Robertson and Decision-Maker (Practice and Procedure) (2025, ARTA)

by Jon Papalia

Decision and
Reasons for Decision

Robertson and Decision-Maker (Practice and Procedure) [2025] ARTA 22 (9 January 2025)
Applicants:	Bruce Campbell Robertson
Respondent:	Decision-Maker
Tribunal Number:	2024/10661; 2024/10673; 2024/11158
Tribunal:	General Member J Papalia
Place:	Perth
Date:	9 January 2025
Decision:	The applications in 2024/10661, 2024/10673, 2024/11158 are each dismissed under s 101(1) of the ART Act. The Tribunal further orders under s 101(2) of the ART Act that the Applicant is prohibited from making a subsequent application for review in respect of the events of 31 October 2024 at Perth International Airport or his dispute with McDonald's Australia Limited, without leave of the Tribunal.

 

.................[SGD].......................................................

General Member J Papalia

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – whether application frivolous, vexatious, misconceived or lacking in substance – whether has no reasonable prospects of success – whether an abuse of process – interaction at Perth Airport – dispute with McDonald's Australia Limited – no reviewable decision – abuse of process – applications dismissed – prohibited from making subsequent application without leave

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) (repealed), s 42B

Administrative Review Tribunal Act 2024 (Cth), ss 12, 13, 101(1), 101(2)

Anti-Discrimination Act 1991 (QLD)

Criminal Code Act 1995 (Cth), s 474.17

Customs Act 1901 (Cth), pt XII, ss 243AB(3), 243X, 269SHA, 273GA

Freedom of Information Act 1982 (Cth), s 57A

Migration Act 1958 (Cth), ss 134, 166(1)(b), 172(4), 306, 311F, 347(1), 474, 500

Privacy Act 1988 (Cth), s 96(1)

State Administrative Tribunal Act 2004 (WA), s 47

 

CASES

Frigger v Parkyn [2021] FCA 224

Plaintiff S157/2002 v Commonwealth [2003] HCA 2;(2003) 211 CLR 476

Re Ellis and Director-General of the Department of Transport [2011] WASAT 142

Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213

Re Walthen and Deputy Commissioner of Taxation [2008] AATA 223; (2008) 71 ATR 342

Re Young [2020] HCA 13; (2020) 94 ALJR 448

Robertson v McDonald's Australia Limited [2021] QIRC 344

Robertson v McDonald's Australia Ltd (No 2) [2022] ICQ 011; (2022) 316 IR 237

Robertson v McDonald's Australia (No 8) [2023] QIRC 192

Robertson v McDonald's Australia Ltd (No 3) [2024] ICQ 009

Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55

 

SECONDARY MATERIALS

Migration Regulations 1994 (Cth), regs 3.01(3), 3.08

Rules of the Supreme Court 1971 (WA), r 5

Statement of Reasons

INTRODUCTION

1. The Applicant is an Australian citizen. He appears to be aggrieved by events that unfolded at Perth International Airport on 31 October 2024 and by an employment dispute that was dealt with by the Queensland Human Rights Commission and the Queensland Industrial Relations Commission. He has filed three applications for review with the Administrative Review Tribunal (Tribunal) in respect of these issues and has not engaged with the Tribunal's Registry's (Registry) queries regarding the jurisdictional basis for his applications in an appropriate manner. For the following reasons, the Tribunal has determined that the applications should be dismissed because they are misconceived and are otherwise an abuse of the process of the Tribunal. The manner of the Applicant's engagement with the Registry has also led to the conclusion that he should be prevented from bringing a further application in respect of the same subject matter, without leave of the Tribunal.

BACKGROUND

2. In 2024/10661, and by application lodged online on 16 December 2024, the Applicant purports to seek review of decisions made by Australian Border Force (ABF) officers at Perth International Airport on 31 October 2024. Notwithstanding the inaccuracy with which the Applicant completed the application form in terms of his personal details and key dates, the Applicant provided the Tribunal with material released by both the ABF and the Australian Federal Police (AFP) under the Freedom of Information Act 1982 (Cth) (FOI Act) in respect of the events of 31 October 2024 and their interactions with the Applicant.

3. In 2024/10673, and by further application lodged online on 16 December 2024, the Applicant refers to the events of 31 October 2024. He claimed to have 'made ignored Applications, to the federal court'. In addition to the material provided in the first application, the Applicant provided a letter and reasons for decision from a Freedom of Information (FOI) decision-maker in the AFP dated 13 December 2024. He subsequently advised the Tribunal on 20 December 2024 that he was not challenging the FOI decision, rather his complaint was about the conduct of the ABF on 31 October 2024.

4. In 2024/11158, and by application lodged online on 22 December 2024, the Applicant refers to a purported refusal by the Office of the Australian Information Commissioner in November 2024 to deal with his privacy complaints in respect of McDonald's Australia Limited.

5. When the Tribunal has sought further information from the Applicant and invited him to comment on the validity of his applications, the Applicant has responded in an entirely inappropriate fashion.

6. For example, on 20 December 2024, the Applicant emailed the following to the Perth Registry of the Tribunal in two separate emails:

There is no clear decision made by the A.R.T it waffles on as to disclosure etc.

It does not relate to my complaint by admin, glory-hunting.

I do not consent to any details being made public as to events. A.R.T failed [miserably].

You are an embarrassment madam.

I seek a review citing incompetence and bias.. Where no actual action by the Commonwealth was considered under the guise it was not understood.

You lie it is where border screening was refused ,then unlawfully detained.

Spineless hicks.

…

Refused border screening.

Unlawfull detention.Its not rocket science there is no known paperwork to initial minutes hence A.R.T can not be provided with a copy.

Your switchboard woman is a joke , and wanted D.O.B to be switched to you.

I decline that farce.

If A.R.T are not aware of the complaint its on you and A.R.T.

7. On 20 December 2024, the Applicant lodged with the Tribunal documents provided to him by the ABF regarding their baggage examination on 31 October 2024. He also tried to tell the Tribunal that it was not to use his name or personal details in any correspondence.

8. On 22 December 2024, the Applicant provided the Tribunal with an extract of an email from the AFP dated 19 December 2024, where the APF declined to investigate his 'Report of a Commonwealth Crime' dated 13 December 2024 and referred him to the Queensland Police Service or to the Queensland Corruption and Crime Commission.

DISMISSAL UNDER S 101 OF THE ART ACT

9. Section 101 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that:

1 The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospects of success; or

(c) is otherwise an abuse of the processes of the Tribunal.

2 If the Tribunal dismisses an application (the substantive application) under subsection (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.

3 The order has effect despite any other provision of this Act or any other Act.

10. This provision is relevantly identical to an equivalent power found in s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and is slightly more expansive than the former s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed), which provided for a dismissal power where an application was frivolous or vexatious.

11. In Re Ellis and Director-General of the Department of Transport [2011] WASAT 142 (Ellis), Judge Sharp, Deputy President, summarised the principles governing the exercise of the dismissal power under s 47 of the SAT Act as follows:^[1]

In Laurent and Commissioner of Police [2009] WASAT 254 (Laurent), Deputy President Judge Pritchard (as she then was) considered in detail the power of the Tribunal in relation to applications under s 47 of the SAT Act. From what her Honour said in Laurent, the Tribunal makes the following observations, which continue to reflect the Tribunal's position with regard to the powers of the Tribunal under s 47 of the SAT Act:

1 Section 47(1) of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose, or is otherwise an abuse of process. If s 47 of the SAT Act applies, the Tribunal may order under s 47(2) of the SAT Act that the proceeding be dismissed or struck out and make any appropriate orders. The Tribunal may exercise this power on its own initiative or on the application of a party.

2 Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when a party whose case is the subject of an application under s 47 is self-represented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.

3 Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding. The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.

4 When, as in the present case, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.

5 In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.

The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent; see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] - [45].

[65] A complaint is misconceived or lacking in substance where the complainant has no arguable case in fact or law which should be allowed to be resolved at a full hearing; see Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79].

The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact; see Laurent at [23].

12. In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213, Justice Vaughan undertook a comprehensive review of the meaning of each of the terms 'abuse of process', 'frivolous' and 'vexatious' found in Order 67 rule 5 of the Rules of the Supreme Court 1971 (WA), at [25]-[33].^[2]

13. The above analysis applies equally to the powers found in s 101 of the ART Act.

CONSIDERATION

The events of 31 October 2024

14. The AFP Incident Report (IR) and supporting material provided by the Applicant to the Tribunal indicates that on 31 October 2024 uniformed AFP officers were called to attend the Perth International Airport to assist the ABF with a passenger who refused to complete an incoming passenger card. That passenger was the Applicant, who had recently arrived on a flight from Vietnam.

15. This material demonstrates that the Applicant was subject to a baggage examination conducted by the ABF and that he was also issued with an infringement notice under s 243X of the Customs Act 1901 (Cth) (Customs Act) as an alternative to prosecution for an offence under s 234AB(3) of the Customs Act regarding unauthorised use of a mobile telephone, which the Applicant declined to accept and the Tribunal infers that he has subsequently been charged with under summons.

16. The ABF material released under FOI includes the following notes regarding their interaction with the applicant on 31 October 2024, as recorded in their intelligence system:

Pax travelling from Vietnam.

Pax refused to fill out IPC.

Pax was detained under s 219ZJD of the Customs Act.

Pax was not asked the 10 standard baggage questions.

Pax was carrying 1 x bag.

100% baggage examination conducted.

Pax was on his mobile phone whilst examination was being conducted.

Pax was directed multiple times not to use a mobile phone.

Nothing of ABF interest located in the bag.

AFP attended.

Infringement notice issues for contravention of s 234AB(3) – failure to comply with a direction not to use mobile phone. Infringement Notice# R001670.

No further dealings.

17. This Tribunal does not have a 'general review power' and cannot inquire at large into matters that might be of interest. Rather, the Tribunal is conferred powers by other enactments which provide that applications may be made to the Tribunal for review of decisions made under the particular act or legislative instrument.^[3]

18. Section 166(1)(b) of the Migration Act 1958 (Cth) (Migration Act) relevantly requires persons (whether Australian citizen or non-citizen) entering Australia to provide ABF officers working at Australia's ports with 'any information' required by the Migration Act or the Migration Regulations 1994 (Cth) (Migration Regulations). This includes that the passenger must complete and provide an incoming passenger card.^[4] Failure to complete and provide an incoming passenger card is a strict liability offence under reg 3.08 of the Migration Regulations.

19. Australian citizens who do not complete an incoming passenger card bypass immigration clearance when they leave the port without complying with the requirement to provide the information to a clearance officer.^[5]

20. The Migration Act confers merits review rights to this Tribunal in respect of specific decisions made under the Act, namely those relating to visa decision-making and the registration of and disciplining of migration agents.^[6] Decisions otherwise made under the Migration Act cannot be reviewed in any court or tribunal save for on judicial review for jurisdictional error or by a collateral challenge in tort.^[7]

21. Part XII of the Customs Act provides ABF officers at Australia's ports with various detention and search powers. Like the Migration Act, some, but not all, decisions made under this Act are reviewable by the Tribunal.^[8]

22. To the extent that the Applicant has provided the Tribunal with an FOI decision made by the AFP and evidence of documents released by the AFP and the ABF under the FOI Act, these decisions are not reviewable by the Tribunal other than under s 57A of the FOI Act, which relevantly involves decisions made by the Information Commissioner.

23. Detention and search decisions made under either the Migration Act or the Customs Act are clearly not reviewable by this Tribunal. Any decisions to prosecute the Applicant for offences against either Act would also not be reviewable.

24. Accordingly, the applications in 2024/10661 and 2024/10673 are plainly unsustainable and shall be dismissed.

The McDonald's Privacy Complaint

25. In the third application, the Applicant refers to current legal action that he has with McDonald's Australia Limited and complaints purportedly made to the Information Commissioner under the Privacy Act 1988 (Cth) (Privacy Act) regarding the same.

26. A quick search on Austlii indicates that the Applicant has a long-running dispute in Queensland about this issue, commencing with a complaint made under the Anti-Discrimination Act 1991 (QLD) to the Queensland Human Rights Commission and which was subsequently referred to the Queensland Industrial Relations Commission and then appealed to the Industrial Court of Queensland.^[9]

27. The Applicant has provided the Tribunal with no evidence of any decision made by the Information Commissioner that is reviewable by this Tribunal under s 96(1) of the Privacy Act.

28. He is not entitled to re-litigate questions that have otherwise been determined in other fora.

29. The application in 2024/11158 discloses no reviewable decision and is otherwise an abuse of process. It shall be dismissed.

Prohibition on further application without leave

30. Given the nature of the Applicant's correspondence with the Tribunal by telephone and email, which the Tribunal notes are inappropriate and potentially unlawful,^[10] the Tribunal has decided that he should be prohibited from lodging a further application in relation to the same subject matter without leave of the Tribunal.

DECISION

31. For the above reasons, the applications in 2024/10661, 2024/10673, 2024/11158 are each dismissed under s 101(1) of the ART Act. The Tribunal further orders under s 101(2) of the ART Act that the Applicant is prohibited from making a subsequent application for review in respect of the events of 31 October 2024 at Perth International Airport or his dispute with McDonald's Australia Limited, without leave of the Tribunal.

 

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of General Member Papalia

 

..........[SGD]..............................................................

Associate

Dated: 9 January 2025

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1. Ellis at [63]–[65].
2. See also Frigger v Parkyn [2021] FCA 224 at [10]–[13]; Re Young [2020] HCA 13; (2020) 94 ALJR 448 at [11]–[13].
3. ART Act, ss 12–13; see Re Walthen and Deputy Commissioner of Taxation [2008] AATA 223; (2008) 71 ATR 342 at [25]–[29].
4. Migration Regulations, reg 3.01(3).
5. Migration Act, s 172(4).
6. See Migration Act, ss 136, 306, 311F, 347(1), 500.
7. See Migration Act, s 474; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [7].
8. See Customs Act, ss 269SHA, 273GA.
9. See Robertson v McDonald's Australia Limited [2021] QIRC 344; Robertson v McDonald's Australia Ltd (No 2) [2022] ICQ 011; (2022) 316 IR 237; Robertson v McDonald's Australia (No 8) [2023] QIRC 192; Robertson v McDonald's Australia Ltd (No 3) [2024] ICQ 009.
10. See Criminal Code Act 1995 (Cth), s 474.17.