister held delegation to make decision under s 65 but not s 501 of Migration Act 1958 (Cth) to consider plaintiff's application for visa – Where referral process required first delegate to refer plaintiff's application to “Visa Applicant Character Consideration Unit” for character checks – Where second delegate of Minister refused to grant visa on character grounds pursuant to s 501 – Where Administrative Appeals Tribunal set aside decision of second delegate and decided that discretion under s 501 should not be exercised to preclude plaintiff's application for visa – Where Minister made personal decision under s 501A(2)(a) to set aside Tribunal's decision and substitute decision to refuse to grant visa – Whether internal departmental processes and policies unlawful – Whether referral process unlawful – Whether public interest criterion 4001 in Migration Regulations 1994 (Cth) invalid – Whether Minister came under duty under s 65 to grant visa – Whether second delegate had power to make decision under s 501 – Whether Administrative Appeals Tribunal had power to set aside decision by second delegate – Whether Minister had power to make decision under s 501A(2)(a).

High Court – Original jurisdiction – Practice and procedure – Application for constitutional and other writs, injunctions, declarations, and other relief – Where plaintiff brought parallel proceedings concerning same underlying subject matter in original jurisdiction of High Court and by special leave from Federal Court – Where special leave application dismissed – Where plaintiff could have raised many of grounds in special leave application – Where grounds would have been dismissed – Whether plaintiff's rights of appeal have been exhausted – Whether abuse of process – Anshun estoppel – Insufficient submissions to determine question – Application for extension of time to make further amendments – Last-minute application – Inefficiency – Delay.

Words and phrases – “amendment application”, “binary decision”, “character test”, “criteria for the grant of a SHEV”, “duty under s 65”, “extension of time”, “last-minute amendment application”, “lengthy delay”, “original decision”, “policy”, “public interest criterion 4001”, “referral process”, “refusal on character grounds”, “satisfaction”, “single decision”, “unlawful detention”, “validly prescribed criterion”.

Migration Act 1958 (Cth), ss 36, 47, 65, 501, 501A.

Migration Regulations 1994 (Cth), Sch 2, Pt 790, Sch 4, cl 4001.

ORDER

• 1. The plaintiff's application dated 8 June 2021 for further amendment of the amended originating application dated 1 April 2021 be refused.

• 2. The plaintiff's application for an extension of time be refused.

• 3. The application be dismissed.

• 4. The plaintiff pay the defendant's costs.

Edelman J.

Introduction

1 This application, for constitutional writs, declarations, injunctions, and other relief, in this Court's original jurisdiction, was brought by the plaintiff, KDSP, shortly after he filed a special leave application in this Court. This application and the special leave application were brought as parallel applications after the dismissal of KDSP's appeal to the Full Court of the Federal Court of Australia from a decision of the primary judge in the Federal Court of Australia.

2 The special leave application brought by KDSP from the decision of the Full Court was dismissed by this Court on 11 February 2021. This application in this Court's original jurisdiction raises new grounds that were not agitated in the Federal Court proceedings. KDSP submitted that at least one of the new grounds did not fall within the jurisdiction of the Federal Court. Nevertheless, many of the new grounds did fall within the jurisdiction of the Federal Court. Although the Minister made no submission to this effect, it is difficult to see why KDSP should not be treated as having been required to choose between commencing proceedings in the Federal Court and commencing proceedings in the original jurisdiction of this Court (albeit subject to possible remitter of some or all of the proceedings in the latter instance). In any event, having commenced proceedings for judicial review in the Federal Court and having appealed unsuccessfully to the Full Court, it was incumbent upon KDSP to raise in the special leave application all the issues in this Court that KDSP could raise on appeal. Had those issues been raised in that special leave application, they would have been dismissed in that application. Instead, KDSP sought to raise those grounds and others in a proceeding in this Court's original jurisdiction. The application was amended to raise further issues. Substantial affidavit material was filed, with senior counsel for KDSP seeking to cross-examine the primary witness for the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”). Then, the afternoon before the hearing, KDSP sought leave to amend the application again to raise more new issues.

3 One response by the Minister to KDSP's application is that none of the grounds raised can be agitated for the first time in this Court after KDSP's rights of appeal have been exhausted. This issue might have been put on the basis that many, if not all, of KDSP's grounds should have been raised in the special leave application. There is a long-standing principle that it is usually an abuse of process for this Court's original jurisdiction to be used in place of the statutory process of appeals 1. But although the Minister opposed the extension of time that was required for all the essential relief sought by KDSP, the focus of the Minister's written submissions was not upon abuse of process in this sense but upon the decision in Port of Melbourne Authority v Anshun Pty Ltd 2, asserting that these issues could, and should, have been raised in the Federal Court proceedings.

4 There may be much to be said for the Minister's Anshun estoppel submission, but there was little oral argument about the extent to which, on the facts, it was unreasonable for KDSP not to have raised these issues in the Federal Court proceedings. In the absence of full argument concerning the application of Anshun estoppel, and in the absence of any submission on abuse of process, I will deal with the arguments which were the focus of counsel. Nevertheless, the considerations underlying any abuse of process submission overlap substantially with considerations for the extensions of time required by KDSP. The extensions of time sought by KDSP are refused. And for the reasons below, to the extent that an extension of time is not required, the substantive application is dismissed.

KDSP's last-minute application for further amendment

5 Sometime after 2 pm on the day before the hearing of this amended application, KDSP notified the Minister and this Court that he proposed to further amend the application to add an entirely new ground to his application and also to add two new prayers for relief. Very little was said in oral argument about the merits of the two new prayers for relief, notwithstanding that KDSP was given the opportunity to make submissions on those prayers. And nothing was said about the merits of the new ground proposed to be included in the further amended application. The latter was unsurprising since the Minister had no practical ability to respond to the entirely new issue with only hours of notice and having also been provided on the morning of the hearing with a lengthy last-minute list of objections to the evidence that the Minister had proposed to tender (such evidence had been provided by the Minister to KDSP months earlier). KDSP simply sought to have the new ground remitted to the Federal Court if his further amended application for constitutional and other writs in this Court were unsuccessful. This would be in effect, although not in form, a third round of litigation concerning the same underlying subject matter.

6 The background to KDSP's application for further amendment is that the originating application was brought on 25 September 2020. The originating application was the subject of substantial amendments on 1 April 2021 after KDSP's special leave application had been dismissed on 11 February 2021.

The Minister provided his response to the amended application on 22 April 2021. KDSP replied on 4 May 2021. There matters stood until the afternoon before this hearing, when KDSP sought to raise a wholly new ground. Even if this new ground had been raised as late as 4 May 2021, in KDSP's reply, the Minister might have been able to address it in this proceeding. But by raising the amendment at the last minute, its effect, if it were allowed, would be to defeat the assumptions of the parties and the Court that this litigation would come to an end with this hearing

7 The only attempt at explaining the lateness of the new ground was the submission that senior counsel for KDSP had appeared on 3 June 2021 (six days prior to the hearing of this application) at a hearing, in the original jurisdiction of the Federal Court, in which the same ground had been raised. In oral submissions, senior counsel for the Minister said, without demur, that senior counsel for KDSP had been instructed in those proceedings since January 2021. Senior counsel for KDSP proffered no explanation for why this issue had not been raised in the ensuing six months prior to the...