FEDERAL COURT OF AUSTRALIA Francis v Administrative Appeals Tribunal [2016] FCA 639 Appeal from: Ronald Francis v Australian Information Commissioner [2015] AATA 936 File number: SAD 10 of 2016 Judge: BESANKO J Date of judgment: 2 June 2016 Catchwords: PRACTICE AND PROCEDURE – summary judgment – whether applicant has reasonable prospect of successfully prosecuting proceeding - Federal Court of Australia Act 1976 (Cth) s 31A – Federal Court Rules 2011 (Cth) r 26.01(1)(a) ADMINISTRATIVE LAW– appeal against decision of the Administrative Appeals Tribunal – where Tribunal conducted a review of decision made by the Information Commissioner to make a vexatious applicant declaration – where Information Commissioner satisfied that a particular access action involves an abuse of process – Freedom of Information Act 1982 (Cth) ss 89K, 89L Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 40A, 42B, 44 Federal Court of Australia Act 1976 (Cth) ss 31A, 56 Federal Court Rules 2011 (Cth) rr 19.01, 26.01 Freedom of Information Act 1982 (Cth) ss 48, 49, 50, 51, 51A, 51B, 55, 58AA, 89K, 89L Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Francis v Department of Defence [2005] FCA 100 Haritos and Another v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Re Francis and Department of Defence [2004] AATA 33 Re Francis and Department of Defence [2009] AATA 549 Re Francis and Department of Defence [2010] AATA 780 Re Francis and Department of Defence [2012] AATA 838 Rogers v The Queen (1994) 181 CLR 251 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Walton v Gardiner (1993) 177 CLR 378 Date of hearing: 22 March 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 69 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent entered a Submitting Notice save as to costs Counsel for the Second Respondent: Mr J Davidson Solicitor for the Second Respondent: Australian Government Solicitor ORDERS SAD 10 of 2016 BETWEEN: RONALD WILLIAM FRANCIS Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent DEPARTMENT OF DEFENCE Second Respondent JUDGE: BESANKO J DATE OF ORDER: 2 June 2016 THE COURT ORDERS THAT: 1. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) the appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: Introduction 1 Mr Ronald William Francis has brought an appeal against a decision of the Administrative Appeals Tribunal ("the Tribunal"). The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") and is limited to an appeal on a question of law. The Tribunal has filed a submitting appearance to the appeal. 2 The other respondent to the appeal is the Department of Defence ("the Department"). It has issued an interlocutory application in which it seeks an order for summary judgment on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) ("the Rules"). In the alternative, and to the extent to which an order for summary judgment is not made, the Department seeks an order that the applicant provide security for costs in the amount of $10,000 (or such other amount as the Court may order) and a stay of the proceeding until security for costs is provided pursuant to s 56 of the Federal Court of Australia Act and r 19.01 of the Rules. It is this application which is the subject of these reasons. The Department's application is supported by an affidavit of a solicitor employed by the Australian Government Solicitor. 3 The applicant appears in person and has prepared the documents he has filed in connection with the appeal. From the time the appeal was instituted, the Department has contended that the applicant has not identified a question of law in relation to the appeal. An overview of the documentation filed by the applicant is as follows. The notice of appeal was accompanied by an affidavit sworn by the applicant on 22 December 2015 which annexed two documents which set out the applicant's challenges to the Tribunal's findings and his proposed questions of law. They are marked exhibit B1 (challenges to the Tribunal's findings) and exhibit A1 (proposed questions of law). I will refer to the second of these documents as the December 2015 document. At the first directions hearing, I adjourned the proceeding for a period of approximately three weeks to give the applicant the opportunity to consider whether he wanted to amend his documents. The applicant filed two further affidavits, one addressing the Department's application for security for costs, and the other responding to the Department's application for summary judgment. In addition, the applicant handed up documents at the directions hearing on 18 February 2016. One of these documents was entitled "Amended Notice of Appeal and Amended Notice of Stated Grounds in the matter SAD 10/2016 before his Honour Justice Besanko". I will refer to this document as the February 2016 document. The Department prepared a document which attempted to arrange the applicant's purported questions of law as set out in the December 2015 document and the February 2016 document into what it described as "seven overarching categories". 4 The principles which apply to the existence and exercise of the Court's jurisdiction under s 44 of the AAT Act were identified by the Full Court of this Court in Haritos and Another v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at 341-342 [62]. The principles which apply to the exercise of the Court's jurisdiction to order summary judgment under s 31A of the Federal Court of Australia Act and, in particular, where it is alleged that an applicant has no reasonable prospect of successfully prosecuting the proceeding were identified by the High Court in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [1], [25] per French CJ and Gummow J; at [51]-[60] per Hayne, Crennan, Kiefel and Bell JJ. 5 In this case, I have concluded that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The questions he identifies are either not questions of law or not questions of law which arise or the facts or insofar as they might be characterised as questions of law, they have no reasonable prospect of success. The Decision 6 The Tribunal conducted a review of a decision made by the Information Commissioner under s 89K of the Freedom of Information Act 1982 (Cth) ("the FOI Act"). The Information Commissioner made a declaration under that section that the applicant was a vexatious applicant. The declaration he made was in the following terms: 1. The Department of Defence is not required to further process the application made by Ronald Francis under s 48 of the FOI Act on 7 January 2014. 2. The Department of Defence is not required to consider any application by Ronald Francis under s 48 of the FOI Act to amend or annotate a document that was the subject of an amendment application considered by the Administrative Appeals Tribunal in any proceeding referred to in clause 3, unless Ronald Francis has applied in writing to the Information Commissioner to make the application and the Information Commissioner has granted written permission for the application to be made. 3. The proceedings of the Administrative Appeals Tribunal to which clause 2 applies are: Re Francis and Department of Defence [2004] AATA 33 Re Francis and Department of Defence [2009] AATA 549 Re Francis and Department of Defence matter no 2009/0278 Re Francis and Department of Defence [2010] AATA 780 Re Francis and Department of Defence [2012] AATA 838 7 On the applicant's application for review, the Tribunal upheld the substance of the Information Commissioner's decision, but varied the declaration so that it read: 1. The Department of Defence is not required to further process the application made by Ronald Francis under s 48 of the FOI Act on 7 January 2014. 2. The Department of Defence is not required to consider any application by Ronald Francis under s 48 of the Freedom of Information Act 1982 to amend or annotate the following documents unless Ronald Francis has applied in writing to the Information Commissioner to make the application and the Information Commissioner has granted written permission for the application to be made: (i) AF Med 1 Form dated 17 March 1972; (ii) AF Med 1 Form dated 14 July 1972; (iii) AM 146z form. The Relevant Legislative Provisions 8 Section 48 of the FOI Act gives a person who claims that a document of an agency which contains personal information about him or her that is incomplete, incorrect, out of date or misleading and that has been used, is being used or is available for use by the agency for an administrative purpose, the right to apply to the agency for an amendment or an annotation of the record of that information kept by the agency. Section 49 of the FOI Act sets out the matters which must be contained in such an application. Sections 50, 51, 51A and 51B of the FOI Act set out the circumstances in which a record of personal information may be amended or be the subject of an annotation. The key substantive criterion in s 50 of the FOI Act which deals with an amendment is that the record of personal information is incomplete, incorrect, out of date or misleading. 9 Part VIII Division 1 deals with vexatious applicants. By s 89K(1) of the FOI Act, the Information Commissioner is given the power by written instrument to declare that a person is a vexatious applicant. The Information Commissioner may do that on the application of an agency or Minister, and the agency or Minister has the onus of establishing that the Information Commissioner should make the declaration. The person who is the subject of the application is to be given notice of the application and the opportunity to make written or oral submissions. As far as the grounds upon which a declaration may be made are concerned, a key concept is that of engaging in an "access action". That concept is defined to include making an application under s 48 of the FOI Act. There are three grounds upon which a declaration that a person is a vexatious applicant may be made. They are set out in s 89L(1) of the FOI Act which is as follows: 89L Vexatious applicants—grounds for declaration (1) The Information Commissioner may make a vexatious applicant declaration in relation to a person only if the Information Commissioner is satisfied of any of the following: (a) that: (i) the person has repeatedly engaged in access actions; and (ii) the repeated engagement involves an abuse of the process for the access action; (b) a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action; (c) a particular access action in which the person engages would be manifestly unreasonable. 10 There is a non-exhaustive definition of an "abuse of the process for an access action". It includes harassing or intimidating an individual or an employee of an agency, unreasonably interfering with the operations of an agency and seeking to use the Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court (s 89L(4) of the FOI Act). Background Facts 11 On 7 January 2014, the applicant made an application under s 48 of the FOI Act for the amendment of an AF Med 1 Form dated 14 July 1972. He claimed that the examining medical officer who conducted the medical examination of the applicant, a Dr Clarke, acted improperly in not assessing the applicant's mental capacity and his emotional stability. On 13 January 2014, the Department of Defence applied to the Information Commissioner for a declaration under s 89K of the FOI Act that the applicant was a vexatious applicant. The Department's application referred to previous decisions of the Tribunal and asserted that the applicant was trying "to request and re-argue the same issues". The Department suggests that the applicant's conduct could be viewed as an abuse of process because it unreasonably interfered with the operations of the agency. The Department points out that the underlying issue is not one that can be reviewed under the amendment regime. The Department describes that issue as the applicant challenging the perceived failure in the examination process itself, rather than the factual correctness of the document themselves. The Department states that elements of the applicant's behaviour are indicative of an intention to harass or annoy the Department. Finally, the Department asks for a declaration under s 89L(1)(a) of the FOI Act, that is to say, repeated engagement in access actions amounting to an abuse of process. 12 On 11 July 2014, the Information Commissioner made a declaration under s 89K(1) of the FOI Act that the applicant was a vexatious applicant. The Information Commissioner made the declaration on the basis that a particular access action, being the applicant's application under s 48 of the FOI Act dated 7 January 2014, involved an abuse of process for that access action (s 89L(1)(b) of the FOI Act). The Information Commissioner considered that to be "the more appropriate ground". He noted the Department's reliance on the limb of the definition of "abuse of process for an access action" referring to an unreasonable interference with the operations of the Department. 13 The applicant applied to the Tribunal for a review of the Information Commissioner's decision. As I understand it, the latter took no part in the hearing before the Tribunal. The Department did play a part and, among other arguments, continued to maintain that the applicant's conduct was an unreasonable interference with the Department's operations. They adduced evidence on that topic from a Mr Anthony Corcoran. The Tribunal's Reasons 14 The Tribunal noted that the applicant served in the Navy. It set out details of his service history as follows: 10. Mr Francis, who was born in 1948, joined the Navy in 1965. He gave evidence that he saw active service in Vietnam, and that in 1968, he was injured and fractured his vertebrae. He gave evidence of American surgeons having diagnosed a fracture of the L4 and L5 vertebrae, but maintained that while he was in Sydney, a fracture of the L1 vertebra only was found due to the inadequacy of the X-ray procedures. His evidence was that after this incident he served on the HMAS Melbourne, and he drew my attention to the citation he received in 1969 for, as he put it, "help rendered" when the Melbourne hit an American ship and a number of crew died. 11. Unfortunately, Mr Francis's service history also involved incarceration for assault, and he acknowledged he generally had at the time "problems with authority" as he put it. He gave evidence of reacting very badly to pressure and said he was sent off for psychiatric evaluation in 1969. He eventually finished up his duties on the Melbourne and was transferred to the Navy's training establishment at Quaker Hill, in Sydney. At what must have been a very difficult time for him, his wife lost their first child in a miscarriage. 12. He gave evidence that he made application [sic] for submarine duties and underwent a "submarine medical", which was conducted in March 1972. The medical evaluation form that resulted from that examination is one of the medical records that Mr Francis has sought in the past to have amended. I shall refer to this document as the "March 1972 medical record". A Dr Clarke conducted the examination and wrote in question box 62 "Category Recommended" the letter "A". Mr Francis gave evidence that this meant that he was fit to serve anywhere, and that interpretation is accepted by the Department. 13. The categories on the form concerning his emotional stability and mental capacity were marked "NE" or "not examined". His visual fields were also marked "NE". The only abnormalities noted were in respect of Category 50, which concerned identifying marks, scars and the like. Mr Francis gave evidence that he had been assigned to submarine duties when all of a sudden he was rejected for service and was sent to see a psychologist. 14. Mr Francis subsequently applied for a discharge on compassionate grounds in June 1972. He gave evidence that he underwent a further examination in July 1972 by Dr Clarke, and the completion of this medical record is the subject of the application by Mr Francis in January 2014. Once again, the categories of visual field, emotional stability, and mental capacity were marked "NE" or not examined. I shall refer to this record as the "July 1972 medical record". 15. In the event, Mr Francis's application for a discharge was successful; but he says that as a result of his medical examination in July 1972, he received what is called a "free discharge", effectively meaning that he was discharged without any serious medical issue having been found. Mr Francis's complains that the "free discharge" was the direct result of an improper examination. Mr Francis contends that Dr Clarke knew of, or ought to have known of or suspected, his unsatisfactory mental and emotional states. He complains that Dr Clarke ought to have filled out the July 1972 medical form to indicate that his mental and emotional states were abnormal, or in any event proceeded to an examination. 16. Mr Francis wants the July 1972 medical record altered to show what he maintains is the truth; namely, that he was unfit for Navy service as a result of abnormal mental and emotional states. He refers in this regard to a subsequent diagnosis of Posttraumatic Stress Disorder. He further maintains that if he had been "medically discharged", he would have received compensation in respect of his illnesses from a benefit fund set up for these purposes. As I understand his argument, he maintains that at a practical level, he is not able to secure those benefits today while the record remains in its present state. 15 The Tribunal noted that the applicant accepted that on a number of occasions he had pursued actions under the FOI Act to have AF Med 1 Form dated 17 March 1972, ("March 1972 medical record") and AF Med 1 Form dated 14 July 1972 ("July 1972 medical record") amended. 16 The Tribunal summarised those actions in the following way. 2004 Tribunal Decision Re Francis and Department of Defence [2004] AATA 33 (Senior Member Purcell) 17 The applicant applied to the Department to have the July 1972 medical record amended. His application was refused by the Department and he applied to have the decision reviewed. 18 The Tribunal affirmed the decision and an appeal to this Court was dismissed (Francis v Department of Defence [2005] FCA 100). 19 The Tribunal referred to the then s 55(6) of the FOI Act which provided that a document expressing an opinion could only be amended by the Tribunal if the opinion was based on a mistake of fact or the author of the opinion was biased, unqualified to form an opinion or had acted improperly in conducting factual inquiries that led to the formation of the opinion (see s 58AA of FOI Act as it now is). 20 The Tribunal found that the July 1972 medical record contained an expression of opinion. It found that the opinion with respect to the applicant's medical condition was not based on any error of fact and it also found that there was no mistake of procedure by Dr Clarke. The Tribunal noted that there was no assertion that Dr Clarke was biased nor an assertion of impropriety. In any event, there was no evidence led in support of these matters. 2008 Tribunal Decision Re Francis and Department of Defence [2009] AATA 549 (Senior Member Dunne) 21 The Tribunal considered a further application in relation to the July 1972 medical record, the March 1972 medical record and an "AM 146z" medical form. The latter is a form which the applicant was required to complete at the time of his discharge. The applicant disputes that he filled out this last form. 22 The applicant sought an amendment of the July 1972 medical record because he claimed it was misleading, but the Department refused to amend the record. With respect to this record, the Tribunal followed the approach in the previous decision and decided that no amendment was required. 23 With respect to the March 1972 medical record, an annotation was made in relation to Box 60, but the decision not to amend it was affirmed. 24 With respect to AM 146z, an annotation on this form was ordered. 2010 Tribunal Decision Re Francis and Department of Defence [2010] AATA 780 (Deputy President Jarvis) 25 The Tribunal considered a further application to amend the March 1972 medical record, the July 1972 medical record and the AM 146z form after a refusal by the Department. 26 The Tribunal dismissed the Department's application to dismiss the application as frivolous or vexatious under s 42B of the AAT Act. The Tribunal put forward a series of annotations in an attempt to resolve the dispute and these annotations were agreed to by the applicant. However, there was no order for the amendment of the records. 2012 Tribunal Decision Re Francis and Department of Defence [2012] AATA 838 (Deputy President Jarvis) 27 The Tribunal considered a further application to amend the March 1972 medical record and the July 1972 medical record. 28 The applicant claimed that the July 1972 medical record was incomplete, incorrect, misleading and out of date in respect of his mental and emotional states. He claimed that Dr Clarke filled the form out incorrectly because he did not mark the relevant boxes, "abnormal". The Tribunal rejected this submission. 29 The Tribunal did make an order for the amendment of Box 62 in the March 1972 medical record. It found that the form was misleading or incomplete and made an order for an amendment to the effect that the applicant was not fit for submarine service. It found that Dr Clarke ought to have had regard to the applicant's physical illnesses and psychiatric conditions before finding that he was fit for submarine service. 30 The Tribunal did not consider that its conclusion in relation to the March 1972 medical record affected its conclusion in relation to the July 1972 medical record. Dr Clarke had not acted improperly or in breach of duty in relation to the latter record. 31 Having referred to these previous decisions, the Tribunal turned to consider the concept of an abuse of process. The Tribunal noted that an abuse of the process for an access action was defined in a non-exhaustive way in s 89L(4) of the FOI Act. It referred to the fact that the concept of an abuse of process was a familiar concept in the context of legal proceedings, and the concept covered attempts to re-litigate issues even though the doctrine of issue estoppel did not apply. The Tribunal referred to Walton v Gardiner (1993) 177 CLR 378 and Rogers v The Queen (1994) 181 CLR 251. 32 The Tribunal held that the applicant's application under s 48 of the FOI Act satisfied the statutory criteria of a particular access action in which a person engages involving an abuse of the process for that access action (s 89L(1)(b) of the FOI Act), having regard to his four earlier applications and the earlier Tribunal decisions and the decision of the Federal Court. The Tribunal also said that the applicant's application under s 48 of the FOI Act satisfied the statutory criteria of a particular access action in which a person engages would be manifestly unreasonable (s 89L(1)(c) of the FOI Act). The Tribunal noted that the applicant had applied five times to the Department and, in addition, had appealed adverse prior departmental decisions to the Tribunal on four occasions, with one appeal to the Federal Court. In the course of deciding the applicant's applications, the Tribunal has, in relation to the July 1972 medical record, found that Dr Clarke's opinion was not based on an error of fact, that Dr Clarke was not biased or unqualified to form the opinion he formed, and that he did not act improperly in conducting the factual inquiries that led to the formation of his opinion. Furthermore, the applicant sought to argue that Dr Clarke acted "improperly" in not assessing his mental capacity or emotional stability. That involved a direct challenge to earlier conclusions of the Tribunal. 33 The Tribunal expressed its conclusions as follows: 47. In my opinion, Mr Francis's latest application requires the Department to ignore findings of fact the Tribunal has made in various applications, and it directly challenges a distinction Deputy President Jarvis found was appropriate to draw. Mr Francis's application to the Department attempts, therefore, to circumvent earlier decisions that are contrary to his contentions. The Department would act inappropriately, in my opinion, if it acceded to Mr Francis's application given these earlier findings. 34 The Tribunal said that it was unlikely new information would come to light, but if it did, it would not be inappropriate for the applicant to put forward a further application. The Issues on the Application for Summary Judgment 35 It is convenient to proceed by reference to the Department's seven categories, bearing in mind though that it is the nature and character of the particular question which is important. 36 Category 1 is described as a complaint that the Tribunal erred in affirming the Information Commissioner's decision in circumstances where his application dated 7 January 2014 had merit. The relevant paragraphs in the December 2015 document are paragraphs 2, 3, 10, 10 (there are two paragraphs numbered 10), 11, 12, 20 and 21. 37 These questions are difficult to understand. Most of them appeared to raise matters going to the merits. The Tribunal found that the application was not accompanied by any new factual material (at [41]) or any new relevant information (at [49]) and that the Department would act inappropriately if it acceded to the applicant's application given findings of fact the Tribunal has made in various applications and the distinction drawn by the Tribunal in Re Francis and Department of Defence [2012] AATA 838 (at [47]). In other words, the Tribunal found that the applicant's application under s 48 of the FOI Act did not have merit. As to the applicant's reference to s 55(6)(c) of the FOI Act, that section was repealed prior to the hearing before the Tribunal. The equivalent section in the amended FOI Act is s 58AA. There does not appear to be any error in the Tribunal's approach to these sections. Nor is it right to say that the Tribunal failed to acknowledge the "right" to revisit those applications. That was the very issue the Tribunal addressed and decided adversely to the applicant. One matter the applicant raised was that the Department said he asked for something to be done that could not be done. If that was correct there were (the applicant submitted) no prior access actions. This contention seems to confuse two issues, being the formal requirements of the FOI Act and the merits. The fact that the Department considered his previous applications to be misguided does not mean that they were not access actions under the FOI Act. They were such applications. 38 Category 2 is described as a complaint about the Information Commissioner's decision and the opportunity to cross-examine. The grounds are paragraphs 4, 9, 17, 18 and 19 in the December 2015 document, and paragraphs 7, 8, 11 and 12(a) in the February 2016 document. 39 Many of these questions relate to the merits, either of the Tribunal's decision or the decision of previous Tribunals, and do not raise questions of law. 40 The applicant contends that the Information Commissioner was not entitled to go beyond the Department's application which was based on s 89L(1)(a) of the FOI Act and the fact that he did so indicates bias or perceived bias. The Information Commissioner made his decision on the basis of s 89L(1)(b). I do not think he exceeded his jurisdiction in doing so. The critical matter is that he was dealing with an application under s 89K of the FOI Act. If it was justified on the material, he was entitled to rely on any of the limbs in s 89L(1) of the FOI Act. There is no evidence of bias. I should add that I have addressed these issues for convenience only. They would not seem to be questions of law from the decision of the Tribunal. 41 A related point raised by the applicant should also be rejected. The applicant seemed to contend that the whole process miscarried because the Department did not state the grounds in its application to the Information Commissioner. I am not convinced that any requirement to state grounds means one of the limbs of s 89L(1) of the FOI Act, but even if it does, the Department did do that (see [11] above). 42 The applicant contends that in some way the Tribunal was bound to make the Information Commissioner available for cross-examination. That submission is incorrect. The Tribunal was not bound to issue a summons (s 40A of the AAT Act) and procedural fairness in the circumstances required no more than what occurred which was that the Department employee (Mr Corcoran) who made a statement to the Tribunal was made available for cross-examination. 43 Category 3 is described as a complaint about the Tribunal's decision (and in respect of its decisions in 2004 and 2009) in light of the decision of Justice Selway in 2004. The grounds are paragraphs 6, 7, 8, 13 and 14 in the December 2015 document, and paragraphs 6, 9 and 12 in the February 2016 document. 44 In Re Francis and Department of Defence [2004] AATA 33, the Tribunal considered whether there were grounds to amend the July 1972 medical record. At the time of the application for review, s 55 of the FOI Act read as follows, relevantly: (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: (a) a decision refusing to grant access to a document in accordance with a request; or (aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or … (g) decision refusing to amend a record of personal information in accordance with an application made under section 48; or (h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48. … (5) The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document. (5A) The Tribunal's power to make a decision on a review of a decision of a kind mentioned in paragraph (1) (ab) includes a power to require the agency or Minister concerned to conduct further searches for the document. (6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1) (g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or (b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or (c) the amendment relates to a record of an opinion to which neither of the following applies; (i) the opinion was based on a mistake of fact; (ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion." 45 The Senior Member of the Tribunal followed a previous decision of the Tribunal which was to the effect that an AF Med 1 Form was a record of opinion for the purposes of s 55(6) of the FOI Act. That conclusion had the consequence that the Tribunal was not to make a decision requiring an amendment if it was satisfied that the amendment relates to a record of an opinion which was not based on a mistake of fact and where the author of the opinion was not biased, unqualified to form the opinion or acting improperly in conducting the factual inquiries that led to the formation of the opinion. As I have said previously, the Senior Member was satisfied that Dr Clarke's opinion was not based on a mistake of fact. She found that Dr Clarke was not biased or unqualified to form the opinion he expressed and nor did he act improperly in conducting the factual inquiries that led to the formation of the opinion. In those circumstances, the application to amend was dismissed. 46 An appeal to this Court was dismissed. I note that the applicant disputes that it was an appeal, but Selway J said that the applicant had "appealed" from the Tribunal's decision. Selway J said that the Tribunal had not erred. He said (at [14]): The end result is that the Tribunal was satisfied that the case fell within s 55 (6) of the FOI Act. That being so, the relevant jurisdictional fact denying the Tribunal's jurisdiction had been established. It follows that no error of law can be shown or sustained. 47 The applicant contends that the conclusion of Selway J that the Tribunal's satisfaction that the case fell within s 55(6) of the FOI Act led to the conclusion that the relevant jurisdictional fact denying the Tribunal's jurisdiction had been established meant that the decision of the Tribunal was null and void. This contention must be rejected. The Tribunal had jurisdiction as to whether the matter fell within the terms of s 55(6) of the FOI Act. It decided that it did and, therefore, it did not have the power to amend the record. The applicant also contends that Dr Clarke erred in concluding that his condition was in various respects normal and that it erred in concluding that a statement of what was normal or abnormal was a matter of opinion. This contention must also be rejected. The question for this Court is whether the Tribunal from which this appeal is brought committed an error of law. I do not think it did because I do not think it was open to the Tribunal to go behind the previous decision of the Tribunal or, indeed, permissible for it to do so. It was not conducting a second review of a decision of the Department made in 2000. 48 In Re Francis and Department of Defence [2009] AATA 549, the Tribunal adopted the Tribunal's reasoning and approach in relation to Dr Clarke's completion of the applicant's AF Med 1 Form. The conclusions in the paragraph above also dispose of the challenges the applicant made to the Tribunal's decision in Re Francis and Department of Defence [2009] AATA 549. 49 The applicant also complains about the Tribunal's observation (at [54]) that he had no insight into the unreasonableness of his multiple applications to the Department and to the Tribunal. I think that that was an observation the Tribunal member was entitled to make, having regard to his other conclusions. 50 Finally, the applicant seeks to gain some assistance from a concluding observation made by Selway J in his reasons for judgment. It is as follows (at [15]): I point out however that there is nothing in this analysis nor in any of the material that has been put before me which would seem to me to establish as at today's date that the applicant was not suffering from spinal injuries or from post-traumatic stress syndrome as at the date he left the Navy. That does not seem to be an issue that has been dealt with by either the Tribunal or by anyone else. It is unnecessary for me to express any opinion on it except to say that the issue has not been established. For these reasons the application is dismissed. 51 This observation does not assist the applicant. It was not an issue the Tribunal was required to consider and there can be no error of law in it not doing so. 52 Category 4 is described as a complaint that past Tribunal matters are not access actions for the purposes of the FOI Act. The grounds are paragraph 1 in the December 2015 document, and paragraphs 10, 14 and 18 in the February 2016 document. 53 The applicant contends that the Tribunal did not address the fact that for the purposes of the decision made by the Information Commissioner, previous Tribunal decisions do not constitute access actions. There are a number of answers to this submission. The tribunal conducts a de novo hearing and it is to make the correct and preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 ("Drake v Minister for Immigration and Ethnic Affairs") at 418 per Bowen CJ and Deane J). In this case, the Tribunal's decision turned on the applicant's application dated 7 January 2014. It was entitled to have regard to previous applications. It would be aware of the fact that the previous Tribunal decisions were in relation to applications for review of decisions made on access applications. 54 The applicant contends that the Tribunal erred in its interpretation of s 89L(1)(a) of the FOI Act. That contention must fail because the Tribunal did not decide the case by reference to the paragraph. The Tribunal decided the case by reference to s 89L(1)(b) and (c) of the FOI Act. 55 The applicant contends that the Tribunal did not take into account the fact that the repeated application resulted from the failure of the Department in part by not affording him full and frank discovery. This is a very vague allegation. As I understand it, the Department denies the allegation. In any event, it seems the allegation was made to the Tribunal. It is not incumbent on the Tribunal to mention every matter raised before it in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 [46]-[47]. 56 Category 5 is described as a complaint that the Tribunal left a number of questions of law unanswered. The grounds are paragraphs 5, 15 and 16 in the December 2015 document, and paragraphs 1, 2, 3, 4, 5 and 17 in the February 2016 document. It is convenient to deal with these grounds one by one. 57 Paragraph 5 of the December 2015 document complains that the Tribunal did not address all issues raised by the applicant in his statement to the Tribunal. This ground must fail. The Tribunal is entitled to decide what matters are relevant and what matters are not. If it is wrong, then its decision may be set aside. As I have stated above, it is not incumbent on the Tribunal to mention every matter raised before it in its reasons. 58 Paragraph 15 of the December 2015 document seems to involve a challenge to the Tribunal's finding that there was no new evidence. In fact, the Tribunal found that there was no new relevant information, a conclusion which was plainly open to it ([49]). 59 Paragraph 16 of the December 2015 document seems to involve a contention that a question of law found by the Tribunal should have been submitted to the Federal Court for determination. I am not sure what is meant by this ground, but if it is suggested that the Tribunal was obliged to refer a question of law to this Court, then the suggestion must be rejected. 60 Paragraph 1 of the February 2016 document assumes the merits are with the applicant when the finding is to the contrary. Alternatively, it is a complaint about the merits which does not involve a question of law. 61 Paragraphs 2 and 3 of the February 2016 document do not identify the alleged error of law and could not constitute arguable questions of law or errors of law. 62 Paragraph 4 of the February 2016 document raises a question as to whether the Tribunal was duty bound to consider only the evidence before the decision-maker which led to the vexatious declaration. The law is well-established that that is not the case and the Tribunal must make its decision on the basis of the material before it: Drake v Minister for Immigration and Ethnic Affairs at 418 per Bowen CJ and Deane J. 63 Paragraph 5 of the February 2016 document seems to suggest that because the Tribunal considered the history of the applicant's access action, it should have also considered "all of the relevant evidence submitted and reflect same in the Tribunal's decision". This ground must fail. As I have said, the Tribunal is entitled to decide what matters are relevant and what are not and to address only the former. If it is wrong, then its decision may be set aside. It does not err simply by making a decision about relevance. 64 Paragraph 17 of the February 2016 document suggests the Tribunal should have overturned the Information Commissioner's decision for breaches of the FOI Act. This is too vague to constitute an arguable question of law. 65 Category 6 is described as the applicant's issues with respect to the oral evidence of Mr Corcoran, an employee of the Department, on cross-examination. The grounds are paragraphs 13 (incorrect numbering), 12, 13, 15 and 16 in the February 2016 document. 66 Mr Corcoran is the Assistant Secretary Information and Access within the Department. He swore an affidavit which was put before the Tribunal. That affidavit was directed towards the Department's contention that the applicant's conduct was an unreasonable interference with the Department's operations. The applicant's grounds contain a number of criticisms of Mr Corcoran's evidence. The applicant submitted that Mr Corcoran could not answer questions he should have been able to answer, his evidence was inconsistent, he was not the author of the vexatious application, his evidence was misleading, he did not adhere to the legal requirements of the FOI Act and that he was directed by the Tribunal not to answer questions which were outside his qualifications. The Department does not accept these criticisms, but in any event submits that the short answers to these contentions is that the Tribunal did not rely on Mr Corcoran's evidence. That submission is correct. 67 Category 7 is described as the applicant's allegations of breaches of the Model Litigant provisions against the Department. This ground is paragraph 13(c) in the February 2016 document. The allegation is that the Tribunal was "misled" as to "abiding by the Model Litigant". This general and unparticularised allegation does not raise a question of law. 68 In other documents the applicant put before the Court, the applicant challenged various findings and conclusions of the Tribunal. I have already dealt with some of those matters and as to the others, they clearly do not raise questions of law. Conclusion 69 The applicant has no reasonable prospect of successfully prosecuting the appeal, and summary judgment dismissing the appeal will be ordered. In the circumstances, it is not necessary for me to consider the Department's application for security for costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 2 June 2016