Applicant S264 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1367

FEDERAL COURT OF AUSTRALIA

Applicant S264 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1367

APPLICANT S264 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 354 OF 2003

GYLES J
14 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 354 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	APPLICANT S264 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	14 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The motion for the extension of time is dismissed.

2.   The application for relief is dismissed.

3.   The applicant is to pay the costs of the motion and of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 354 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	APPLICANT S264 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	14 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a motion for an extension of time within which to commence proceedings for prerogative writs (or what used to be called prerogative writs) seeking to challenge a decision of the Refugee Review Tribunal (the Tribunal).  The proceeding was commenced in the High Court of Australia on 15 August 2002 and has been remitted by that Court to this Court.

2. A brief chronology of events is as follows.  An application for a visa was refused by a delegate of the Minister on 7 August 2001.  Application was made for review to the Tribunal which heard the review on 24 September 2001 and gave its decision on 24 October 2001 affirming the decision of the delegate to refuse the visa.  Proceedings were then commenced in this Court to review the decision of the Tribunal.  That application came before Moore J of this Court who on 25 March 2002 delivered judgment dismissing the application.  Thereafter the applicant pursued what has been described as administrative procedures seeking to persuade the Minister to give a more favourable decision. The applicant did not succeed.  As stated above, the High Court proceeding was commenced on 15 August 2002. 

3. The form of the draft order nisi filed in the High Court was very general. The relevant part of it claims that the respondent's decision was not reached in accordance with relevant applicable law and as such the decision made by the respondent was made outside the power and authority of the first respondent. Next, it is claimed that the first respondent's decision is unfair, unreasonable and not bona fide. Next, the prosecutor has been denied natural justice. Another issue about the constitutional validity of s 474 was also raised. No further particulars were given.

4. It is accepted that an application for an extension of time should be decided upon the basis of the principles laid down in O 60 r 6 of the High Court Rules, which are in any event in familiar terms for a general time extension provision.  Under such provisions it is necessary first to explain delay, secondly to balance prejudice, and thirdly to establish an arguable case.  Now in the present matter, the prejudice to the applicant can be taken for granted in the sense that if time is not extended, it is accepted that the proceeding must be dismissed with the consequence that the present applicant will lose any opportunity of obtaining a refugee visa, at least through the court system.  The aspects of the explanation as to the delay on the one hand and arguable case on the other, are, however, rather interlinked in the present circumstances. 

5. I have referred to the fact that Moore J gave a decision which dismissed the application seeking to review the Tribunal's decision.  That application fell to be determined pursuant to s 39B of the Judiciary Act (Cth), which entitled the then applicant to bring forward any attack upon the decision below which could lead to relief pursuant to that section, which a number of judges of this court have held is indistinguishable in substance, in circumstances like the present, from the jurisdiction exercised by the High Court. Thus, any matter which can now be raised, could have been raised in the original Federal Court proceeding. It is true that s 474 of the Migration Act 1958 was operative, but, in the circumstances of the case, his Honour rejected the substance of the matters raised by the applicant and found it unnecessary to take the further step of considering the operation of s 474. I have been taken to the grounds, which were summarised by his Honour in the judgment, particularly between pars 18 and 20 of that judgment.

6. It will be appreciated that the order nisi in the present case has very little detail in it.  Counsel has endeavoured to identify today two particular matters of complaint.  The first matter relates to the use by the Tribunal member of an atlas, that proposed use not having been advised to the applicant, and the second complaint put forward is that one of the findings in relation to what happened to the brother of the applicant was irrational or illogical and thus, it is argued, caught by the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 (S20/2002).

7. It does not appear that the first matter was raised before Moore J, although it was apparent from the face of the reasons of the Tribunal that that had occurred.  The finding about what happened to the brother was, however, plainly in issue in the proceedings.  It may be that the shades of argument differed and the legal heading under which it was put may have varied, but it seems to me that finding was plainly and clearly in issue.  The use of the atlas, no matter what problems may arise in other cases, does not seem to me to lead to even an arguable case in the present matter because the discrepancy between the evidence and the atlas is relatively minor, and was not the subject of any particular adverse comment by the Tribunal.  I was not referred to any other part of the reasons which attributed anything to that discrepancy.  I have not carefully studied the argument as to the applicability of the so called irrational and illogical basis for the finding, leading to the application of S20/2002.  Suffice to say that the limits of that decision are controversial. 

8. However that may be, I have a clear view that, in this case, the prior decision of Moore J stands as a complete barrier to pursuing this proceeding any further.  I will not rehearse all the arguments which other judges have recently considered, concerning three related topics:  first of all, cause of action estoppel or res judicata, secondly, issue estoppel and thirdly the so called Anshun estoppel.  In my opinion, in the circumstances of this case, the nature of the issue is such that, approaching the matter as one of substance, the issue which arises pursuant to s 39B of the Judiciary Act is indistinguishable from that arising out of s 75(v) of the Constitution.  One cannot distinguish the causes of action and so res judicata applies.  Secondly, as I have indicated, I am satisfied that the topic of the second attack which is sought to be made here was raised in the proceeding before Moore J, although the precise way of putting it may have varied, and there is thus an issue estoppel about that.  In any event, it is clear that an Anshun estoppel would apply in circumstances like the present to all grounds.  There may be a residual escape from Anshun estoppel if it is required in the interests of justice.  However, that special residual power is not exercised because of negligence, inadvertence, accident or mistake.  It requires something beyond that.  It has been argued that in the present case special circumstances do exist founded upon the position of the applicant being in immigration detention, not being an English speaker (at least as a first language), not being versed in the law and being really at the mercy of those with whom he can communicate.  That is linked with the fact that Moore J made some critical comments about the procedure by which the matter had come before him and, is also coupled with the fact that the decision to pursue the administrative route rather than appeal from Moore J’s decision, if necessary through to the High Court, is something which can hardly be visited upon an appellant of this character who can really exercise no independent judgment of his own about it.  In my opinion those circumstances, whilst no doubt an explanation for what has occurred, are not sufficient to bring into force any residual discretion to not apply an Anshun estoppel. Therefore the applicant on this motion does not, in my opinion, establish the necessary arguable case, recognising that the threshold to do so is not very great. 

9. Furthermore, the history of the matter indicates that there is really no acceptable explanation for delay.  There was no need for two sets of proceedings.  The fact that the High Court proceedings came later seems to me to be somebody's afterthought.  There was no reason at all why there was not an appeal at the time if an appeal was to be pursued.  There was no reason every possible ground could not then have been taken.  I am not satisfied that there is an appropriate explanation for the delay.  If it had been desired to seek the appropriate relief from the High Court in the first place rather than the Federal Court then that could have been done.  The undoubted disadvantages which are suffered by persons who are in immigration detention do not mean that all of the rules of procedure and all of the rules of substance which apply to litigation in this Court and the High Court are simply waived.  If that is the general opinion, then it is wrong.

10. Therefore I propose to dismiss the application for an extension of time, despite the valiant efforts of counsel for the applicant.  It is accepted that the result of the failure to obtain an extension inevitably means that the application for writs must also be dismissed.

11. The motion for the extension of time is dismissed.  The application for relief is dismissed.  The applicant is to pay the costs of the motion and of the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             27 November 2003

Counsel for the Applicant:	A Seward
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 November 2003
Date of Judgment:	14 November 2003