FEDERAL COURT OF AUSTRALIA Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 MIGRATION – claim for protection visa refused by Refugee Review Tribunal – application for review under Pt 8 of Migration Act 1958 (Cth) dismissed – subsequent application for constitutional writs under s 75(v) of the Constitution – application brought out of time – remittal from High Court – whether adequate explanation for delay – whether futile to enlarge time – proposed ground of review similar to that previously rejected – whether res judicata applicable – whether Anshun estoppel applicable Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) s 39B Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 applied Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 followed APPLICANT M29 of 2001 & ANOR v MINISTER FOR IMMIGRAITON AND MULTICULTURAL AND INDIGENOUS AFFAIRS V914 of 2002 WEINBERG J 6 NOVEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V914 OF 2002 BETWEEN: APPLICANT M29 OF 2001 & ANOR APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WEINBERG J DATE OF ORDER: 6 NOVEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V914 OF 2002 BETWEEN: APPLICANT M29 OF 2001 & ANOR APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: WEINBERG J DATE: 6 NOVEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This proceeding has had a long and, it must be said, unfortunate history. The first applicant is a Tamil, and a Sri Lankan national. He arrived in Australia, together with his wife, on 11 May 1997. On 27 June 1997, they lodged an application for a protection visa. On 13 August 1997 a delegate of the respondent refused that application. On 27 August 1997, an application to review that decision was lodged with the Refugee Review Tribunal ("the RRT"). For reasons which are not immediately apparent, an oral hearing was not conducted until 9 November 1999. On 26 November 1999, the RRT affirmed the decision of the delegate, and refused the applicants a protection visa. 2 On 17 December 1999, the applicants filed an application, pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") to review the decision of the RRT. On 5 July 2000, Goldberg J dismissed that application. His Honour's judgment is to be found at [2000] FCA 897. There was no appeal from that judgment. 3 On 24 October 2000, the applicants requested the respondent to exercise his powers under either s 48B or s 417 of the Act. That request was refused on 28 February 2001. 4 On 29 March 2001, the applicants applied to the High Court for what these days are generally described as "constitutional writs" under s 75(v) of the Constitution. Their application was supported by an affidavit, sworn by their solicitor, to which was exhibited a draft order nisi. On 26 November 2002, Hayne J ordered that the application for the order nisi be remitted to this Court, subject to a direction that it proceed as if the steps already taken in the application in the High Court had been taken in the Federal Court. There was no consideration of the merits of the matter. 5 On 16 June 2003, the applicants filed in this Court an application pursuant to s 39B of the Judiciary Act 1903 (Cth). Part C of that application particularised the grounds on which relief is now sought. It is in the following terms: "C Details of Claim 1. In making the decision the subject of these proceedings the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it misconstrued the test of a "real chance" of persecution provided in the Refugees' Conventionin that its decision was predicated upon the approach and the assessment it adopted as to the credibility of the applicant. Particulars i) it misunderstood and effectively ignored the applicant's case that the basis of his fear of persecution from the LTTE was the positive identification of LTTE that he had made to the security forces." 6 The reference to the LTTE was a reference to the Liberation Tigers of Tamil Eelam, a militant Tamil separatist group. 7 The application was filed in the High Court well outside the time limits applicable for such proceedings. An order nisi for a writ of certiorari must be sought within six months of the date of the judgment or order challenged (O 55 r 17 of the High Court Rules). An application for a writ of mandamus, or an order in the nature of mandamus, must be made within two months of the date of the refusal to hear (O 55 r 30). There is a general power to enlarge time (O 60 r 6). Given that Hayne J did not enlarge time, the application remains subject to these time limits. 8 The principles governing applications for the enlargement of time under the High Court Rules were explained by McHugh J in Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491. Relevantly, his Honour said that the grant of an enlargement of time is not automatic. A case would need to be "exceptional" before the time for commencing proceedings was enlarged by many months. In deciding whether to enlarge time, the Court will have regard to both the explanation for the delay, and the applicant's prospects of success. Importantly, the constitutional writs are directed at the acts or decisions of public bodies or officials. The public interest requires that there be finality regarding the efficacy of such acts or decisions. 9 A fundamental consideration in any application to enlarge time is the length of delay that has occurred. In ex parte Marks, there had been a delay of seventeen months between the making of the decision and the application for the constitutional writs. McHugh J doubted that an extension of time could ever be granted to quash a decision after such a lengthy delay, unless it was brought about by some conduct on the part of the respondent, the public body or the official. 10 In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. The applicants also claimed financial hardship, but put forward little material in support of that claim. 11 The respondent submitted that it could be inferred from the applicants' failure to appeal against the decision of Goldberg J, and from their request for ministerial intervention, that they had deliberately decided to accept the RRT's decision, and that they had effectively abandoned the claims now belatedly sought to be advanced. 12 In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8] – [10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time. However, it is appropriate to consider also the prospects of success if time were extended. 13 It is clear, in my opinion, that the applicants have no tenable claim for the grant of relief. There is no substance in the ground of review sought to be agitated in this application. Even if there were, the application should be dismissed on the basis of res judicata, or alternatively, on the basis of what is generally described as Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). 14 The applicants' case is founded upon the contention that the RRT misconstrued the "real chance" test. That claim is particularised, it being asserted that the RRT misunderstood and effectively ignored their case. It is argued that the basis upon which the first applicant feared persecution from the LTTE was the "positive identification of LTTE suspects that he had made to the security forces", and that the RRT failed to appreciate that fact. 15 The short answer to this contention is that the RRT neither misunderstood nor ignored the first applicant's claim. It accurately recorded his claim that he had been "forced by the SLAF [Sri Lankan armed forces] to identify LTTE suspects", and that "on some occasions, he would advise the interrogators that he had heard the suspect had some LTTE links". The RRT also recorded his claim that "the LTTE attacks anybody who assists the government", and his claim that he feared that he would be harmed by the LTTE "as a suspected informer to or collaborator with the SLAF". 16 In its findings, the RRT concluded that, with regard to identifying people, the first applicant had been "mostly asked by suspects to vouch for them and he did so if he knew them". It does not follow, as the applicants contended, that the RRT misunderstood or ignored the first applicant's claim that he had, on occasion, identified LTTE members. The RRT found that throughout the period 1993 to 1996, he had never been attacked by the LTTE. It specifically rejected his claim that he had been threatened by the LTTE in December 1996, and in January 1997. In fact, the RRT totally rejected his claim regarding any such threats, a finding that Mr Gibson, counsel for the applicants, properly conceded he could not challenge in this proceeding. 17 In my opinion, the RRT understood the first applicant's evidence regarding his positive identification of LTTE members, but rejected the contention that this put him at risk of persecution. The RRT also rejected the contention that he was at risk of significant harm on the basis that the LTTE suspected him of being a "traitor" to its cause. 18 Importantly, the RRT went on to say that even if the first applicant had been threatened by the LTTE for assisting the SLAF, "none of the threats was ever implemented", and that the first applicant "had adequate protection from government security forces" in that part of Sri Lanka from which he came. 19 The applicants' already tenuous case is weakened further by the fact that they unsuccessfully raised before Goldberg J almost the same issue that they now seek to agitate. The attack that was made on the RRT's reasoning before his Honour turned upon whether it had correctly approached the question of "well-founded fear of persecution". It was submitted on behalf of the applicants that the RRT, having found that the LTTE had not made the alleged threats in December 1996 and January 1997, had erroneously concluded that, in those circumstances, the applicants could not have had a well-founded fear of persecution. It was submitted that the issue was not whether the threats had been made, but whether the applicants had a well-founded fear of persecution which could exist independently of any threats. 20 In the proceeding before Goldberg J, the applicants submitted that there were a number of "other circumstances", apart from threats, which warranted the existence of a well-founded fear of persecution. They contended that these circumstances may have engendered a perception in the LTTE that the first applicant was antipathetic to its cause. They relied upon the fact that the first applicant was a Tamil who was involved with the Military Civic Committee, that he acted as an interpreter on behalf of the SLAF, and that he was a well-respected man associated with the security forces. In short, they submitted that the question was whether the first applicant's fear of the LTTE was well-founded because it would perceive him as an ally of the SLAF, or as being hostile to the LTTE. They submitted that this claim had not been considered by the RRT. 21 Goldberg J rejected that submission. His Honour found that the RRT had specifically turned its attention to the issue whether the LTTE might consider that the first applicant was a traitor, and antipathetic to its cause. He identified a passage in the RRT's reasons for decision to demonstrate that very point. He concluded that the passage was an effective answer to the submission. 22 In my view, the argument sought to be raised before me in support of the present application is but a subset of the argument that was considered and rejected by Goldberg J in the earlier proceeding. The doctrine of res judicata, as explained by Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 at par [33], operates to prevent that argument from being maintained. Merkel J said: "I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader [(2000) 178 ALR 677] in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s 75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding." 23 In my view, the cause of action in the present proceeding is, relevantly, "the same cause of action" that was determined by Goldberg J in the original proceeding. The fact that the present application takes the form of an application for constitutional writs, as distinct from an application under Pt 8 of the Act, does not lead to a different conclusion. Both applications concerned a claim that the RRT misunderstood or ignored certain evidence regarding the positive identification by the first applicant of LTTE members. In the proceeding before Goldberg J, that contention was subsumed within a broader argument of which it was in reality but a subset. In the proceeding before me, the contention has been elevated to a more central place in the argument. That does not detract from the fact that, in substance, the cause of action in each proceeding is the same. 24 If I am wrong about the applicability of the res judicata doctrine, I would nonetheless hold that the "positive identification" argument should not, as a matter of discretion, be permitted to be put. That is because, in my opinion, that argument is precluded by the Anshun estoppel doctrine. Before Goldberg J, the applicants listed the matters, other than threats, that were said to constitute "other circumstances" which warranted the existence of a well-founded fear of persecution. However, the one factor that they did not specify, at least in terms, was the first applicant's positive identification of LTTE members. That was a matter that was known to the applicants. It should have been raised before his Honour if they wished to rely upon it. In Thayananthan, Merkel J said at pars [52] – [53]: "In any event, the issues raised in this application were open to be raised, and should have been raised, before Marshall J. In such circumstances, Anshun estoppel would be applicable. As noted above Anshun estoppel, unlike res judicata and issue estoppel, enables the Court to exercise its discretion to allow the proceedings to continue if special circumstances can be shown as to why the issues weren't fully canvassed at the earlier hearing. In BC [BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221] the Full Court held that the applicant, in not previously putting forward a "jurisdictional unreasonableness" argument to found jurisdiction, was barred by Anshun estoppel unless there were special circumstances to explain why that claim was not put in the previous proceeding. The Full Court found that a combination of, inter alia: the fact that the case involved the life and liberty of the applicant; the Minister was not subject to costs and time pressures; review is a complex bifurcated process; and the state of the authorities at the relevant time were such that it was not unreasonable not to raise jurisdictional unreasonableness, constituted special circumstances (see BC at [31] and [38]). However, BC can be distinguished as the availability of unreasonableness as a ground of jurisdictional error was in doubt at the time of the original proceeding. As explained above, I do not accept that Yusuf [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323], relevantly, changed the law. Further, Yusuf was handed down before the Full Court handed down its decision in this matter and if Yusuf changed the law as is alleged, it was open to the applicants to apply to present further submissions to the Full Court if they considered Yusuf opened up new avenues of review to them. Alternatively, it was open to the applicants to apply for special leave to appeal to the High Court against the decision of the Full Court on the basis of Yusuf. Instead, they chose to make a new application to the High Court. While there may be nothing improper about that the applicants have offered no explanation for taking that course, rather than either of the other two alternative courses referred to above. I have concluded that if res judicata or issue estoppel do not apply Anshun estoppel should apply and I would not exercise my discretion to allow the proceedings to continue on the ground of special circumstances." 25 These observations seem to me to be applicable, with equal force, to the applicants' sole proposed ground of review. 26 I should say, for completeness, that the respondent submitted that the applicants' attempt to rely upon this ground of review, in support of their application for constitutional writs, amounted to an abuse of process. It is not necessary for me to determine that issue. I expressly refrain from doing so. 27 For the reasons set out above, this application must be dismissed. The applicants must pay the respondent's costs, including any reserved costs arising from the remitter. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg J. Associate: Dated: 6 November 2003 Counsel for the Applicants: Mr J.A. Gibson Solicitors for the Applicants: Ravi James & Associates Counsel for the Respondent: Mr W. Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 November 2003 Date of Judgment: 6 November 2003