FEDERAL COURT OF AUSTRALIA SZVCP v Ng [2017] FCA 455 File numbers: NSD 2206 of 2016 NSD 2207 of 2016 Judge: FLICK J Date of judgment: 4 May 2017 Catchwords: MIGRATION – judicial review sought of decision of Federal Circuit Court dismissing an application for review – no extension of time PRACTICE AND PROCEDURE – review of decision of Registrar refusing to accept for filing an application seeking review of decision of Federal Circuit Court Judge PRACTICE AND PROCEDURE – unfounded criticism made of Federal Circuit Court Judge – fair criticism for the public good – criticism not responsibly made Legislation: Constitution (Cth) Ch III Judiciary Act 1903 (Cth) ss 39B, 78B Migration Act 1958 (Cth) ss 476A, 477 Cases cited: BBD15 v Minister for Immigration & Anor (No 2) [2016] FCCA 3077 BBD15 v Minister for Immigration & Anor (No 3) [2016] FCCA 3334 Clement v Australian Bureau of Statistics [2016] FCA 948 Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918, (2004) 56 ATR 371 Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 Glennan v Commissioner of Taxation [2003] HCA 31, (2003) 198 ALR 250 Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 SZVCP v Minister for Immigration & Anor [2016] FCCA 950 SZVCP v Minister for Immigration & Anor (No 2) [2016] FCCA 3155 SZVCP v Minister for Immigration & Anor (No 3) [2016] FCCA 3333 SZVCP v Minister for Immigration & Ors (No 3) [2016] FCCA 3328 The King v Fletcher; Ex parte Kisch (1935) 52 CLR 248 The King v Nicholls (1911) 12 CLR 280 Date of hearing: 27 April 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 In NSD 2206 of 2016: Counsel for the Applicant: The Applicant appeared by telephone Counsel for the Respondent: The Respondent did not appear In NSD 2207 of 2016: Counsel for the Applicant: The Applicant appeared by telephone Counsel for the First Respondent: The First Respondent filed a submitting notice Counsel for the Second and Third Respondents: Ms L Buchanan of Australian Government Solicitor ORDERS NSD 2206 of 2016 BETWEEN: SZVCP Applicant AND: C NG (DEPUTY DISTRICT REGISTRAR) Respondent NSD 2207 of 2016 BETWEEN: SZVCP Applicant AND: HON JUDGE STREET (OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA) First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent MINISTER FOR IMMIGRATION AND BORDER PROTECTION Third Respondent JUDGE: FLICK J DATE OF ORDER: 4 May 2017 THE COURT ORDERS THAT: 1. The claim for interlocutory relief in proceeding No NSD 2207 of 2016 is refused. 2. The Originating Application for Judicial Review filed on 23 December 2016 in proceeding No NSD 2206 of 2016 is dismissed. 3. The Originating Application for Relief under Section 39B Judiciary Act 1903 filed on 23 December 2016 in proceeding No NSD 2207 of 2016 is dismissed. 4. The Applicant is to pay the costs of the Second and Third Respondents, being the Commonwealth and the Minister for Immigration and Border Protection, in proceeding No NSD 2207 of 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 The present Applicant, SZVCP, first arrived in Australia in February 1994. In December 1995 he applied for a protection visa. But that application was refused in November 1996. He was subsequently convicted of a number of offences, including three counts of having sexual intercourse with his 11 year old daughter. He was sentenced to a term of imprisonment. Upon completion of that imprisonment, his visa was cancelled and he became an unlawful non-citizen. 2 On 29 October 2014, SZVCP commenced proceedings in the Federal Circuit Court of Australia. He sought declaratory and other relief, including an order that he not be transferred to Christmas Island. 3 During the course of 2016 a Judge of the Federal Circuit Court of Australia delivered a series of judgments in respect to the present Applicant. Those judgments in chronological sequence were as follows: a decision published on 26 April 2016 dismissing an application for disqualification (SYG 3004 of 2014; PEG 261 of 2015; PEG 142 of 2015): SZVCP v Minister for Immigration & Anor [2016] FCCA 950; a decision published on 29 November 2016 setting aside subpoenas (PEG 261 of 2015): BBD15 v Minister for Immigration & Anor (No 2) [2016] FCCA 3077; a decision published on 6 December 2016 setting aside subpoenas that had been served (SYG 3004 of 2014): SZVCP v Minister for Immigration & Anor (No 2) [2016] FCCA 3155; a decision published on 20 December 2016 dismissing an application seeking an extension of time (SYG 3004 of 2014): SZVCP v Minister for Immigration & Ors (No 3) [2016] FCCA 3328; a decision published on 20 December 2016 dismissing an application seeking to set aside a decision not to grant a protection visa (PEG 142 of 2015): SZVCP v Minister for Immigration & Anor (No 3) [2016] FCCA 3333; and a decision published on 20 December 2016 dismissing an application alleging error arising from data breaches (PEG 261 of 2015): BBD15 v Minister for Immigration & Anor (No 3) [2016] FCCA 3334. 4 Now before this Court are two separate proceedings, namely: an application filed on 23 December 2016 (NSD 2206 of 2016) seeking to review a decision made by a Deputy District Registrar of this Court on 21 December 2016 refusing to accept for filing an application to appeal from the decision made by the Federal Circuit Court Judge on 20 December 2016 in SYG 3004 of 2014; and an application filed on 23 December 2016 (NSD 2207 of 2016) seeking relief under s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"), seeking (inter alia) declaratory relief that the Federal Circuit Court Judge "as an officer of the Commonwealth has not acted in accordance with the obligations and principles of Chapter III of the Constitution of Australia" on grounds including an allegation that he was "in conflict and had conflict of interests". A Statement of Claim was also filed in this proceeding on the same day. The Deputy District Registrar has taken no part in the former proceeding; the Federal Circuit Court Judge who was named as the First Respondent in the latter proceeding has filed a Submitting Notice. 5 At a directions hearing on 14 February 2017, the Applicant indicated that he wished to pursue both of these proceedings notwithstanding the fact that he was to be voluntarily removed from Australia and that he was scheduled to leave on 15 February 2017. The Applicant has in fact left Australia and is presently in Nigeria. 6 The two proceedings came before this Court for directions on 14 February, 21 March and 18 April 2017 and for hearing on 27 April 2017. 7 At the hearing on 27 April 2017, the Applicant appeared by way of telephone. By that means the Applicant advanced the submissions that he sought to have considered by this Court. The telephone hearing, however, ceased when the call disconnected. The connection could not be re-established. But by that time the Applicant had nevertheless advanced the substance of the submissions he sought to have considered and was understood to have completed his submissions. The Applicant had also had the benefit of advancing submissions in considerable detail during the course of the directions hearing on 14 February 2017. 8 The Second and Third Respondents in proceeding No NSD 2207 of 2016 appeared by way of a solicitor. These Respondents together filed an Outline of Submissions in that proceeding on 20 April 2017. The decision of the Deputy District Registrar 9 Before the Deputy District Registrar was a Notice of Appeal from the decision of the Federal Circuit Court Judge published on 20 December 2016 which dismissed the application for an extension of time: SZVCP v Minister for Immigration & Ors (No 3) [2016] FCCA 3328. The second and third of the Orders made by that Judge expressly provided that "[t]he application for an extension of time under s.477 of the [Migration Act 1958 (Cth)]" in respect to the "alleged decision dated 12 March 2014" and the "decision dated 20 October 2016" be dismissed. The fourth Order dissolved an injunction restraining the return of the Applicant to Christmas Island. 10 The Deputy District Registrar on 21 December 2016 wrote to the Applicant. That letter specifically brought to the attention of the Applicant the terms of s 476A(3)(a) of the Migration Act 1958 (Cth) which provide as follows: Limited jurisdiction of the Federal Court … Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or … Section 477(1) and (2) provide as follows: Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 11 The decision of the Federal Circuit Court Judge refusing an extension of time fell within s 476A(3)(a) and the decision of the Deputy District Registrar was, accordingly, correct. 12 There was no denial of procedural fairness on the part of the Deputy District Registrar. He advised the Applicant of the difficulty presented by s 476A(3)(a). It was open to the Applicant thereafter to make any submissions that he saw fit. Nor was the decision of the Deputy District Registrar "unreasonable". Even if it were possible to separate out the fourth Order dissolving the injunction from the Orders refusing an extension of time, a course which is truly questionable, there is no basis to question the correctness of the decision of the Federal Circuit Court Judge to dissolve the injunction. Nor was any submission advanced before this Court seeking to impugn the decision of the Deputy District Registrar on this basis. 13 The application seeking to review that decision is thus dismissed. The section 39B Application 14 The Originating Application for Relief under Section 39B Judiciary Act 1903 as filed in this Court on 23 December 2016 expresses the claims made as follows (without alteration): Details of claim On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903: 1. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the honourable judge Street of the Federal Circuit of Australia as an officer of the Commonwealth has not acted in accordance with the obligations and principles of Chapter III of the Constitution of Australia on the grounds and basis that: 2. The honourable judge Street of the Federal Circuit of Australia as an officer of the Commonwealth was in conflict and had conflict of interests and is incompetent in breach and a contravention of chapter 3 of the Constitution of Australia as a judicial officer of the Commonwealth and should never had heard and determined any of my matters before the Federal Circuit Court of Australia. 3. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the Commonwealth is responsible and vicariously responsible for the failures and incompetent actions of the honourable judge Street of the Federal Circuit of Australia as an officer of the Commonwealth has not acted in accordance with the obligations and principles of Chapter III of the Constitution of Australia. 4. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), as a consequence of the failures and incompetent actions of the honourable judge Street of the Federal Circuit of Australia as a judicial officer of the Commonwealth, I have suffered damage and the Commonwealth is responsible and vicariously responsible. The Application also sets forth interlocutory relief sought as follows (again without alteration): Claim for interlocutory relief The Applicant also claims interlocutory relief. 1. The judgements and all orders of the honourable judge Street of the Federal Circuit of Australia as a judicial officer of the Commonwealth given on 20 December 2016, in the proceeding number SYG 3004/2014; PEG 142/2015 and PEG 261/2015 be set aside until the determination and finalisation of this proceedings. 2. Leave granted to file amended application with any affidavits and other materials The Statement of Claim repeated the same claim for interlocutory relief. 15 At least one difficulty which emerges from this Originating Application is that it fails to identify the decision of the Federal Circuit Court Judge which is the subject of review. Perhaps some assistance may potentially be gleaned from the terms in which the claim for interlocutory relief is expressed – namely the identity of the three proceedings there listed. But the last two of those proceedings are the subject of separate Notices of Appeal which are presently listed for hearing before another Judge of this Court on 8 May 2017. 16 Given these difficulties, the course which has been pursued is that the present Originating Application and Statement of Claim have been construed as a challenge confined to proceeding SYG 3004 of 2014, namely the decision of the Federal Circuit Court Judge dismissing the application for an extension of time. Any merit in the Applicant's argument, however, could potentially provide a basis upon which all the decisions of that Judge could be impugned. It nevertheless matters not which was the precise decision under challenge. The present argument is without merit. A claim arising under the Constitution – s 78B 17 A question arose at the very outset of the proceeding in this Court as to whether the Court could proceed to hear the matter in advance of a notice being served in accordance with s 78B of the Judiciary Act. Section 78B(1) provides as follows: Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. 18 When the proceeding first came before the Court on 14 February 2017, reservation was expressed as to whether the proceeding gave rise to any "matter arising under the Constitution" for the purposes of s 78B. An argument as to whether a Judge should be disqualified by reason of a reasonable apprehension of bias, or even an allegation as to actual bias, it is respectfully considered would not give rise to any such "matter". But a submission, as was made by the Applicant, that the Federal Circuit Court Judge was "incompetent" – if supported by factual evidence to justify such a finding being made – could (arguably) give rise to such a "matter". 19 The duty of the Court "not to proceed" nevertheless remains a duty of "imperfect obligation": Glennan v Commissioner of Taxation [2003] HCA 31 at [13], (2003) 198 ALR 250 at 253 per Gummow, Hayne and Callinan JJ. And the duty does not arise where the matter sought to be raised is frivolous or vexatious: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918, (2004) 56 ATR 371. French J (as his Honour then was) there concluded (at 396): [103] … That section does not impose a duty on the court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned in a pleading no matter how trivial, unarguable or concluded the constitutional point may be … See also: Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 at [12] per French, Lindgren and Jacobson JJ; Clement v Australian Bureau of Statistics [2016] FCA 948 at [31] per Katzmann J. 20 Notwithstanding reservation as to whether the proceeding did give rise to a "matter arising under the Constitution", an order was made on 14 February 2017 requiring the Applicant to serve notices in accordance with s 78B. The making of such an order was both consistent with readying the proceeding for hearing and the prospect that an attorney served in accordance with s 78B may take a different view to the reservation expressed on 14 February 2017. 21 Notices were served and no attorney has sought to intervene. The challenge made to the Federal Circuit Court Judge 22 As is apparent from the terms in which the Originating Application is drafted, the focus of attack made by the Applicant in this Court is a challenge to the ability of the Federal Circuit Court Judge to hear and determine the application as filed in the Federal Circuit Court. 23 An application seeking the Federal Circuit Court Judge to disqualify himself had previously been made to that Judge and dismissed in April 2016: SZVCP v Minister for Immigration & Anor [2016] FCCA 950. 24 The basis upon which the Applicant sought to now expand upon his present challenge to the Circuit Court Judge was expressed as at 14 February 2017 at the outset of his submissions on that day as: an allegation as to "incompetence". The argument was further articulated as being an allegation that the Federal Circuit Court Judge: wrongfully refused an application for pro bono assistance; wrongfully impeded access to counsel, by "scaring" barristers off "behind the scenes"; and wrongfully, throughout the hearing, leading witnesses and barristers into providing the answers he wanted. Needless to say, these allegations were of the most serious kind. If substantiated, they went to the very heart of the administration of justice and if substantiated would prejudice the public confidence in the impartial administration of justice in this country. These were the same arguments advanced at the hearing on 27 April 2017. 25 The seriousness of the allegations was the very reason why every reasonable opportunity has been extended to the Applicant to enable him to properly pursue his claims. 26 Any challenge to the actions of the Judge during the course of the proceedings below could potentially have emerged from an examination of the transcript of those proceedings, as could a challenge to any decision refusing to appoint pro bono counsel. The allegation as to the Judge's involvement "behind the scenes" was understood – according to the Applicant – to emerge from his correspondence with the New South Wales Bar Association. 27 To accommodate an assertion made by the Applicant that he did not have ready access to "materials" to support his claims, orders were made requiring the Respondent Minister to provide to the Applicant a copy of all the relevant pleadings in the Federal Circuit Court, all evidence filed in those proceedings and a copy of available transcripts. Both an email copy of the transcript of the hearing before the Federal Circuit Court Judge on 19 December 2016 (but not the transcript for the following day) and a hard copy of that transcript had been provided to the Applicant by no later than 7 April 2017. 28 No reference, however, was made by the Applicant to any part of the transcript which had been provided to him. Nor was any other evidence filed. An email exchange between the Applicant and the New South Wales Bar Association was nevertheless forwarded to the Court on 6 March 2017. 29 This email exchange started with an email from the Applicant to Ms Sare, the Manager of Legal Assistance of the New South Wales Bar Association, sent on 26 November 2016. That email stated as follows (without alteration): Dear Ms. Sare Just want to say hi and to inquire about what is the progress of seeking representations for me please. I am just too stressed right now and my language or co ordination might not be the best right now, so please forgive me if any wrong is done. It is not intentional. I await your response. The matters are scheduled for 19 and 20 December 2016. Ms Sare responded on 28 November 2016 stating as follows: Thank you for your email. Yes, I am aware of the dates of the hearing. After we referred the issue of whether His Honour Judge Street had a conflict to a barrister we referred your matter to another barrister who agreed to look at the substantive matter but returned the paperwork (in perfect re-arranged chronological order) in order that we attempt to find yet another barrister. To date, we have been unsuccessful. However, I am willing to continue the search but unfortunately I cannot guarantee that I will be successful. Nothing untoward emerges from this email exchange. Rather, it shows that consideration was being given to the request made by the Applicant for assistance. 30 No further evidence was filed by the Applicant. And no submissions were filed, contrary to the directions of this Court. 31 There was, in particular, no attempt made by the Applicant to substantiate his claims by reference to the transcript of the hearing on 19 December 2016 nor by reference to any other document. 32 Rather than pursuing the course the subject of directions made on 14 February and 21 March 2017 to file evidence, the Applicant at the hearing on 27 April 2017 sought the issue of subpoenas directed to the following persons requiring their attendance to give evidence, namely: the barrister who appeared for the Commonwealth in the proceeding before the Federal Circuit Court; the barristers to whom the matter was referred by the Bar Association to provide Pro Bono assistance but who later returned the brief; and Ms Sare. No explanation was forthcoming as to why such subpoenas had not been previously sought. However, even had an earlier application been made, the request for leave to issue the subpoenas would have been refused. There was not any evidence or any other basis to suggest (for example) that the Federal Circuit Court Judge had attempted to "scare" barristers off taking the brief. The issue of any subpoena would have been purely an impermissible "fishing" exercise. 33 The application made orally by the Applicant for the issue of subpoenas is refused. 34 The allegations made by the present Applicant are truly scurrilous and unsubstantiated. They are no more than the grumblings of a disgruntled litigant deprived of any sense of responsibility or restraint when attacking the integrity of a Federal Circuit Court Judge. Although it has previously been recognised that a litigant should be permitted to fearlessly advance submissions alleging judicial misconduct, it has equally been recognised that there must be a "responsible basis" upon which such submissions are founded: cf. Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [114] per Logan and Flick JJ. It was there further stated that "where such allegations are irresponsibly advanced, [a party] can equally expect from this Court the swift condemnation that he deserves": at [116]. 35 The allegations in the present proceeding are rejected as unfounded. No attempt was made by the Applicant to substantiate his allegations by reference to any evidence; rather, the course pursued by the Applicant was to shun the opportunity to file evidence upon which a submission could thereafter be developed and to content himself with the making of further unsubstantiated submissions. The fact that the Applicant is presently in Nigeria provides no satisfactory explanation as to why no attempt was made to file any relevant evidence to even try to support the claims made. 36 Any judge of any superior court, by virtue of the judicial office held, should always be subject to public scrutiny and criticism. But the criticism must be well-founded. Such criticism has long been regarded as for the public benefit: The King v Nicholls (1911) 12 CLR 280 at 286. In delivering the judgment of the Court, Griffith CJ there observed: … if any Judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel. Similarly, in The King v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 257 to 258, Evatt J said (citing Nicholls): Fair criticism of the decisions of the Court is not only lawful, but regarded as being for the public good ; but the facts forming the basis of the criticism must be accurately stated, and the criticism must be fair and not distorted by malice. The criticisms made by the present Applicant of the Federal Circuit Court Judge were not of such a kind. 37 There is no substance to any of the claims made in the Originating Application challenging the conduct of the Federal Circuit Court Judge. It is to be dismissed. CONCLUSIONS 38 Proceeding No NSD 2206 of 2016 is without substance. It is to be dismissed. 39 Rather than dismissing proceeding No NSD 2207 of 2016 by reason of default on the part of the Applicant (for example, in failing to comply with directions for the filing of submissions) as sought on behalf of the Second and Third Respondents, the course pursued has been to consider the substance of the claims made in that proceeding. The claims made are groundless. 40 The claim made for interlocutory relief in that proceeding, together with the proceeding itself, are to be dismissed. The Applicant should pay the costs of the Second and Third Respondents. THE ORDERs OF THE COURT ARE: 1. The claim for interlocutory relief in proceeding No NSD 2207 of 2016 is refused. 2. The Originating Application for Judicial Review filed on 23 December 2016 in proceeding No NSD 2206 of 2016 is dismissed. 3. The Originating Application for Relief under Section 39B Judiciary Act 1903 filed on 23 December 2016 in proceeding No NSD 2207 of 2016 is dismissed. 4. The Applicant is to pay the costs of the Second and Third Respondents, being the Commonwealth and the Minister for Immigration and Border Protection, in proceeding No NSD 2207 of 2016. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 4 May 2017