SZHMO v Minister for Immigration
[2006] FMCA 728
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 728 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – Refugee Review Tribunal decision previously reviewed by the Federal Court in proceedings governed by s.476 of the Migration Act 1958 (Cth) as it stood before the “privative clause” changes of October 2001. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.10 Federal Magistrates Court Act 1999 (Cth), ss.14, 15 Judiciary Act 1903 (Cth), ss.39B, 75 Migration Act 1958 (Cth), ss.91X, 476, 477A, 483A Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641 Applicant S635 of 2003 v Minister for Immigration [2005] FCAFC 65 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration v Yusuf (2001) CLR 323 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219 Re Minister for Immigration; Ex Parte Eshetu (1999) 197 CLR 611 |
| Applicant: | SZHMO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3194 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Aspinall |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
That the application filed on 2 November 2005 be dismissed pursuant to r.13.10(b) and/or r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) on the grounds that the proceedings are vexatious and/or an abuse of process.
Further, or in the alternative, an order that the applicant is barred by res judicata and/or is estopped from bringing these proceedings.
That the application filed on 2 November 2005 be dismissed.
That no further application for review of the decision of the Refugee Review Tribunal handed down on 28 March 2000, reference N98/23595, or for review of the decision of the delegate of the first respondent dated 20 May 1998, or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3194 of 2005
| SZHMO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 November 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 9 March 2000 and handed down on 28 March 2000, affirming a decision of a delegate of the first respondent made on 20 May 1998, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
By an application filed on 6 December 2005, the first respondent seeks an order that the applicant’s application be dismissed pursuant to jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth). The first respondent seeks:
a)An order that the application filed on 2 November 2005 be dismissed pursuant to rr.13.10(b) and/or 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) on the grounds that the proceedings are vexatious and/or an abuse of process;
b)Further, or in the alternative, an order that the applicant is barred by res judicata and/or is estopped from bringing these proceedings;
c)An order that these proceedings be otherwise stayed or dismissed;
d)An order that no further application for review of the decision of the Refugee Review Tribunal handed down on 28 March 2000, reference N98/23595, or for review of the decision of the delegate of the first respondent dated 20 May 1998, or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court; and
e)Such further or other orders as the Court sees fit.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZHMO”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
For the purposes of this application, the first respondent tendered and applied for the affidavit of David Anthony Sim, solicitor, sworn on
6 December 2005 (“affidavit of Mr Sim”), to be admitted into evidence.
Background
The Tribunal decision of Mr L Hardy, reference N98/23595, records the following background information. The applicant is a national of Burma (Myanmar) who arrived in Australia on 25 December 1997. On 6 February 1998, the applicant lodged an application for a Protection (Class XA) visa with the Department under the Act. On 20 May 1998, a delegate of the Minister refused to grant a protection visa and on 1 June 1998, the applicant sought review by the Tribunal of the delegate’s decision.(affidavit of Mr Sim, p.2)
The applicant claims fear of persecution in Burma for the Convention-related reason of “political opinion”. He claims to have come to the attention of authorities in Burma because of his support of the pro-democracy movement there. He also claims to have been detained on numerous occasions.(affidavit of Mr Sim, p.4)
Previous Proceedings
Mr Aspinall, counsel for the applicant, provided in his written submissions a convenient summary of previous proceedings filed by the applicant:
3.The affidavit of David Anthony Sim sworn 6 December 2005, outlines the history of a previous application for judicial review filed on 29 April 2000 and ultimately dismissed by Wilcox J on 1 August 2000 ([SZHMO] v Minister for Immigration & Multicultural Affairs) (“the previous proceedings”).
4. In that decision at [2] – [4], Wilcox J noted:
The Tribunal rejected [SZHMO’s] claim for refugee status, basically because the Tribunal member was not satisfied as to the credibility of [SZHMO]…But the Tribunal's view of the facts is not a matter for this court. The Tribunal has the task of finding the facts and, subject to any ground of review falling within s476 of the Migration Act 1958, that is the end of the matter.
Ms Winfield, who appears for the applicant, relies on s476(1)(e) of the Act (error of law) and s476(1)(f)(actual bias). She dealt with the provisions in an overlapping manner, because she relied, in respect of both grounds, upon the transcript of the hearing before the Tribunal. In my opinion, neither ground is made out.
5.At the time of the application before Wilcox J, section 476 of the Migration Act 1958 (Cth)(“the Act”) relevantly stated:
(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
The New Application for Review of the Tribunal Decision
On 2 November 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1. The Decision involves jurisdictional error in that:
Particulars
(i) The Tribunal’s findings that:
1. “It is highly suspicious of his claims…due to the poor quality of his evidence about…the circumstances surrounding his departure from Burma on a valid passport with a visa issued only with certified clearance from the police…”
2. “The Tribunal accepts that the Applicant prefers democracy as a way forward in Burma and that he has attended certain activities of the CDB (Committee for Democracy in Burma) but he appears to have devoted his time and attention to only a few, with an apparent preference for photo opportunities…”
3. “The Tribunal notes that he does not claim to have had any involvement in the Spetember 1999 protest in Canberra…”
were unreasonable, illogical and not based upon findings or inferences of fact supported by logical grounds.
(ii) The Tribunal failed to afford the Applicant procedural fairness by failing to call a witness and failing to consider relevant material, thereby coming to an erroneous conclusion about his participation in anti-Burmese government activities in Australia.
1. The Tribunal erred at the outset by stating that “the Applicant brought forward no witnesses” [at the hearing], whereas the Transcript of the hearing conclusively indicates that the Tribunal was aware of the presence of a witness who was a member of the CDB (Committee for Democracy in Burma) and stated “Just to be on the safe side, we might ask the witness to wait outside in case we need to call him in and ask for more information later. This witness was never called.
2. This failure to afford procedural fairness led to the erroneous conclusion that “he has attended certain activitites of the CDB but he appears to have devoted his time and attention to only a few, with an apparent preference for photo opportunities rather than the harder business of party room processes…or even basic administration. The Tribunal considered his evidence, but even if he were recognised by Burmese officials from the Burmese Embassy at the demonstrations he attended, these appearances were very few and far between”.
3. The Tribunal also failed to afford procedural fairness by failing to consider relevant material put at the hearing by the Applicant including his statements that “photographs have not been taken at every meeting I attended” and “Other demonstrations I’ve attended but no photographs were taken”.
(iii) By reason of the matters set out above, the Tribunal failed to properly consider the Applicant’s claim that he had a well-founded fear of persecution for a Convention ground.
(iv) By reason of the matters set out above, the Tribunal could notn have been satisfied that it could reasonably impugn all the Applicant’s material claims.
2. Such further or other grounds as may be notified.
Submissions
Mr Smith, counsel for the respondents in these proceedings and the applicant in this application, submits that the applicant in these proceedings seeks to raise matters which ought reasonably to have been raised when he brought proceedings in the Federal Court in 2000. Those proceedings were determined by His Honour Wilcox J in that Court in August 2000: [SZHMO] v Minister for Immigration. Mr Smith submits that for that reason, in the absence of special circumstances, the Court ought to find that the applicant is estopped from now moving the Court for orders in the nature of a new judicial review. Alternatively the matter should be dismissed as an abuse of process.
The factual matters simply state that the Tribunal affirmed the decision of a delegate of the first respondent refusing the applicant a protection visa. The applicant then applied to the Federal Court for a review of the Tribunal decision under the then Part 8 of the Act, which included grounds under s.476(1). The applicant was represented by counsel before Wilcox J which was dismissed by way of an ex tempore judgment. His Honour was not satisfied that any of the grounds were made out and that there was no ground for the Tribunal to reconsider its decision.
Importantly, those provisions of Part 8 of the Act, and particularly s.476(1), were effectively repealed on 2 October 2001. Consequently, the powers of the Courts to review a tribunal’s decision have changed since [SZHMO] v Minister for Immigration. However, the underlying facts and circumstances before the Federal Court are precisely the same as those before this Court.
Mr Smith submits that this Court should apply principles established in the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 599:
…a party, whether plaintiff or defendant, was estopped from asserting a matter in a new action by reason of his failure to plead that matter as a defence in an earlier action.
There is an exception to that rule, however, in that in special circumstances a party may be permitted to raise in a subsequent proceeding a contention that it was reasonable not to have raised in an earlier proceeding: Wong v Minister for Immigration (2004) 146 FCR 10; BC v Minister for Immigration [2002] FCAFC 221. What is sufficient to constitute ‘special circumstances’ is not fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court: BC v Minister for Immigration [2001] FCA 1669 per Sackville J at [22]. His Honour, referring to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”), stated:
Their Honours pointed out (at 603) [Henderson v Henderson (1843) 3 Hare 100; 67 ER 313] that it had generally been accepted that a party is estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In their view, the likelihood that the omission to plead a particular matter as a defence will contribute to the existence of "conflicting judgments" is an important factor to take into account in deciding whether the omission can found an estoppel against the assertion of the same matter as the foundation for a cause of action in the second proceeding.
Mr Aspinall, in his written submissions, submits that the passage from [SZHMO] v Minister for Immigration at [8] above clearly states that the application before Wilcox J was brought on two separate grounds, that being s.476(1)(e) and s.476(1)(f) of the Act. In that Federal Court application, no application was made for judicial review of the Tribunal decision, on the basis of the applicants new grounds which are set out at [9] above. Mr Aspinall submits that the fact that these grounds were omitted is not surprising since, at the time the application came before Wilcox J, s.476(2)(a) and (b) of the Act prevented an application of the type now made to this Court from being made. However, from 2 October 2001, s.476 of the Act was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which removed the fetters briefly imposed by s.476(2) of the Act. Therefore Mr Aspinall submits that at the time the current application was brought in this court, an application on either or both of the previously prohibited grounds was permissible.
Mr Aspinall refers to the written submissions filed by Mr Smith, which argue that it was unreasonable for the applicant in these proceedings not to have raised the current ground in 2000, since the subsequent authorities of Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 and Minister for Immigration v Yusuf (2001) CLR 323 (“Yusuf”) demonstrate that effect of s.476(2) of the Act might have avoided if a claim was framed differently. Mr Aspinall submits that this argument is flawed in two ways. First, the question of whether or not it was unreasonable not to make the claim needs to be determined, having regard to the state of the law as at 2000. Mr Aspinall submits that this is preferable to asking the question based on subsequent developments in the law, such as Yusuf which was decided in 2001 and Re Minister for Immigration; Ex parte Applicant S20/2002 which was decided three years later.
Mr Aspinall submits that as the case law stood in 2000, it was far from unreasonable to admit the claims brought now. Further that a convenient statement of the prevailing attitudes in relation to s.476 of the Act in 2001 is set out in Gamaethige v Minister for Immigration [2001] FCA 565 (“Gamaethige”) at [15] – [16] per Hill J:
15. Whatever developments in administrative law may take place in other jurisdictions, or for that matter outside the migration area, in the category of reviewable decisions under the Act the statutory grounds of review in s 476 (1), subject to the exclusions in s 476 (2), provide the only grounds of review available. They constitute a code. While I am prepared to accept that the common law rules of administrative law may well expand or may well indeed have already expanded, they cannot operate to expand the statutory grounds of review under the Act beyond their ordinary reach.
16. It is for this reason that I am of the view that it is not presently a ground of review under the Act that a decision of the Tribunal is the product of illogical reasoning. I should say that I do agree that it is difficult to see how the Tribunal could have reached the conclusion it did on rational grounds but like the learned primary Judge I do not think that the lack of rationality in the Tribunal's decision provides a relevant ground of review not excluded by s 476 (2) of the Act.
Mr Aspinall submits that in the light of the clear wording of s.476(2) of the Act as it stood in 2000 and the contemporaneous case law, it could not have been unreasonable not to have raised the current grounds in the previous proceedings. In respect of the question of whether or not, through different wording, the current grounds might circumvent the barriers erected by s.476(2) of the Act as it stood in April 2000, Mr Aspinall submits that this is irrelevant since the question before the Court is whether it was unreasonable to admit the current ground as framed in 2000. However, even assuming that it was unreasonable of the applicant not to raise the current ground in the previous proceedings, Mr Aspinall submits that this is clearly a case in which special circumstances mitigate the Anshun principle: Applicants M16 of 2004 v Minister for Immigration [2005] FCA 1641 at [67] per Gray J:
It is clear from this history that the applicants have not raised the issue of denial of procedural fairness in any previous proceeding. It is not surprising that they did not raise this issue in proceeding no. V789 of 2000, because s 476 (2)(a) of the Migration Act then provided that ‘a breach of the rules of natural justice’ in connection with the making of a decision was not a ground upon which an application could be made under s 476 (1). Although denial of procedural fairness could have been raised in proceeding no. M110 of 2001 in this Court, it was not raised. In neither proceeding did the material advert to what the first applicant had not said, but might have said, in relation to the July 1995 incident. There has therefore been no judicial determination of the question whether the Tribunal denied the applicants procedural fairness by failing to give the first applicant a proper opportunity to tell her full story. There can therefore be no res judicata estoppel, or issue estoppel, in relation to that point. I respectfully adopt what Sackville J said at [36] in BC, and regard the ground of denial of procedural fairness as founding a separate legal claim for relief, and therefore as constituting a separate cause of action from those which were agitated by the applicants in the earlier proceedings. It is a claim distinct from those raised in the earlier proceedings. The distinction is evidenced by the fact that a denial of procedural fairness could have been raised in the High Court, even though it could not have been raised in this Court, when Pt VIII of the Migration Act was in its earlier form.
Mr Smith submits that the application filed in these proceedings on
2 November 2005 contains two grounds which effectively raise three issues:a)the “unreasonableness argument” which claims that the Tribunal finding were unreasonable, illogical and not based upon findings or inference of fact supported by logical grounds;
b)denial of “procedural fairness” by failing to call a witness; and
c)denial of “procedural fairness” by failing to consider relevant material.
Mr Aspinall did not cavil with the division of the grounds in this manner.
Mr Smith submits that in order to reach a decision in respect of the Anshun issue, the question to be asked is: was it reasonable to expect the applicant to have raised these grounds in the Federal Court, or, at least, would a new judgment upon these grounds conflict with the judgment of Wilcox J.
In respect of the unreasonableness issue, Mr Smith submits that the question to be asked is: should it have been rejected by the Federal Court by virtue of the operation of s.476(2)(b) of the Act:
(2)The following are not grounds upon which an application may be made under subsection (1):
(a) …
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
When the matter was heard by Wilcox J in August 2000 there was some conflict amongst the authorities as to the extent of the prohibition in s.476(2)(b). The High Court had considered whether unreasonableness could be a ground of review, particularly under Part 8 of the Act as it applied at that time. Justice Gummow in Re Minister for Immigration; Ex Parte Eshetu (1999) 197 CLR 611 (“Eshetu”) at [154] discussed the problems which arose out of the prohibition in s.476(2), which did not apply to applications in the High Court exercising original jurisdiction. His Honour noted in that case:
There is a further aspect of this procedural bifurcation which should be noted. The application to this Court under s 75(v) of the Constitution was instituted on the footing that the effect of s 476(2)(b) and s 485(1) of the Act was to deny to the Federal Court the jurisdiction it otherwise would have had under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") in respect of a "Wednesbury unreasonableness" ground of review. However, where the question is whether the Minister was obliged by s 65 to grant a protection visa upon satisfaction that the applicant met the criterion under s36 (2) for a protection visa, "Wednesbury unreasonableness" does not enter the picture. Rather, the question would appear to be whether the Minister did not have jurisdiction to make the decision (s 476(1)(b)), the decision was not authorised by the Act (s 476(1)(c)), the decision involved an error of law (s 476(1)(e)) or there was no evidence or other material to justify the making of the decision (s 476(1)(g) as amplified by s 476(4)). The exclusion by s 476(2)(b) of "Wednesbury unreasonableness" would not be material. Upon that footing, the Federal Court would have jurisdiction conferred by both s 486 of the Act and s 39B of the Judiciary Act, concurrently with that conferred upon this Court by s 75 (v) of the Constitution.
The above statement by Gummow J was not supported by the other Justices of the Court at that time. However, in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 at [34] that passage by Gummow J in Eshetu was adopted by the majority of the High Court:
Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker[44]. But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent. [Footnote 44 refers to a line of authority including Re Minister for Immigration; Ex Parte Eshetu (1999) 197 CLR 611 at 650-657]
Mr Smith submits that as at August 2000, despite conflicting first instance decisions of the Federal Court, a decision of the High Court left open the possibility of arguing jurisdictional error by reason of unreasonableness. This was recognised by the Full Federal Court in S635 of 2003 v Minister for Immigration [2005] FCAFC 65 at [61] per Kenny J (obiter dicta):
There was not any bar to the appellant raising the ground of unreasonableness before Madgwick J. The matter had been discussed in Bond and Eshetu. There was not, at the time his Honour heard the matter, any appellate determination in this Court having the effect of barring such a claim. Gamaethige was not determined for some months afterwards…
Mr Smith submits that as at August 2000, it was available for the applicant to argue that the Tribunal had committed jurisdictional error, made an error of law or made a decision which was not authorised by the Act. It had committed one of the errors foreshadowed in s.476(1) by reason of unreasonableness. There being no bar to those arguments and in the circumstances where the applicant was represented by counsel, Mr Smith submits that it was reasonable to expect this ground to have been raised at the time. Mr Smith argues that no special circumstances exist such that the Court should now exercise its discretion to allow the applicant to raise this ground. Since no evidence has been put forward to establish special circumstances, the applicant should be estopped from raising the first ground in the application.
Mr Aspinall, contends that the first argument before the Court is whether or not the claims, as now grounded, could have been brought in 2000 before His Honour Wilcox J. Mr Aspinall argues that in respect of the first ground, it is necessary to place oneself in the shoes of the applicant and his legal representative at the time the application was brought before Wilcox J. Mr Aspinall disagrees with the argument submitted by Mr Smith that the authorities at that time were confused. Instead, there was an absence of authorities because they were not authorities in the technical sense but rather the beginnings of ideas that had not developed into principles as now recognised. Mr Aspinall argues that in 2000, one did not have the benefit of what subsequently transpired to resolve a question of unreasonableness. He argues that it was not unreasonable of the applicant’s representative in 2000 to frame the claim as they did having regard to s.476(2).Neither was it unreasonable to remit those claims because had they been brought in the current form they would have failed because of s.476(1)(b).
Mr Aspinall submits that it was not clear until Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30 that illogicality could form a basis for jurisdictional error. Mr Aspinall submits the exact arguments which were later developed in Re Minister for Immigration; Ex parte Applicant S20/2002 was put before Stone J in Gamaethige at [91]:
As well as referring to Eshetu, the footnote refers, without distinction, to a number of other cases including R v Connell; Ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430, 432, Foley v Padley (1984) 154 CLR 349 at 369-377 and Buck v Bavone (1976) 135 CLR 110 at 118-119. These references indicate that the footnote is an endorsement of Gummow J's analysis of jurisdictional error. However, taken in context, there is no reason to read the footnote as endorsing all aspects of Gummow J's views in Eshetu. In particular, the reference would need to be a much more specific to be read as endorsing the view that s 476(2)(b) relates only to the review of discretionary powers - that is, only to review on the basis of Wednesbury unreasonableness.
In the same decision, Hill J stated at [9]-[10]:
9. The precise relationship between natural justice, error of law and unreasonableness is far from clear. Wednesbury unreasonableness would seem to be limited to discretionary powers, cf per Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650.
10. Whether or not Wednesbury unreasonableness is limited in the way suggested by Gummow J, unreasonableness is only a ground of review if the decision is so unreasonable that it could not be arrived at by a reasonable decision-maker. That would be so if the decision is one which is irrational or illogical, provided that it can be said that it is not one that could reasonably be arrived at by any reasonable decision-making process. Irrationality or illogicality seem hardly consonant with that process.
Mr Aspinall submits that a the majority view in Gamaethige was that it was unclear as to what Eshetu meant and that case was in fact determined contrary to Eshetu. Mr Aspinall also challenges Mr Smith’s reliance, on S635 of 2003 v Minister for Immigration because Her Honour’s comments were obiter. Also that they were made by Her Honour with the benefit of hindsight and is likely to confuse the position as now developed and with the position which existed in 2000.
The second issue is procedural fairness or natural justice. Mr Smith contends that had the ground been expressed in those terms in 2000, then the Court would not have made an order on the basis that there was a denial of procedural fairness because of the exclusion found in s.476(2)(a). At that time, this was not a ground upon which an application would be made. However, the same facts and circumstances which were before Wilcox J may have given rise to another ground under the then s.476(1)(a). Mr Smith refers to the principles of Anshun as discussed in BC v Minister for Immigration when casting a ground in a different way. What is important is whether or not there is a conflicting judgment on the same facts and circumstances. The current issue is that the Tribunal erred or denied the applicant procedural fairness by failing to call a witness. Those are the factual circumstances upon which this claim is based and may give rise to a claim that the Tribunal failed to observe the procedure required by the Act in connection with its review. The Tribunal was obliged under s.426(3) to consider whether it would carry out a request by the applicant to obtain evidence from a witness.
The new claim in respect of a failure to call a witness, infers that the Tribunal did not consider that request. If so, the Tribunal may have fallen into one of the errors set out in the then s.476(1)(a). Mr Smith submits that even though the claim is now cast in terms of denial of procedural fairness, it necessarily arises out of the same facts and circumstances that were before Wilcox J as discussed by Sackville J in BC v Minister for Immigration. When that is the case, a judgment, even though cast in a different way and with a different cause of action will give rise to an inconsistent judgment. Mr Smith argues that estoppel arises for that reason.
Mr Aspinall submits that procedural fairness or natural justice as a basis for jurisdictional error was not developed until Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 176 ALR 219 (“Aala”). That decision was handed down in November 2002, and over two months after the decision of Wilcox J. In Aala at [38], Gaudron and Gummow JJ stated:
…In Abebe v Commonwealth, Gaudron J left open the question whether procedural fairness is to be seen as a common law duty or an implication from statute. Her Honour referred to the support for the first view by Mason J in Kioa v West and that for the second view by Brennan J in the same case.
Their Honours accepted the proposition that s.75(v) of the Constitution develops with time: Aala at [41]. Justices Hayne and Callinan agreed with the views expressed by Gaudron and Gummow JJ: Aala at [169] and [210]. Mr Aspinall argues that in August 2000, neither Wilcox J nor the applicant’s representative was to know of Aala and it was not unreasonable for them, given that Gaudron J had left the question open in Abebe v Commonwealth of Australia (1999) 197 CLR 510, that such a ground should have been omitted.
Mr Aspinall disagrees with the submission made by Mr Smith that the applicant in 2000 should have cast the procedural fairness issue in terms of the then s.476(1)(a) and no authorities were submitted in support of that proposition. Mr Aspinall challenges Mr Smith’s reliance on Yusuf because it was decided three years later. Further that it was not unreasonable for the applicant’s representatives in 2000 to frame the claim as they did, particularly having regard to s.476(2).
The third issue raised is the denial of procedural fairness for failure to consider relevant material. Mr Smith submits that a Tribunal’s failure to deal with a relevant matter was dealt with in Yusuf. Alternatively, the Tribunal did not have authority to make the decision that it did because it was required under s.476(2)(a) to review the decision. The Tribunal is required to take into account relevant considerations or relevant matters. Mr Smith submits that there can be no question that that could have been raised before Wilcox J and in fact it was, but with two different particulars.These are found in the applicant’s Federal Court application:
The Tribunal member did not properly take into account material available to the Tribunal such as independent evidence (seven examples are given). (affidavit of Mr Sim, p.20)
In the amended application in the Federal Court the same particular is repeated with the same seven examples.(affidavit of Mr Sim, p.29) Both these references in the Federal Court application and amended application relate to information other than information now given in the current application before this Court. Mr Smith submits that there is nothing to suggest that these two particulars fall within the category of ‘special circumstances’ which takes them outside the Anshun principle and for that reason this claim should fail.
Mr Aspinall submits that the question to be resolved in this application is whether or not it was unreasonable for the applicant’s representative to omit the three claims/issues identified at [19] above at the time of the original application before Wilcox J. I am cautioned by Mr Smith against allowing the applicant to bring the grounds as currently framed as this could lead to a decision inconsistent with that of Wilcox J: BC v Minister for Immigration.
Mr Aspinall referred me to a review of BC v Minister for Immigration in Applicants M16 of 2004 v Minister for Immigration at [56] per Gray J:
56.For the purpose of dealing with these submissions, it is necessary to consider four concepts: res judicata, or cause of action estoppel; issue estoppel; estoppel in respect of issues not raised in previous litigation, on the basis that they ought to have been raised, as explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun estoppel’); and abuse of the process of the Court. The principles relevant to the first three of these concepts are set out helpfully in the judgment of Sackville J in BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (2001) 67 ALD 60 at [17] – [27], [29] – [30], [36], [39] and [50]. In BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221, the Full Court dismissed an appeal from Sackville J’s judgment. The Full Court did not deal with the principles discussed by Sackville J. It confined its attention largely to the question whether ‘special circumstances’ existed, on the facts of the particular case, for the purposes of the application of Anshun estoppel. For present purposes, I am content to regard what Sackville J said as stating the law on res judicata, issue estoppel and Anshun estoppel.
His Honour then puts forward a series of questions which should be answered in order to determine whether or not Anshun estoppel should apply:
57. On this basis, the following issues arise in the present case:
• Is the ‘cause of action’ in the present case the same as the ‘cause of action’ raised by the applicants in any previous proceeding and finally determined in that proceeding?
• Is any issue in the present proceeding, on which the applicants must succeed if they are to establish their entitlement to relief in the present case, an issue of law or fact that has been determined against them in a judicial proceeding?
• If the denial of procedural fairness ground is a new ground, ought the applicants to have raised it in any previous proceeding?
• If so, has such proceeding been the subject of a final determination by a court?
• Do ‘special circumstances’ exist that would lead the Court to permit the applicants to raise denial of procedural fairness in the present case?
Mr Aspinall applied those five questions to the present case. In respect of the first question, Mr Aspinall relies on Applicants M16 of 2004 v Minister for Immigration at [67]:
It is clear from this history that the applicants have not raised the issue of denial of procedural fairness in any previous proceeding…
Mr Aspinall submits that it is clear that on the basis of Wilcox J’s decision that the applicant in this case has done likewise.
In respect of the second question, Mr Aspinall submits that there no such issue of fact or law has been determined in these proceedings simply because that ground was not raised before Wilcox J who therefore could not and did not rule on that aspect. In respect of the third question, Mr Aspinall submits that this has been emphasised in all the submissions made to this Court and does not need repeating. In respect of the fourth question, Mr Aspinall submits that the proceeding has clearly not been the subject of a final determination. In respect of the fifth ground, Mr Aspinall submits that within that summary there is no decision which discusses whether an applicant bringing new grounds based on prohibited grounds will result in an inconsistent judgment. The question of whether or not the Tribunal decision was affected by jurisdictional error was not before Wilcox J. The application was framed in terms of s.476(1) of the Act, which at the time it was brought, which was common at the time. The pleadings could be formatted differently subsequent to Eshetu and other cases. Mr Aspinall submits that this is determined on whether or not what the applicant’s legal representatives did in the circumstances was unreasonable.
Mr Smith submits that the question before Wilcox J was whether the Tribunal decision was vitiated by any of the grounds set out in s.476(1). Those grounds included procedures required by the Act and were not observed. This is the ground that Mr Smith argues encapsulates aspects of procedural fairness, which has been put forward in these new proceedings. Mr Smith also submits that the meaning of jurisdictional error has since been exposed and would have been understood to have fallen within s.476(1)(b) of the Act. Consequently, an argument that the question of whether there was a jurisdictional error in the Tribunal’s decision not put before His Honour Wilcox J is not correct. Consequently, an argument that the jurisdictional error issue was not put before Wilcox J is not correct. Mr Smith argues that His Honour found in effect that there was no error in the Tribunal decision which fell within s.476(1) of the Act. Consequently, if this Court now makes a decision that the decision before Wilcox J was affected by unreasonableness going to jurisdiction, or failed to have regard to the request to call the witness, then the decision will be inconsistent with that of Wilcox J.
Conclusion
I acknowledge that when this matter was argued before Wilcox J, it was subject to the provisions of the old Part 8 of the Act, particularly s.476, which was repealed on 1 October 2001. I also note that the applicant was represented by a solicitor and counsel at that hearing. The outcome of the decision was adverse to the applicant, but there is no evidence or submission why a period in excess of five years has passed before an attempt was made to pursue the applicant’s case. Submissions have been made in this application that a number of alternatives were open to the applicant’s legal adviser. They include the possibility of pleading the applicant’s case in terms which avoid the restrictions of the old Part 8 provisions. Further, the old Part 8 provisions were repealed in October 2001 but nothing was done until November 2005 to revisit these issues. Alternatively, the option to pursue an application in the High Court based on the operation of s.75 of the Judiciary Act has not been pursued at any stage, although that option has been available to the applicant’s legal adviser prior to launching the original proceedings.
This argument has persisted despite the applicant being represented by counsel who must have been aware of the issue of time limits that operates under the Act. The recent application is not supported by affidavit material or submissions in respect of the relevant time limits or delay.
I also acknowledge from the history available that the applicant did not raise the issue of denial of procedural fairness in the previous proceedings. It is not surprising that the legal representatives of the applicant did not raise this issue in the original proceedings because of s.476(2)(a) of the Act, as it was at the time of those proceedings, provided that “a breach of the rules of natural justice” in connection with making a decision was not a ground upon an application could be made under s.476(1) of the Act. There has therefore been no judicial determination of the question of whether the Tribunal denied the applicant procedural fairness. However, the applicant has not been denied the opportunity of either formulating this question in a different form, pursuing it at a later date, or in a different forum. The circumstances in this case are distinguished from Applicants M16 of 2004 v Minister for Immigration where that applicant was denied the opportunity of raising her most significant argument because of special circumstances, those being “gender issues or cultural norms”. I am not satisfied that any special circumstances have been identified that would prevent the principles of Anshun estoppel applying. Although a period did exist due to the structure of the Act which estopped the raising of a denial of procedural fairness argument, this impediment was removed in October 2001. No subsequent attempt has been made by the applicant to raise or pursue this issue until November 2005.
In the absence of any argument or submissions to explain the lengthy delay in seeking redress of these issues, I agree that the orders sought by the first respondent should be granted.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 28 July 2006
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