FEDERAL COURT OF AUSTRALIA

BBD15 v Bochner [2015] FCA 1230

Citation:	BBD15 v Bochner [2015] FCA 1230	
		
Parties:	BBD15 v KATRINA BOCHNER	
		
File number:	SAD 294 of 2015	
		
Judge:	WHITE J	
		
Date of judgment:	13 November 2015	
		
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of Registrar to refuse to accept for filing documents intended to commence proceedings – whether documents constituted an abuse of process – whether documents disclosed a cause of action within the Court’s jurisdiction –whether decisions sought to be reviewed were “privative clause decisions” and thus not reviewable by the Federal Court of Australia – whether error of law – decision of Registrar affirmed 	
		
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Constitution s 75
Federal Court of Australia Act 1976 (Cth) s 21
Federal Court Rules 2011 (Cth) r 2.26
Judiciary Act 1903 (Cth) s 39B 
Migration Act 1958 (Cth) ss 5, 5E, 474, 476A 	
		
Cases cited:	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 514
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 19
Combis v Jensen [2009] FCA 778; (2009) 179 FCR 150
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549
Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222
SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125
SZVCP v Minister for Immigration [2015] FCCA 2576
SZVCP v Minister for Immigration [2015] FCCA 2577
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 	
		
Date of hearing:	7 October 2015	
		
Place:	Adelaide	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	38	
		
Counsel for the Applicant:	The Applicant appeared in person	
		
Counsel for the Respondent:	The Respondent did not appear	

IN THE FEDERAL COURT OF AUSTRALIA		
SOUTH AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	SAD 294 of 2015	
 
BETWEEN:	BBD15
Applicant
	
AND:	KATRINA BOCHNER
Respondent

JUDGE:	WHITE J	
DATE OF ORDER:	13 NOVEMBER 2015	
WHERE MADE:	ADELAIDE	

THE COURT ORDERS THAT:

1.	The application be dismissed.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
SOUTH AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	SAD 294 of 2015	
 
BETWEEN:	BBD15
Applicant
	
AND:	KATRINA BOCHNER
Respondent

JUDGE:	WHITE J	
DATE:	13 NOVEMBER 2015	
PLACE:	ADELAIDE	

REASONS FOR JUDGMENT
1		On 25 August 2015, the applicant sought to file an originating application and a supporting affidavit in the South Australian District Registry of this Court.  The documents indicated that the applicant intended seeking relief under s 39B of the Judiciary Act 1903 (Cth) in relation to his detention in an immigration detention centre.  
2		The District Registrar considered that the documents did not disclose a cause of action within this Court’s jurisdiction.  Accordingly, the District Registrar, referring to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR), refused to accept the documents for filing.  
3		The applicant now seeks, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), review of the District Registrar’s decision.  He is unrepresented.
4		The District Registrar is the respondent to the application.  She has filed a submitting appearance. 
5		The respondent to the applicant’s proposed proceedings was named as “Minister for Immigration and Border Protection or Border Force”.  The Minister did not seek to be heard on the present application. 
6		The background which I set out below is derived from the applicant’s affidavits.  
7		The applicant is a person in immigration detention.  Between 2 December 2011 and 12 March 2015, he was detained at the Villawood Detention Centre.  On 13 March 2015, the applicant was transferred to the Christmas Island Detention Centre.  He remained in that centre until a date in September 2015 when, for reasons not disclosed to this Court, he was transferred to the Maribyrnong Immigration Detention Centre in Melbourne.  
8		The applicant wishes to have judicial review of the decision to transfer him to detention on Christmas Island and to keep him in detention there.  He wishes to be detained at an alternative place of detention.
9		In the proposed proceedings, the applicant sought a declaration and an injunction.  Both were in composite form.  The declaration that the applicant sought in the proposed proceedings was as follows:
A DECLARATION THAT:
a)	as the obligation imposed by section 189 of the Migration Act 1958 for the detention of unlawful non‑citizens does not impose a requirement to hold the unlawful non‑citizen in an immigration detention centre or state or territory correctional or remand detention facility or police watchhouse, but provides detention may occur at another place approved by the respondent Minister in writing, and
b)	as the obligation to take unlawful non‑citizens into detention applies only for the purposes of section 198 of the Migration Act and is not an obligation to detain unlawful non‑citizens at large; and
c)	as the form and period of detention authorised by section 196 is only that which is reasonabl[y] necessary for the purposes of section 196 and may not be punitive or arbitrary in nature; and
d)	as the respondent Minister has the discretion to determine the place of detention of an unlawful non‑citizen in each case, subject to his or her obligation[s] at law; and
e)	as the decisions of the respondent Minister on the place of detention to apply to a non‑citizen are and is an administrative decisions (sic); and
f)	as the respondent Minister is required, in making such administrative decisions, to act in accordance with Australia’s Intentional Treaty Obligations insofar as they are relevant in the circumstances of each case; then
g)	in accordance with Australia’s obligation under the ICCPR, and the Convention Against Torture (CAT) and the Constitution of Australia and the Migration Act 1958; then
h)	the respondent Minister is required to give very careful consideration under those obligations to ensure that I the applicant [named] is not adversely affected by his decision on the place of my detention; and
i)	in accordance with those obligations, the respondent Minister is required to ensure that in any decisions he makes which affects my place of detention will not be punitive, arbitrary or cause me or put me in a situation where I am exposed to and be subjected to distressing and traumatic incidents and discriminating and vilifying conduct which affects my mental health and torture and abuse from its agents SERCO and other detainees on a daily and consistent basis; and
j)	in accordance with section 116 and 117 of the Constitution of Australia, the respondent Minister is required as a matter of his duty of care to me that I am not discriminated against nor be subjected to daily acts of distressing and traumatic incidents and discriminating and vilifying conduct and mental torture and abuse from its agents SERCO and it managers, ERT staff members and its cleaners and other staff members and other detainees on a daily and consistent basis and not be separated or removed from having access to my visitors nor be denied my ability to attend church and practice my religion at the place of my detention by the Minister.

10		Those parts of the declaration sought in paras (a) to (g) appear to be sought as a preface to the remaining portion of the declaration.  In paras (h) to (j), the applicant seeks, in effect, a declaration to the effect that the Minister is required, in his decisions as to the place of the applicant’s detention to have regard to identified obligations, to ensure that the decisions concerning the applicant’s place of detention will not be punitive, arbitrary or cause the applicant to be subjected to detriments of particular kinds and to ensure that, in any place in which the applicant is detained, he will not be discriminated against or subjected to detriment of defined kinds. 
11		The injunction sought was expressed as follows:
AN INJUNCTION:
(a)	restraining the respondent Minister from detaining me the applicant at Christmas Island Immigration Detention Center that has affected my mental health and caused me significant trauma due to the conduct of its agents and other detainees and a breach of the duty of care owed to me by the Minister;
(b)	An order requiring that my detention occur at an alternative place of detention in an APOS facility.

12		As can be seen, the applicant proposed seeking an injunction restraining the Minister from detaining him at the Christmas Island Immigration Detention Centre and requiring the Minister to detain him at an alternative place of detention.  
13		In substance, the proposed proceedings concerned the decision of the Minister in respect of the applicant’s place of detention and, possibly, any future decision which the Minister may make concerning that place of detention.
14		Rule 2.26 of the FCR, on which the District Registrar relied, provides as follows:
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.

15		By a letter to the applicant of 25 August 2015, the District Registrar informed the applicant that, having regard to this rule, she was unable to accept his documents for filing.  After setting out in the letter the terms of r 2.26, the District Registrar continued:
The documents you have sought to file do not disclose a cause of action which may be heard by the Federal Court of Australia.  As a result I consider that it would be an abuse of process if they were to be accepted for filing.  
I return your documents to you.

16		The criterion on which the Registrar acts under r 2.26 is satisfaction that the document in question is an abuse of the process of the Court, or is frivolous of vexatious, and not the Registrar’s satisfaction that the Court does not have jurisdiction to hear the proposed claim.  Those concepts are not interchangeable.  As Collier J observed in Combis v Jensen [2009] FCA 778; (2009) 179 FCR 150 at [47], “a claim by a litigant that the Court has no jurisdiction is ... distinguishable from a claim that the litigation constitutes an abuse of process”.  An applicant may bring proceedings in the Court in the mistaken belief that it has jurisdiction to hear and determine the claim without thereby abusing the process of the Court.  Something more is usually required in order that a document be characterised as an abuse.  Such circumstances include those when the proceedings sought to be commenced are for an improper purpose (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509) and when the proceedings can be “clearly seen to be foredoomed to fail” (Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393).  Circumstances of the latter kind may exist when, whatever may be the underlying merits of the proposed claim, it is obvious that the Court does not have jurisdiction to hear and determine the claim.  In these circumstances, the lack of jurisdiction in the Court, on the one hand, and abuse of the Court’s process, on the other, overlap.  
17		There will be circumstances in which r 2.26 may be properly invoked.  The statement by the plurality in Williams v Spautz of the rationale for the power of courts to stay proceedings found to be an abuse of process is pertinent in this context also:
[E]very court is “in duty bound to protect itself” against an abuse of its process.  In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse or process in the context of criminal proceedings.  ... The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike.  The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.

18		Nevertheless, it is to be expected that the circumstances in which a Registrar will exercise the power under r 2.26 will be confined to those in which the abuse is obvious.  That follows from both the peremptory nature of the exercise of the power and its effect in depriving the applicant from having any hearing at all.  This suggests that the cases in which a Registrar may think it appropriate to exercise the power are likely to be rare and exceptional.  
19		The amenability of a Registrar’s decision of the present kind to judicial review under the ADJR Act has been accepted: Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222 at [50].
20		The question in the present case as to whether the applicant has demonstrated a ground of review of the kind for which s 5 of the ADJR Act refers devolves to one of whether the District Registrar’s decision involved an error of law, within the meaning of s 5(1)(f) of the ADJR Act.  That question is whether the District Registrar was correct to hold that this Court does not have jurisdiction to hear and determine the proposed claim of the applicant so that it can be said now that the proposed claim is foredoomed to fail.
21		The starting point for the consideration of this question is that the Court is established by statute and has the jurisdiction vested in it by statute.  
22		Section 476A of the Migration Act 1958 (Cth) confines this Court’s jurisdiction with respect to “migration decisions”.  It provides (relevantly):
476A  Limited jurisdiction of the Federal Court
(1)	Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a)	the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
(b)	the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c)	the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or
(d)	the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.
(2)	Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
...

23		The applicant’s proposed proceedings are not within subparas (a)‑(d) of the subs (1) so that, if the decision in respect of which he is seeking relief is a “migration decision”, then the Court does not have jurisdiction.  The opening words of s 476A indicate that this is so despite the terms of s 39B of the Judiciary Act which may otherwise have conferred jurisdiction on the Court.  
24		The term “migration decision” is defined in s 5 of the Migration Act:
migration decision means:
(a)	a privative clause decision; or
(b)	a purported privative clause decision; or
(c)	a non‑privative clause decision; or
...

25		The term “privative clause decision” is defined in s 5 to have the meaning given by s 474(2).  That provision defines a privative clause decision as follows:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

The qualifications in subss (4) and (5) to which this definition refers are not pertinent presently.  
26		Essentially, a “privative clause decision” is a decision of an administrative character made under the Migration Act or under regulations or instruments made under the Migration Act. 
27		Section 476A(1) accordingly means that, apart from the matters to which subparas (a) to (d) refer, this Court does not have original jurisdiction with respect to decisions of an administrative character made, or proposed to be made, under (relevantly) the Migration Act.  The decision of the Minister as to the place at which the applicant is detained, is such a decision.  
28		The other limbs of the definition of “migration decision” do not assist the applicant.  The term “purported privative clause decision” is defined in s 5E of the Migration Act:
5E  Meaning of purported privative clause decision
(1)	In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a)	a failure to exercise jurisdiction; or
(b)	an excess of jurisdiction;
in the making of the decision.
(2)	In this section, decision includes anything listed in subsection 474(3).

In effect, purported privative clause decisions are those decisions which would otherwise be privative clause decisions if there were not a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision.  
29		Section 5 provides that the term “non‑privative clause decision” has the meaning given by s 474(6) of the Migration Act.  That provision specifies that the decisions listed in s 474(4) or in regulations made pursuant to s 474(5) are non‑privative clause decisions.  The decisions which the applicant wishes to impugn are not of that kind.  
30		The applicant referred to the jurisdiction vested in the High Court by s 75(iii) and (v) of the Constitution, noting that s 39B of the Judiciary Act has the effect of vesting the same jurisdiction in this Court.  However, as indicated, the opening words to s 476A(1) have the effect of excluding the jurisdiction which this Court would otherwise have in the present case by virtue of s 39B.  
31		Next, the applicant referred to s 21 of the Federal Court of Australia Act 1976 (Cth).  Section 21 provides that the Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.  Thus, s 21 is not an independent source of this Court’s jurisdiction which can be invoked in the present case.
32		Next, the applicant referred to a number of previous decisions of this Court and argued that the Court has jurisdiction presently for the same reasons that jurisdiction was found in those cases.  In several instances, the applicant identified the previous authorities by description, and not by name or citation.  As best I can tell, the following are the authorities to which the applicant referred:
·	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 514
·	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65
·	S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549
·	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 19
·	SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125
33		In addition, the applicant referred to two decisions of the Federal Circuit Court:
·	SZVCP v Minister for Immigration [2015] FCCA 2576
·	SZVCP v Minister for Immigration [2015] FCCA 2577
34		I have not been able to discern in any of these authorities any basis upon which it could be held that the Court does have jurisdiction in respect of the proceedings which the applicant sought to file on 25 August 2015.  
35		Accordingly, the District Registrar was correct to hold that Court does not have jurisdiction to hear and determine the proposed proceedings of the applicant by which he sought to impugn that decision.
36		I have considered whether it could be said that the applicant’s proposed proceedings sought in part judicial review of decisions concerning aspects of his treatment while held in detention at the Christmas Island Detention Centre.  The applicant did not argue that the proposed proceedings should be characterised in that way and it would be difficult to do so, particularly having regard to the composite nature of the relief sought by the applicant.  But more fundamentally, even if the applicant is seeking judicial review of decisions of that kind, they would remain decisions under the Migration Act which s 476A puts beyond the jurisdiction of this Court.
37		For the reasons given above, I consider that the District Registrar was correct to conclude that this Court lacks the jurisdiction to hear and determine the applicant’s proposed proceedings.  In those circumstances, the proceedings would, if commenced, be foredoomed to fail.  On that basis they can, even without regard to the applicant’s purpose in bringing them, be characterised appropriately as an abuse of the process of this Court.  That being so, the applicant has not shown that the District Registrar’s decision was affected by an error of law.
38		Accordingly, the application is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.	

Associate:

Dated:	13 November 2015