Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641

FEDERAL COURT OF AUSTRALIA

Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 MIGRATION – visa – protection visa – procedural fairness – applicant a woman with culturally induced reluctance to divulge to men what had happened to her – indications in material in support of application that she had not divulged everything – tribunal member made no attempt to ascertain what more she might say – whether denial of procedural fairness – relevance of ministerial guidelines for dealing with gender-related claims – whether guidelines applicable to tribunal ESTOPPEL – res judicata, issue estoppel and Anshun estoppel – previous proceedings in respect of same decision of Refugee Review Tribunal – denial of procedural fairness not raised – could not have been raised in previous Federal Court proceeding – not raised in previous High Court proceeding – application for order nisi dismissed by consent COURTS AND JUDGES – time limitations – proceeding remitted from High Court – whether time limits in High Court Rules applicable in Federal Court Constitution s 75(v) Migration Act 1958 (Cth)ss 5(1), 36, 54(3), 55(2), 91X(1), 394, 414(1), 415(1), 420A, 425(1), 430, 474, 474(2), 476(1) (repealed), 476(2)(a) (repealed), 477(1), Pt VIII (repealed) Judiciary Act 1903 (Cth)s 39B Federal Court Rules O 51A r 5, O 51A r 5(2), O 80, O 80 r 9 High Court Rules O 55 r 17 (repealed), O 55 r 30 (repealed), O 60 r 6 (repealed), r 4.02 Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (2005) 79 ALJR 1009 followed Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 followed Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 followed Calvin v Carr [1980] AC 574 referred to Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529 (1999) 168 ALR 190 referred to Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 (1999) 164 ALR 339 referred to Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7 (1999) 161 ALR 612 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 followed