M24 of 2003 v Minister for Immigration (No.2)
[2005] FMCA 600
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M24 of 2003 v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 600 |
| MIGRATION – Protection visa – res judicata – issue estoppel – Anshun estoppel. |
| Judiciary Act 1901, s.39B Federal Court of Australia Act 1976, ss.23, 32 |
| VAH v Minister for Immigration & Multicultural Affairs [2002] FCA 446 Taylor v Ansett Industries Ltd (1967) 18 FCR 342 Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Applicants S311/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 45 SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 404 19 Blair v Curran (1939) 62 CLR 464 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 BC v Minister for Immigration & Multicultural Affairs (2002) FCAFC 221 BC v Minister for Immigration & Multicultural Affairs (2001) FCA 1669 (4 December 2001) Applicants M237/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 95 |
| Applicants: | APPLICANTS M24 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 705 of 2004 |
| Judgment of: | McInnis FM |
| Hearing dates: | 14 & 18 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2005 |
REPRESENTATION
| Pro Bono Counsel for the Applicants: | Ms N Karapanagiotidis |
| Counsel for the Respondent: | Ms J Macdonnell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The Applicants shall pay the Respondent’s costs fixed in the sum of $6,500.00..
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 705 of 2004
| APPLICANTS M24 OF 2003 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application the applicants are husband and wife from Turkey. The applicants had applied for a protection visa on 13 January 2001. The applicant husband included his wife in the application as a member of the family unit. A delegate of the respondent refused the protection visas on 30 March 2001. An application for review was lodged with the Refugee Review Tribunal (the RRT) which affirmed the delegate's decision to refuse the protection visas on 31 August 2001 by a decision handed down on 21 September 2001.
The applicants applied to the Federal Court of Australia for review of the RRT decision on 17 October 2001. That application was made pursuant to s.39B of the Judiciary Act 1901. In that application the relief sought included the following:
1A writ of prohibition and an injunction against the Minister (and others) to prevent the Applicants being removed from Australia or any further step taken in reliance of the decision;
2A writ of certiorari to quash the decision or an order setting it aside;
3A declaration that the decision is invalid.
The final hearing in the Federal Court was conducted by Merkel J on 11 April 2002. At that hearing the applicant was represented by counsel and an instructing solicitor from Victorian Legal Aid. On 12 April 2002 Merkel J delivered judgment in the matter (See VAH
v Minister for Immigration & Multicultural Affairs [2002] FCA 446). In dismissing the applicant's application, Merkel J, after stating he was not satisfied the RRT had fallen into jurisdictional error in relation to the claim by the applicants, states the following:“19 The RRT's findings were open on the material before it and were based on matters, including the applicant's actual identity and profile, that were logically probative of the issue being determined. The RRT did not misunderstand the applicant's claims. Rather, the RRT did not accept those claims. The RRT, as it was entitled to do, made findings as to the applicant's actual ethnic identity and profile, as to relevant country information and other factors, to arrive at its conclusions. No particular factor was regarded as determinative by the RRT and, while views may differ as to the weight the RRT gave to particular findings, weight is a matter for the RRT as the arbiter of fact.
20 For the above reasons, I am not satisfied that the RRT misunderstood or failed to address the applicant's claims of actual and perceived or imputed ethnic identity and political profile or that the RRT fell into jurisdictional error in relation to those claims. As counsel for the applicant abandoned the other grounds set out in the Amended Application it must follow that the application is to be dismissed with costs.”
The respondent in this application has argued that the application is precluded by reason of the operation of the doctrine of res judicata and/or issue estoppel and/or Anshun estoppel. It is submitted, and I accept in the present circumstances, that the court has a duty to determine that preliminary issue of whether the claim is precluded by the operation of either the doctrine of res judicata or whether issue estoppel or Anshun estoppel applies before considering the substance of the matters sought to be agitated for and on behalf of the applicants who I note before this court are represented by pro bono counsel.
It is noted further in the chronology that the applicants did not appeal from the decision of Merkel J to the Full Court of the Federal Court. Instead it appears that on 12 February 2003, that is some 10 months after the decision of the Federal Court, the applicant lodged a draft order nisi and an affidavit in support with the High Court of Australia. That draft order nisi sought a declaration or a writ of prohibition or an injunction, or orders in the nature of certiorari or mandamus. On 26 February 2004 Hayne J made an order remitting the matter to the Federal Court, and on 4 June 2004 a registrar ordered the matter be transferred to the Federal Magistrates Court.
Before this court the applicants rely upon an amended application filed 15 October 2004. That amended application seeks review of the same RRT decision handed down on 21 September 2001. It seeks review pursuant to s.39B of the Judiciary Act and ss.23 and 32 of the Federal Court of Australia Act 1976 and relief by way of declaration certiorari, prohibition, mandamus or an injunction. The applicant has further relied upon updated contentions of fact and law, which although dated 14 November 2004, would appear to be filed in court on the first day of hearing, that is 14 April 2005. It is clear that the respondent has addressed those contentions, albeit that they were not filed in court on or about the date they were prepared.
Before considering whether or not res judicata, issue estoppel or Anshun estoppel applies, it is appropriate to set out the summary of the applications as they appeared previously before the Federal Court and the High Court and compare those applications and indeed the grounds relied upon with the grounds now relied upon in the amended application.
In the Federal Court proceedings, an amended application dated 1 March 2002 had been filed. A further amended application dated 13 March 2002 was filed (See court book 266-269). The grounds for review in the further amended application have been adequately set out by counsel for the respondent in further submissions relied upon during the course of the hearing as follows:
1The decision was made in breach of an indispensable condition or an essential pre-condition to the jurisdiction of the Tribunal and was not authorised by the Act or the Regulations because the Tribunal failed to determine whether the Applicants had a well founded fear of persecution based on the specific claims of the first applicant. In so doing, the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction. Six particulars were given of the alleged jurisdictional error.
2The Tribunal committed an error of law constituting jurisdictional error on the face of the decision. In support of that ground the applicants asserted the following:
1.The matters raised in paragraph 1 demonstrated that the Tribunal had asked itself the wrong questions, identified the wrong issue or issues, ignored relevant material in the treatment of the first-named Applicant's claims of persecution on the grounds of actual or imputed political opinion, race or membership of a particular social group, and
2.The Tribunal's adverse credibility findings were based on its misconceptions about the first Applicant’s ethnic identity rather than inconsistencies, contradictions or discrepancies in his evidence.
3The Tribunal breached an inviolable limitation or restraint on the power conferred upon it in that a breach of the rules of natural justice occurred with the making of the decision and the decision was manifestly unreasonable or based on illogical, irrational reasoning.
In dealing with the amended grounds of review, Merkel J in the Federal Court, as indicated from the extract earlier, was not satisfied that there had been any jurisdictional error. It was also noted in paragraph 20 of his Honour's decision set out above that other grounds had been abandoned in the amended application with the application being dismissed with costs. His Honour specifically was not satisfied that the RRT had misunderstood the applicant's claims or that issues were dealt with in a way which could not be claimed to be logically probative, or that it failed to address the applicant's claims of actual and perceived or imputed ethnic identity and political profile, or otherwise as indicated, fell into jurisdictional error.
In the High Court the applicants proceedings were based on seven grounds as follows:
1.The RRT failed to accord them natural justice;
2.The RRT failed or constructively failed to exercise its jurisdiction in that:
· It failed to take into account relevant considerations and took into account irrelevant considerations;
· It was affected by an error of law in the exercise of its power;
· There was an improper exercise of power conferred by the Act;
· The exercise of power under the Act was based on a finding for which there was no evidence or other material.
3.The RRT's decision was so unreasonable that no reasonable decision maker could have made it.
4.The RRT made the decision in circumstances which were otherwise contrary to law.
It is submitted by the respondent and I accept that the grounds of review sought to be agitated in the High Court proceedings do not appear to be any wider than the grounds of review relied upon in the Federal Court proceeding. So much is evident in a proper comparative analysis of the grounds set out above.
In the amended application relied upon by the applicants before this court and filed on 18 October 2004, there are some grounds which are not pursued. Counsel for the applicant has indicated to the court that ground 4 and paragraph (a)(i) and (ii) of the particulars subjoined to paragraph 4 are not pursued. Likewise paragraphs 6 and 7 of the amended application are not pursued. Accordingly it is necessary to only set out the remaining paragraphs as follows:
“4b)The Tribunal failed to take into account in its decision-making a relevant consideration, namely the corroborative witness evidence provided by the applicant wife:
i)The applicant wife provided independent corroborative evidence in support of the applicant's claims;
ii)The applicant wife's evidence was consistent with the version given by the applicant and was therefore relevant to the assessment of his credibility and his specific claims;
iii)In its decision, the Tribunal noted that the applicant wife gave evidence and failed to give it any further consideration;
iv)The Tribunal implied, without foundation, that the evidence was practiced and unreliable.
c)The Tribunal failed to take into account in its decision-making a relevant consideration, namely the witness evidence provided by a person known to the applicant and who had been granted refugee status by the Department (Mr Chouting):
i)The witness’s case shared factual similarities with the applicant’s case, including the following: the witness had resided in Northern Cyprus since 1993; of both parents, only his mother was Kurdish; he claimed to have been detained, interrogated and tortured for intervening in a fight involving a Turk and a Kurdish boy, and he arrived in Australia lawfully.
ii)The witness was accepted as a refugee by the Department of Immigration. The witness referred to country information that was in conflict with the account of his own personal experiences and stated that he had found his own reports to support his claims. The witness referred to the disappearance of a man by the name of FB and requested the Tribunal member research this man's unexplained disappearance.
iii)The witness’s account challenged the country information heavily relied upon by the Tribunal in it’s decision.
iv)Under its ‘findings and reasons’ the Tribunal made no reference to the witness’s evidence but rather used a finding that there was no ‘similar cases’ to the applicant’s as a basis for rejecting the applicant’s claims.
d)The Tribunal failed to make a finding with respect to the applicant's involvement with the CTP party.
i)The applicant claimed to have participated in the meeting of the republican Turkish party CTP and claimed at hearing that this had attracted police attention.
ii)The Tribunal failed to make a finding in relation to this claim and failed to take it into account in it’s assessment of the alleged incident of police brutality in April 2000.
5.The Tribunal misconstrued the applicant's claims and did not deal with the case presented to it and thereby committed jurisdictional error.
Particulars
a)The applicant refers to and repeats the contents of paragraph 4.
6.…
7.…
8.The decision was so unreasonable that no reasonable decision‑maker could have made it.
Particulars
a)The applicant refers to and repeats the contents of paragraphs 4-7.
9.The applicant was denied natural justice/procedural fairness.
Particulars
a)The applicant refers to and repeats the contents of paragraph 4.”
It was noted that counsel for the applicants indicated that the reference in the ‘particulars’ subjoined to paragraphs 5, 8 and 9 included a reference only to the remaining parts of the particulars in paragraph 4, namely (b), (c) and (d). It is assumed for the present purposes that the reference in paragraph 8 to the particulars subjoined to paragraph 7 no longer apply, given that paragraph 7 is not pursued. However, if I am wrong in relation to that assumption, then for reasons which will become apparent, nothing turns on that for the purpose of this application.
It is argued by the respondent that in the present case the grounds relied upon in this court are no wider than the grounds relied upon previously in the Federal Court. It is argued that in the present case, only the particulars of the grounds have changed. It is further argued that the applicants are attempting to now avoid the operation of the doctrine of res judicata and issue estoppel by seeking to characterise the particulars of their first ground of review as constituting a different cause of action. It is argued the attempt to prefer form over substance is contrary to authority and should be rejected.
It will be evident from the grounds relied upon that the essential claim of the applicants for refugee status, and in particular the applicant husband is that he was persecuted in the Turkish Republic of Northern Cyprus because he had and was perceived to have a Kurdish identity and profile and as a consequence has been imputed to have a pro‑Kurdish anti-government political opinion (See court book 273).
Relevant Law
Res judicata
In dealing with the issue or res judicata, it is submitted and I accept that this court is bound by decisions where it is held that the doctrine of res judicata applies to applications for judicial review. Reference was made to the decision of the Federal Court in the matter of Taylor v Ansett Industries Ltd (1967) 18 FCR 342 at 354-356 per Fisher J and 365 per Ryan J as cited by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 where his Honour states the following:
“43 The distinction between res judicata and issue estoppel was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ("Anshun") at 597 where Gibbs CJ, Mason and Aickin JJ stated:
‘The distinction between res judicata (in England called `cause of action estoppel') and issue estoppel was expressed by Dixon J. in Blair v. Curran (1939) 62 CLR 464, at p 532 in these terms: `in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order'.’
44 The doctrines of res judicata and issue estoppel have been held to apply to applications for judicial review: see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356 per Fisher J and at 365 per Ryan J.
45 If res judicata applies to the present proceeding, there is no discretion in the Court to allow the proceeding to continue. By operation of law the applicants are not able to maintain the proceeding as the plea, if made out, is a complete bar to the claim as the cause of action is extinguished by the first judgment: see Anshun at 612-613; Chamberlain at 511; Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 at 512.
It is submitted and I accept that where the doctrine of res judicata applies it will be a complete bar to the claim as the cause of action has been extinguished by the first judgment. As a matter of law, it is then appropriate in this case to determine whether the cause of action commenced on 12 February 2003 in the High Court is the same as that litigated in the former proceedings in the Federal Court.
In considering the question of whether the cause of action is the same, reference was made appropriately in my view to the following extract from the decision of Merkel J in Somanader where his Honour states the following:
“65 This co-incidence is, in a sense, dictated by the orders of Hayne J remitting to the Federal Court that part of the matter in which the grounds of relief sought reflected grounds under Pt 8 of the Act (in accordance with the limitation of the Federal Court's power to review under s 485(3)) and otherwise adjourned the application, in respect of any wider grounds, to a date to be fixed. Thus, his Honour's order ensured that the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8.”
Reference was made to the further decision of the Federal Court in the matter of Applicants S311/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 45 where Madgwick J expressed agreement with Merkel J in Somanader and further stated in SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 404 19 that:
“Res judicata would defeat an applicant from having multiple bites at the cherry of judicial review of Refugee Review Tribunal decisions.”
In my view those authorities referred to by the respondent are clearly binding in this court and should be applied in the further consideration of the issues before this court in dealing with the question of whether res judicata applies.
Issue estoppel
It is submitted and I accept that where the doctrine of res judicata applies, issue estoppel also generally applies as a complete bar to the proceeding. The respondent has referred to the decision of the High Court in Blair v Curran (1939) 62 CLR 464 where Dixon J in explaining the principles of issue estoppel states the following at 531,
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue so that it cannot afterwards be raised between the same parties or their privies.
In the same decision, Dixon J in comparing res judicata with issue estoppel states at page 532, the following,
In the first, the very right of cause of action claimed or put in suit, as in the former proceedings, passed into judgment so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied, the existence of which is a matter necessarily decided by the prior judgment, decree or order
Anshun estoppel
Reference was made to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. In particular, the following extract from the decision of Gibbs CJ, Mason and Aickin JJ was referred to as identifying a further principle separate from res judicata and issue estoppel by proving the following statement of principle by Sir James Wigram VC in Henderson v Henderson:
Where a given matter becomes a subject of litigation in and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (accept under special circumstances) permit the same parties to open the same subject matter of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation in which the parties exercising reasonable diligence might have brought forward at the time.
Further in the Anshun case at page 603, the court states the following:
It has generally been accepted that a party will be estopped from being in an action which if it succeeds will result in a judgment which conflicts with an earlier judgment.
It is argued by the respondent and I accept that the application to the Anshun doctrine is discretionary only in a limited sense. Reference was made by both parties to the decision of the Federal Court in BC v Minister for Immigration & Multicultural Affairs (2002) FCAFC 221 where the Full Court of the Federal Court followed a view of the Full Court of the Supreme Court of Victoria in Port Melbourne Authority v Anshun Pty Ltd (No 2) that:
… the learned judge having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the authority exercising reasonable diligence at a discretion only in the sense that although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in a sense that justice required the non-application of the general rule.
It is noted in the present case that counsel for the applicants had sought to rely upon the decision of the Federal Court at first instance in BC v Minister for Immigration & Multicultural Affairs (2001) FCA 1669
(4 December 2001) where in that case Sackville J states at paragraph 30 the following:
“30 It is not necessarily a simple matter to apply the "substance" test, particularly where the applicant's cause of action does not rest on facts that must be established by evidence, but on the grounds available for judicial review of a decision of an administrative tribunal or decision-maker. A factor to bear in mind in comparing the causes of action in different proceedings is that care is needed not to take a view that is "too expansive": Macquarie Bank v National Mutual, at 560. While Clarke JA made that observation in the context of examining the factual similarities between the two sets of proceedings, I think it equally applies to successive applications for judicial review of an administrative decision. It is to be remembered that res judicata, or cause of action estoppel, bars a litigant from pursuing a claim without the court retaining a discretion to ameliorate the application of the doctrine in unusual circumstances.”
I note that his Honour Sackville J in the BC decision, whilst making reference to successive applications and correctly identifying that res judicata or cause of action estoppel bar the litigant from a claim without the court retaining a discretion to ameliorate the application of the doctrine in unusual circumstances, further goes on, having purported to follow what the court had said in the Somanader decision, to state the following at paragraph 36:
“36 It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata (3rd ed, 1996) at [38]-[40].”
Counsel for the applicants sought to rely upon the last sentence in the passage referred to and to seek to argue that the claims made in the present proceedings are sufficiently distinct to warrant the conclusion that they are founded on separate causes of action. It is not necessary for me to determine whether indeed the conclusions of Sackville J apply in the present case. It is sufficient for this court to simply rely upon the decisions to which reference has been made, including the decisions of the High Court and the Federal Court in Somanader together with the Full Court decision in the BC case.
Reasoning
Counsel for the respondent argued that in the present case the cause of action is the same. Both actions seek review of the same decision of the Refugee Review Tribunal and both seek to rely upon s.39 of the Judiciary Act. The relief sought is the same. The parties in both proceedings are the same, hence the extract from the decision of Merkel J in Somanader at paragraph 66 referred to above is apposite to the present application.
In my view, the submissions made for and on behalf of the respondent in relation to res judicata are correct. A proper analysis of the grounds relied upon by the applicants, both before the Federal Court, ultimately before the High Court and then in the amended application before this court, in my view raise the same cause of action. Whilst there may be different particulars now sought to be relied upon, I am satisfied applying the authorities to which I have referred that this is indeed a case where the principles of res judicata should apply and where the applicants should be barred from pursuing this action. It is clear to me that the principles of res judicata must apply to applications of this kind. It would be inappropriate for this court to seek to reach a decision different from that of Merkel J of the Federal Court who considered the earlier application.
Whilst there may be other issues sought to be raised by way of further particulars, or indeed other grounds, I cannot see in the amended application grounds of a kind which could properly be claimed to constitute a different cause of action, even if I were minded to apply and accept the principles set out by Sackville J at first instance in the BC case at paragraph 36.
Arguments were advanced on behalf of the applicants that this is indeed a different cause of action, and the difference in the cause of action is revealed by reliance upon a transcript of the decision of the RRT which was not placed before the Federal Court in the earlier decision. In my view the reliance upon transcript of the decision of the proceedings before the RRT, though not placed before the Federal Court, does not in any way detract from the conclusion that the two causes of action are the same and that res judicata should apply. This is indeed, in my view, on a proper analysis of the grounds is a case where the applicants are seeking to have what can be described as ‘multiple bites of the cherry’ of judicial review of Refugee Review Tribunal decisions. In my view, that should not be permitted in applications of this kind.
It is further clear to me that applying the principles of law to which
I have referred that issue estoppel would otherwise apply in this instance after a comparative analysis has been undertaken of the grounds sought to be relied upon. Merkel J in his early decision had, in my view, properly considered the grounds then before him, and although reference was made to some grounds not being pursued, that does not in my view detract from the proposition that in the circumstances, having analysed the grounds relied upon both in this court and the Federal Court, it could properly be said that issue estoppel applies. It is relevant to note the decision of Merkel J in Applicants M237/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 95 referred to by the respondent in the submissions before this court, and in particular at paragraph 22 of His Honour's decision where he states the following:
While the issues sought to be raised by the applicants on the present application might have been extended beyond those raised in the first review decision and the first Full Court appeal, the decisions in those cases effectively precluded the applicants from establishing jurisdictional error. A possible exception is a natural justice ground, but I am not satisfied that an arguable case in support of such a ground has been made out.
In the present case I am satisfied that the applicants are simply attempting to avoid the operation of both the doctrine of res judicata and issue estoppel by characterising the particulars in the first ground of review (see paragraph 4) as constituting a different cause of action. In my view, as indicated, a proper analysis of the grounds relied upon does not justify that conclusion, and while issues sought to be raised in the present application appear to be issues either not considered or extending beyond the first decision of the Federal Court, they do not of themselves avoid the operation of issue estoppel, as I am satisfied there is no new cause of action raised and otherwise the issues were dealt with essentially by the Federal Court on a previous occasion. In my view issue estoppel clearly applies as a bar to this application.
In the event that I am in error in relation to my findings concerning res judicata and issue estoppel, I am further satisfied that Anshun estoppel would apply. The applicant seeks to argue that the court has a discretion and has otherwise sought to rely upon a number of factors which should persuade the court to exercise the discretion leading to the result that the court would not find that Anshun estoppel applies in the present case.
In the thorough and detailed submissions made on behalf of the applicants, a number of issues have been raised in the applicant's contentions of fact and law:
It is argued that a measure of latitude is justified in the delay in the application based on a number of grounds. Indeed those issues are relied upon in support of the court exercising a discretion for enlargement of time, though I take them to also be relied upon in relation to the exercise of discretion concerning whether or not issue estoppel or Anshun estoppel should apply.
I have considered all those factors, and in my view none of those factors would lead the court to conclude that it should not apply the principles of res judicata, issue estoppel or Anshun estoppel in the manner described earlier. I am further satisfied that none of the issues raised would encourage this court to find there are special circumstances of a kind which would avoid the operation of Anshun estoppel, even if the court were incorrect in relation to the operation of the doctrine of res judicata and issue estoppel. The factors include:
·the consequence to the applicants namely a real risk to their life and liberty,
·that the Minister is a respondent by force of statute only and not subject to the pressure of costs and time which often weigh on individuals who are litigants,
·that the applicants have no other redress available to them or no other form to raise complaints,
·that at the time of lodging the application to the High Court the applicant was unrepresented and only recently obtained pro bono assistance, has very poor and limited English,
·the applicant has attempted access to legal avenues available
·that the applicant suffers from a medical disorder claimed to be post‑traumatic stress disorder with depression,
·The substantive application before the Court has merit and is not bound to fail.”
Those factors do not provide any or any proper basis in the current application for the exercise of a discretion in order to find that there are special circumstances which may apply to avoid the operation of Anshun estoppel. I am further satisfied that none of those factors would otherwise lead the court to conclude that it is inappropriate to apply the doctrine of res judicata or issue estoppel. Most of those factors will be applicable in many applications of this kind. The specific medical condition of itself does not provide a basis for the exercise of my discretion in the absence of further detailed medical opinion.
In conclusion I am satisfied that the doctrine of res judicata applies and/or issue estoppel and Anshun estoppel applies in the present application as a bar to the application proceeding further. It follows that the application should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 May 2005
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