Plaintiff S3/2013 v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 89

[2013] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S3 of 2013

B e t w e e n -

PLAINTIFF S3/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 APRIL 2013, AT 10.11 AM

Copyright in the High Court of Australia

PLAINTIFF S3 OF 2013 appeared in person.

HIS HONOUR:   You may be aware that there is a provision of statute law that prevents you being named publicly in these proceedings and I will therefore refer to you, without disrespect, simply as “the plaintiff”.

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Markus, the matter is brought on on your summons today.

MR MARKUS:   That is correct, your Honour.  My client has filed a summons on 25 February this year and I move on that summons and seek to read the affidavit of Louise Bernadette Buchanan, affirmed on 25 February 2013 and filed on the same date, together with the exhibits to that affidavit in support of that summons.

HIS HONOUR:   Thank you.  Has a copy of that document been provided to the plaintiff?

MR MARKUS:   It has been served on the plaintiff, yes.

HIS HONOUR:   Yes.  Madam, you have seen the summons and you have ‑ ‑ ‑

PLAINTIFF S3 OF 2013:   I do not know because they send for me – like it does not – it is not on my name, it is somebody else, so I do not which one they are talking about because this is the ‑ ‑ ‑

HIS HONOUR:   Mr Markus, could you please show the plaintiff the affidavit?

MR MARKUS:   I think if I can just clarify the confusion, your Honour.  The plaintiff is looking at the bundle of authorities that we have served on her and she is concerned that the judgments in that bundle do not relate to her.  I am just trying to explain to her ‑ ‑ ‑

HIS HONOUR:   Take a moment to do that.

MR MARKUS:   Thank you.  Your Honour, the plaintiff does not have with her the summons and the affidavit; I will just obtain a copy so that we can provide her with a copy.  I am also just providing her with a copy of our written submissions, if your Honour pleases.

HIS HONOUR:   They have been previously filed and served?

MR MARKUS:   They have been filed and served.  I have an affidavit of service if your Honour wishes to ‑ ‑ ‑

HIS HONOUR:   I do not think that is necessary.

MR MARKUS:   Thank you.

HIS HONOUR:   Thank you.  Madam, you are aware that the Minister for Immigration and Citizenship is seeking today to have me make orders dismissing your application in this Court and the Minister is seeking to place before me the evidence contained in the affidavit of Louise Buchanan of 25 February, a copy of which you have just been given.  Do you have any objection to me receiving that affidavit as evidence?

PLAINTIFF S3 OF 2013:   Sir, I find it difficult sometimes to hear everything you are talking because I am not – with the accent and everything.  As I said, I will need the interpreter so I can understand everything you say.

HIS HONOUR:   All right.  The affidavit is plainly admissible and I admit it.  Mr Markus, I have read your written submissions.  Do you wish to add anything?

MR MARKUS:   Not unless your Honour wishes to hear from me.

HIS HONOUR:   Thank you.  Madam, you can remain seated if that is more comfortable.  Is there anything you wish to say to me this morning in response to the application that the Minister is now making?

PLAINTIFF S3:   There is nothing I can say much, but I was not happy with the judgment because the judgment is…..New Zealand.  The things that I have said in New Zealand, it was because of ‑ I wanted to enter that time because of the problem I have, so I just said those things.  When I went to Tribunal the member who was interviewing me, he even said when I wanted to provide him with some more documents he told me it was even unnecessary because already judgment from what he was having, so he did not give me a chance.  Even when he say so, I just felt as if it was unnecessary for me to provide anything to prove myself on my case, so there is nothing I can do ‑ ‑ ‑

HIS HONOUR:   Thank you.  Is there anything you wish to add?  Thank you.

This proceeding was commenced by an application for an order to show cause in the original jurisdiction of the High Court under section 75(v) of the Constitution. The application for an order to show cause seeks a writ of prohibition directed to the Minister for Immigration and Citizenship as first defendant and writs of certiorari and mandamus directed to the Refugee Review Tribunal as second defendant.

Those writs are sought on two grounds.  One ground is that the Refugee Review Tribunal, in affirming the decision of a delegate of the Minister to refuse the plaintiff a protection visa, denied the plaintiff procedural fairness by failing to consider the best interests of her child as a primary consideration.  The other ground is an unparticularised claim that the Refugee Review Tribunal, in affirming the same decision, misinterpreted and misapplied provisions of the Migration Act 1958 (Cth) so as constructively to have failed to exercise its statutory jurisdiction to review the decision of the delegate.

The Minister by summons seeks an order that the proceeding be dismissed on alternative grounds: that it is an abuse of process; that it was commenced in breach of section 486D(3) of the Migration Act; and that it does not disclose an arguable case for the relief claimed. 

The evidence establishes that the plaintiff is a national of South Africa who lived for a time with her husband in Ethiopia.  After entering Australia she applied for a protection visa.  She claimed to fear persecution in South Africa and Ethiopia for reasons which included her political opposition to the African National Congress Party, her being a victim of rape, her having a child of the rape and her having had children by a foreigner.  She claimed that there was a real risk that if removed from Australia she would suffer significant harm.  A delegate of the Minister refused the plaintiff’s application.  The decision of the Refugee Review Tribunal affirming that decision was based mainly on adverse findings in relation to the plaintiff’s credibility.

The plaintiff first applied to the Federal Magistrates Court for judicial review of the decision of the Refugee Review Tribunal in the exercise of the jurisdiction conferred by s 476 of the Migration Act.  The application was heard by Emmett FM and dismissed on its merits.  The plaintiff then appealed from the decision of the Federal Magistrates Court to the Federal Court of Australia.  That appeal was heard by Justice Griffiths and was dismissed in a reserved judgment.

This proceeding, for judicial review of the same underlying decision of the Refugee Review Tribunal, was commenced soon after the dismissal of the appeal by the Federal Court from the decision of the Federal Magistrates Court. 

Before the Federal Magistrates Court the plaintiff relied on a range of grounds of review which included particularised allegations of denial of procedural fairness on the part of the Refugee Review Tribunal and constructive failure by it to exercise jurisdiction.  In her appeal to the Federal Court the plaintiff was granted leave to raise additional, overlapping grounds of review specifically to the effect that the Tribunal had denied her procedural fairness by failing to consider the best interests of her child as a primary consideration.  The additional grounds were amongst those Griffiths J considered on their merits in dismissing the appeal.

Of the two grounds on which the plaintiff seeks to rely in this proceeding, it is apparent that the first has been determined adversely to her on the merits by the decision of Griffiths J in the Federal Court and that the second ground at least could have been raised in the Federal Magistrates Court and with leave could have been raised in the Federal Court, even if it had not been raised in the Federal Magistrates Court.

In University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; [1985] HCA 28 the High Court unanimously stated:

“Except in the most exceptioinal circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

In D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17 [34]; [2005] HCA 12, the joint judgment of four members of the High Court described “[a] central and pervading tenet of the judicial system”: “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. Their Honours continued:

“The tenet . . . finds reflection in the doctrines of res judicata and issue estoppel.  Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding.  It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in later proceeding could have been raised in an earlier proceeding.”

It is unnecessary for the purposes of considering the first of the grounds on which the Minister seeks an order that the proceeding be dismissed to consider the extent to which the doctrines of res judicata and issue estoppel apply to proceedings in the original jurisdiction of the High Court under s 75(v) of the Constitution. It is sufficient to recognise the application to that original jurisdiction of the general principle, stated in the joint judgment of three members of the High Court in Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77, that:

“proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

The same principle was, in substance, subsequently expressed in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 by Lord Bingham of Cornhill in terms quoted with approval by French CJ in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 194 [34]; [2009] HCA 27. Lord Bingham of Cornhill said:

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to an abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”

The jurisdiction statutorily conferred on the Federal Magistrates Court by s 476 of the Migration Act to review a decision of the Refugee Review Tribunal is relevantly co‑extensive with the jurisdiction of the High Court to review a decision of that Tribunal under s 75(v) of the Constitution. The exercise of statutorily conferred jurisdiction of that nature is an exercise of the judicial power of the Commonwealth to quell a controversy about existing legal rights and legal duties. To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that Court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution.

The plaintiff’s application in the original jurisdiction of the High Court seeks to re‑litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court.  Her application is an abuse of process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules. 

It is unnecessary to consider the consequences of the plaintiff’s non‑compliance with s 486D(3) of the Migration Act.  It is also unnecessary to deal with the remaining ground of the summons. 

Pursuant to r 27.09.4(c) I order that the plaintiff’s application for an order to show cause be dismissed.

MR MARKUS:   Your Honour, my client seeks a costs order in relation to this matter. 

HIS HONOUR:   With costs.

MR MARKUS:   If the Court pleases.

HIS HONOUR:   Thank you.

AT 10.28 AM THE MATTER WAS CONCLUDED