S286 of 2003 v Minister for Immigration - [2006] FMCA 1125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S286 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1125

MIGRATION – Review of decision by Refugee Review Tribunal – summary dismissal – prior decision of Federal Magistrates Court dismissing proceeding on basis decision of Refugee Review Tribunal not affected by jurisdictional error – res judicata – whether new ground raised – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 474; 474(1); 474(2); 486A

Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228
R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 498
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242

Applicant:

APPLICANT S286 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2337 of 2005

Judgment of:

Emmett FM

Hearing date:

25 July 2006

Date of last submission:

25 July 2006

Delivered at:

Sydney

Delivered on:

11 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr Zipser

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms A. Nesbitt, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2337 of 2005

APPLICANT S286 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for summary dismissal of an amended application, filed by consent at the hearing before this Court. The applicant first sought constitutional writ relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 29 May 2002, by filing draft orders nisi in the High Court of Australia on 12 June 2003. On 20 August 2003, Heydon J remitted the matter to the Federal Court of Australia. On 5 August 2005, the Federal Court transferred the matter to this Court for hearing.
The First Respondent read the affidavit of Jennifer Bautista sworn

19 July 2006 which annexed prior proceedings of the Applicant in various courts, including an application to the Federal Court of Australia which was later discontinued after the Applicant filed draft orders nisi in the High Court of Australia on 12 June 2003.
Ms Bautista’s affidavit disclosed that, on 29 November 2002, Barnes FM dismissed an application by the Applicant for judicial review, pursuant to s.39B of the Judiciary Act 1903 (Cth), of the Tribunal’s decision dated 29 May 2002 affirming a decision of a delegate of the First Respondent to refuse a protection visa to the Applicant. Barnes FM expressed the grounds relied upon by the Applicant before her as “that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction.” The application before Barnes FM was not tendered in evidence before this Court. However, it was not contended by the Applicant that the application was other than in the general terms identified by Barnes FM in her judgment.
Barnes FM noted that the Applicant was self represented before her and, for those reasons, considered whether the Tribunal’s reasons for decision and other material before the Court revealed any reviewable error.
Barnes FM found that there was nothing on the material before her “from which bias or lack of good faith on the part of the Tribunal could be inferred.” Barnes FM also found that the Tribunal had not failed to take into account any relevant consideration and queried in such an event whether or not such an error would be an error within jurisdiction. Barnes FM also found that the Tribunal had complied with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Act”).
Barnes FM’s decision was prior to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”), where the High Court of Australia concluded that a decision flawed by reason of a failure to comply with the principles of natural justice, is not a privative clause decision within s.474(2) of the Act and that the time limits for seeking judicial review pursuant to s.486A of the Act would not apply to a decision where there has been a jurisdictional error.
Barnes FM concluded that the Tribunal’s decision is a privative clause decision within the meaning of s.474(2) of the Act and was therefore subject to the limitations on judicial review identified in s.474(1) of the Act.
Counsel for the Applicant contended that, at the time of Barnes FM’s decision, s.474(1) of the Act was construed by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (“NAAV”) as requiring that the 3 conditions identified in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 (“Hickman”) were met, namely:
(i)That the decision is a bona fide attempt to exercise the power conferred on the decision maker;
(ii)That the decision related to the subject matter of the legislation;
(iii)That the decision was reasonably capable of reference to the power conferred on the decision maker.
The amended application before this Court is in the following terms:
Ground 1 – “The Tribunal contravened s 424A in two respects. First, the Tribunal relied on information contained in a statement of the applicant’s father without putting the information to the applicant in a s 424A letter. Second, the Tribunal relied on information the applicant provided to the Department without putting the information to the applicant in a s 424A letter. In the circumstances, there was a contravention of s 424A and jurisdictional error.”
Ground 2 – “The Tribunal contravened the principle stated in Sellamuthu v MIMA (1999) 909 FCA 287. Specifically, in the circumstances of the case the Tribunal failed to consider:
whether the objective circumstantial evidence was sufficient to satisfy the Tribunal that the applicant has been mistreated by the Sri Lankan authorities and might therefore fear more mistreatment; and
even if the applicant had suffered no harm in the past, what would be his future on account of his race and/or the possible imputation to him of a political opinion supporting the LTTE.”
Ground 3 – “The Tribunal contravened the principle explained in MIMA v Rajalingam (1999) 93 FCR 220 at [55]-[67]. Specifically, some findings by the Tribunal indicated that, in the Tribunal’s opinion, “it [was] only slightly more probable than not that an alleged relevant event has not occurred”. In these circumstances, the Tribunal should have considered the possibility that its findings of fact might not have been correct. Its failure to do so gives rise to jurisdictional error.”
Counsel for the Applicant submitted that, since Plaintiff S157/2002, the question of jurisdictional error is no longer confined to the Hickman conditions only. Counsel for the Applicant contended that at the date of Barnes FM’s decision, she was bound by NAAV, which stated that s.474 of the Act required satisfaction of the Hickman conditions.
Counsel for the Applicant referred to Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722, per Lindgren J, where His Honour considered the operation of res judicata, issue estoppel and Anshun estoppel. In particular, for res judicata to operate, there must have been a final judgment within jurisdiction by a judicial tribunal based on the establishment, or failure to establish, a cause of action; the parties to the two proceedings must be the same; and the later proceeding must raise the same cause of action. Lindgren J referred to Sackville J in BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 where Sackville J held that, even if res judicata did not apply because the ground relied on in the second proceeding had not been relied on in the earlier proceeding, Anshun estoppel would defeat the Applicant unless special circumstances applied as to why Anshun estoppel should not have that effect. The Full Court of the Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 observed at [38][FMCoA1], in relation to special circumstances in the application of Anshun estoppel, that:
“What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle.”
Counsel for the First Respondent contended that there is a res judicata between the parties in respect of the Applicant’s cause of action that the decision of the Tribunal was a privative clause decision. Counsel for the First Respondent submitted that the construction of the privative clause in s.474 of the Act at the time is irrelevant as to whether or not there was a res judicata or issue estoppel or Anshun estoppel between the parties as to that matter.
The fact that different constructions have been placed on the relevant parts of the statute since Barnes FM heard the Applicant’s application does not mean that the Applicant in the proceeding before this Court did not have the opportunity to raise those arguments. There is no evidence to suggest that the Applicant did not have that opportunity.
The only issue between the parties, who are the same in this proceeding as in the earlier proceeding, was whether or not the decision of the Tribunal was affected by jurisdictional error and therefore was not a privative clause decision. Barnes FM concluded that the Tribunal’s decision was not affected by jurisdictional error and therefore was a privative clause decision. That cause of action has been determined and there is a res judicata between the parties as to that cause of action.
However, if, in the circumstances, no res judicata arises between the parties, the question that might arise is whether, in the event, the Applicant would be estopped by the Anshun principle from raising the grounds in its amended application in this proceeding.
Counsel for the First Respondent submitted that the Applicant had not provided any evidence that he had refrained from raising any particular ground before Barnes FM because of the state of the law at that time with respect to the effect of s.474 of the Act. Counsel for the First Respondent submitted that this Court ought readily to infer that the Applicant, being unrepresented, would not have intended to refrain from arguing a ground simply because of the manner in which s.474 had been construed by authorities at that time.
Counsel for the First Respondent contended that, because of the general nature of the grounds before Barnes FM, namely “that the Tribunal exceeded its jurisdiction and constructively failed to exercise its discretion”, the grounds in the amended application before this Court were readily encompassed within those terms. Moreover, Barnes FM specifically considered and rejected any s.424A issue. I agree. Accordingly, ground 1 of the amended application which raises s.424A of the Act was considered by Barnes FM and rejected. Grounds 2 and 3 do not disclose any ground not covered by the general terms of the grounds before Barnes FM.
Counsel for the Applicant contended that special circumstances existed in that the Applicant was unrepresented before Barnes FM for reasons referred to in the next paragraph and therefore any Anshun estoppel that may be held to apply is defeated by that special circumstance.
Counsel for the Applicant read an affidavit, affirmed by the Applicant on 17 July 2006, in which the Applicant said that he discontinued his appeal from Barnes FM’s decision in the Federal Court because he had wanted to engage a lawyer and could not afford a lawyer and that his uncle told him that he could apply to the High Court and might win his case in the High Court. The Applicant stated that he withdrew from the Federal Court because he now had a case in the High Court and that he could not afford a lawyer to represent him and there was little point attending the hearing before the Federal Court without a lawyer. The Applicant also deposed that, in 2005, his brother arrived in Australia and has paid for his lawyer in the present proceeding.
However, since it would clearly have been reasonable to have raised a question of jurisdictional error based on the grounds of the amended application in the proceeding before Barnes FM, it is unnecessary to consider further the Applicant’s submissions of special circumstances.
Accordingly, the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 11 August 2006

[FMCoA1]Sylvia – I added the reference paragraph in