FEDERAL COURT OF AUSTRALIA Applicant A87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 919 JUDGMENTS AND ORDERS – estoppel – res judicata – issue estoppel – Anshun estoppel – abuse of process – application of res judicata, issue estoppel and Anshun estoppel in judicial review proceedings – whether unreasonable for applicant not to raise matters in previous proceedings. IMMIGRATION – statutory obligations of Refugee Review Tribunal – requirement to give certain information to applicant under s 424A Migration Act – whether Refugee Review Tribunal obliged to bring to applicant's attention judicial authorities on which it intends to rely. Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 applied Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 applied Blair v Curran (1939) 62 CLR 464 applied Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 cited BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 cited Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 cited APPLICANT A87 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; MEMBER REFUGEE REVIEW TRIBUNAL; PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL S 658 of 2003 LANDER J 15 JULY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 658 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A87 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT AND: MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT AND: PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: LANDER J DATE OF ORDER: 15 JULY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application to dismiss the applicant's proceedings is allowed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 658 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A87 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT AND: MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT AND: PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: LANDER J DATE: 15 JULY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by the first respondent to dismiss the applicant's principal proceedings. 2 On 18 February 2003 the applicant filed proceedings in the High Court of Australia seeking the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) made on 27 August 2002 and handed down on 17 September 2002. 3 The applicant is a national of Bangladesh. He arrived in Australia on 5 October 2000. On 14 November 2000 he lodged an application for a protection visa (Class XA) with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 2 January 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa. On 26 January 2001 the applicant applied to the RRT for a review of that decision. 4 On 27 August 2002 the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa. 5 On 11 June 2003 Hayne J ordered: '1. The further proceedings in this application for an Order Nisi for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari be remitted to the Federal Court of Australia, South Australia District Registry. 2. The application for an Order Nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.' 6 On 10 March 2004 the applicant filed an amended application (the second application) under the Judiciary Act 1903 (Cth) supporting the application for the issue of the constitutional writs. In particular, he claimed that the Tribunal decision 'was not with any lawful effect rather it was infected by jurisdictional error'. 7 The particulars given are: '(a) That the Tribunal did not comply with the mandatory obligations that [sic] contained in s 424A of the Migration Act. (b) That the Tribunal references includes – (1) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (2) Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 191 CLR 559, (3) Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, (4) Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 and (5) Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574. (c) That the Tribunal did not ensure, as far as reasonable [sic] practicable, or at all, that the applicant understood why all those references and information were relevant to his review application as required by s 424A(1)(b) of the Migration Act. (d) That the Tribunal did not give the applicant notice of the particulars of the information or references in the manner required by s 424A(1)(a) and s 424(2)(a) of the Migration Act.' 8 The amended application was supported by an affidavit, the content of which was mainly directed to the merits of the RRT decision. 9 On 1 April 2004 the Minister filed a Notice of Motion seeking orders: '1. The application in these proceedings be dismissed pursuant to O 20 r 2 of the Federal Court Rules on the basis that the doctrine of Res Judicata prevents the bringing of the application. 2. Further that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel and Anshun estoppel. 3. Further that the application be dismissed on the grounds that the application is an abuse of the process of this Honourable Court. 4. Further that the application be dismissed on the basis that no reasonable cause of action is disclosed in the application.' 10 The Minister also sought the costs of and incidental to the application. 11 The Minister's Notice of Motion was supported by the affidavit of a solicitor in the employ of the Minister's solicitors. She has deposed that she searched the files of the Department and the RRT. Those files disclose that on 21 October 2002 the applicant issued proceedings in the Federal Court of Australia in the New South Wales Registry seeking, pursuant to s 39B of the Judiciary Act, a judicial review of the decision of the RRT handed down on 17 September 2002. She exhibited a copy of that application (the first application) and the reasons for decision and the orders of Wilcox J given on 29 January 2003 by which he dismissed the applicant's application for review. 12 The first application was in the following form: 'A. Details of claim I am seeking a review of the RRT decision of dated 17/08/2002 [sic] under concerned Section (Error of Law) of the migration act. I received the decision dated 23/09/2002, and lodging this application under Section 39B of the Judiciary Act 1903. I am totally aggrieved by the decision because- 1. The Tribunal Member failed to consider my fear of persecution if I have to go back to Bangladesh- 2. I am aggrieved because the Tribunal Member did not consider me as a refugee whereas I whole-heartedly believe that I am a genuine refugee according to the definition of the UN refugee convention. I had to escape out of my country of origin to avoid persecution and imprisonment due to my involvement in politics- 3. The tribunal member also did not bring into account the gravity of those false cases brought against me to bring undue harassment and to put on trial where I could not receive justice from the Courts- as the justice system in Bangladesh is greatly influenced by the administration- 4. The Tribunal Member did not bring into account that I have been sentenced for five years for my previous political profile in Bangladesh. 5. The Tribunal member's decision was unfair, unjustified and was based on unreliable sources.' 13 In that first application the applicant sought an order 'to redirect the claims to the RRT and to advise The Tribunal to reconsider the matter'. 14 The first application sought, in effect, a review of the merits of the RRT decision. 15 In his reasons, Wilcox J said: '[9] When the hearing was called on today, the applicant appeared on his own behalf, with the assistance of an interpreter. He asked me to review the Tribunal's decision, to set it aside and order a further hearing by the Tribunal. When I asked the applicant to indicate the ground upon which he claimed this order was appropriate, he said that, if he returned to Bangladesh, the police would be looking for him in order to enforce the five year court sentence. I pointed out to the applicant that the Tribunal had refused to accept that he had been sentenced to five years gaol. I further pointed out that this was a finding of fact and was not subject to review in this Court.' Further, he said: '[11] I think it is apparent there is no basis for this Court to grant relief to the applicant. It is not necessary or appropriate for me to express any view about the correctness of the Tribunal's finding in relation to the alleged five year gaol sentence. The reason for that is that the Migration Act 1958 gives to the Tribunal the task of finding the facts, not to the Court. It is not open to me to go over the facts and form an opinion that might be at variance with the opinion of the Tribunal and, on that basis, to set aside the Tribunal's decision. As no other matter has been raised, I have no alternative other than to dismiss the application. [12] The order that I make is that the application be dismissed with costs.' 16 She has deposed, and it was not disputed, that the first application for review and the decision of Justice Wilcox relate to the same decision of the RRT which is sought to be reviewed by the applicant in the application filed in the High Court on 18 February 2003 and, more particularly, in the amended application filed in this Court on 10 March 2004. 17 The Minister's Notice of Motion was listed before me on 4 May 2004. The applicant attended by telephone. 18 It soon became apparent that there were considerable difficulties in the translation of the Minister's counsel's argument through an interpreter in Adelaide to an applicant attending by telephone from New South Wales. 19 I therefore ordered the Minister to present her argument in written form and to provide a copy of the argument to the applicant. 20 The Minister's counsel complied with my direction and the Minister's argument was presented in writing, a copy having been first provided to the applicant. 21 The applicant was invited to respond to the Minister's argument but offered no argument in reply. 22 The first application before Wilcox J was merit based. The second application claims that the RRT failed to comply with s 424A of the Act in that the RRT did not bring to the attention of the applicant the authorities referred to in paragraph (b) of the particulars and to ensure, as far as reasonably practicable, or at all, that the applicant understood why all those references and information were relevant to his review application as required by s 424A(1)(b) of the Act. 23 Both res judicata and issue estoppel apply in applications for judicial review: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. 24 Res judicata arises where a cause of action relied on in proceedings has, in former proceedings, passed into judgment 'so that it has merged and has no longer an independent existence': Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ. 25 The question to be determined on a plea of res judicata is whether the cause of action relied upon in the proceedings in which the plea is raised is the same cause of action which has been determined in the earlier proceedings. 26 In determining that question, the Court will have regard to the substance rather than the form of the proceedings: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510). At first instance, Gummow J said at 418: 'However, as indicated above, for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form. This reflects the constitutional basis of federal jurisdiction, to which I have referred earlier in these reasons. Also, it allows for the very many controversies which now come before superior courts, federal and State, without pleadings. And even where pleadings are necessary or are ordered, the effect of the judicatory system of pleading, now in general operation in Australia, is as described by Barwick CJ: [T]here is no necessity to assert or identify a legal category of action … It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts.' 27 Both applications sought the same remedies, being the quashing of the decision of the RRT and the remittal to the RRT of the matter for further hearing. However, in the first application the applicant only complained about the merits of the decision whilst in the second application he complained about matters going to jurisdiction. 28 In my opinion, the doctrine of res judicata does not have application to this matter. The grounds of the application are dissimilar. In the first application, the only ground raised related to the merits of the application. In the second application, the ground is jurisdictional error based upon a failure to comply with a statutory obligation, namely, s 424A: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722. A decision on the merits does not, of course, address jurisdictional error and, in particular, does not address jurisdictional error based on a failure to comply with s 424A. 29 In my opinion, there is no room for the application of res judicata in this case. 30 Issue estoppel arises where in a subsequent action a party claims that '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': Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J. 31 The respondent claims that Wilcox J found that there was no jurisdictional error. In my opinion, he did not. He found that there were no grounds for review but he did not address, because he was not asked, the question of jurisdictional error. In my opinion, the grounds raised in the first and second applications are different and Wilcox J did not decide a fact or a matter of law in the first application relevant to the second application. 32 In my opinion, no question of issue estoppel arises. 33 Anshun estoppel arises where in subsequent proceedings a party raises a matter for determination which might have been raised and determined in former proceedings. In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602, Gibbs CJ, Mason and Aickin JJ said: 'In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.' 34 Where such a claim is made in subsequent proceedings, the Court may still allow the party who refrained from raising the issue in the first proceedings to raise the matter in subsequent proceedings, if special circumstances exist. 35 In BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221, the Full Court said at [30]: 'In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only 'discretion' which the court may exercise not to apply the Anshun principle is if it finds that 'special circumstances' exist. That is essentially a finding of fact to which the rule in House v R has no application.' 36 On the face of it, there is no reason why the applicant could not have raised the matter complained of in these proceedings in the first application. Section 424A was in the same terms then as it is now. There have been no developments in the case law between the first and second applications, which now allows a claim of jurisdictional error to be put under s 424A that could not have been put in the first application. 37 Because the applicant did not put any argument in relation to the respondent's argument, no special circumstances were adverted to. I can assume, however, that the applicant would rely upon at least these matters to establish special circumstances: 1. The proceedings raise important issues for the applicant. 2. The applicant was unrepresented before Wilcox J. 3. The law on these matters is quite complicated. 4. No prejudice would be suffered by the Minister if the matter could now be adjudicated upon. 38 There may be other matters personal to the applicant which he would rely upon but they were not put on this application. 39 It is true that the applicant was unrepresented before Wilcox J as indeed he was before me and the law is not without its complications. It is also true that the Minister would not suffer any prejudice if the matter could now be considered. The proceedings are important to the applicant. The applicant is presently living in rural New South Wales and these proceedings do not immediately impact on his liberty. However, if he is not entitled to the visa which he has sought he will likely be removed from Australia. He claims that he fears persecution if he were to have to return to his native country. Whilst the matters to which I have referred are not unimportant, especially to the applicant, they would not amount to special circumstances such that the Anshun principle should not be applied adversely to the applicant. 40 In my opinion, the Anshun principle applies and the present proceedings are an abuse of process. For that reason, the application should be dismissed. 41 In case I am wrong about that, I will consider the application on its merits in any event. 42 In my opinion, the applicant's claim is completely without merit. 43 Section 424A obliges the RRT to give an applicant particulars of any information that it considers would be the reason or part of the reason for affirming the decision that is under review, ensuring, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and also obliges the RRT to invite the applicant to comment on such information: s 424A(1). 44 Section 424A(3) provides: 'This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons in which the applicant or other person is a member; or (b) … (c) …' 45 In my opinion, the RRT is not under an obligation to bring to the attention of any applicant the authorities which the RRT may rely upon for the purpose of its consideration of the applicant's status as a refugee or otherwise. 46 Moreover, the RRT is not under an obligation to explain to the applicant why it considers that any particular authority might be relied upon for affirming the RRT decision for either of the purposes referred to in s 424A(1). 47 The information is not information specifically about the applicant and so is not required to be given under s 424A(3). 48 In my opinion, the application, which has been brought by the applicant, is entirely without merit and has no prospects of success. In those circumstances, the respondent's notice of motion has to succeed on that ground as well. 49 The application to dismiss the applicant's proceedings is allowed. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 15 July 2004 Counsel for the Applicant: The Applicant in person Counsel for the Respondent: C Nash Solicitor for the Respondent: Sparke Helmore Date of Hearing: 21 June 2004 Date of Judgment: 15 July 2004