FEDERAL COURT OF AUSTRALIA

SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 85

Migration Act 1958 (Cth) s 424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975

Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1980] 147 CLR 589

Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) CLR 35

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 242

SZDPF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 356 OF 2006

TAMBERLIN, GRAHAM AND COLLIER JJ

23 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Federal Magistrate Raphael given on 9 February 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”). The decision of the RRT affirmed the decision of the Ministerial delegate refusing to grant a protection visa to the appellant. 

2                     The grounds that the appellant seeks to rely on are outlined in the Notice of Appeal filed on 22 February 2006.  The first of these grounds is that the Federal Magistrate erred in finding that the appellant “runs foul of the doctrine known as Anshun estoppel” in circumstances where special leave to appeal to the High Court was refused. The second ground argued by the appellant is that the Federal Magistrate committed an error of law in exercising his discretion unreasonably and not judicially in dismissing the appellant’s review application.

3                     The central question in relation to the review application is whether the appellant can invoke before the Court the principle laid down in the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP v MIMIA”) to the effect that failure to comply with s 424A of the Migration Act 1958 (Cth) amounts to jurisdictional error.  The history of the matter is that the appellant applied for a protection visa and this was dismissed by the Ministerial delegate on 29 November 2002.  He sought review of that decision from the RRT, which affirmed the delegate's decision on 27 April 2004.  On 21 December 2004, Federal Magistrate Scarlett dismissed the application.  At paragraphs 39 to 41, Federal Magistrate Scarlett dealt with submissions made for the appellant as to the application of s 424A, but the Magistrate found there was no breach of that section.

4                     An appeal was then taken to the Federal Court on 6 January 2005.  On 14 March 2005, Sackville J dismissed the appeal.  On this appeal to Sackville J, no ground of appeal was taken in relation to s 424A.  His Honour noted in passing at paragraph 24 that the Federal Magistrate had rejected a submission that the RRT had failed to comply with s 424A, but otherwise the section was not discussed in his reasons for judgment.  When the appeal came on before his Honour, an application was made for leave to file an amended notice of appeal setting out seven grounds.  Ground seven on which the appellant presently relies reads:

‘The Tribunal misconceived the role of the hearing and failed to afford a hearing of the character contemplated by the Migration Act.’

5                     Counsel for the Minister, on the appeal before Sackville J, objected to leave being granted.  However, his Honour invited argument in order to decide the question of whether to grant leave.  His Honour refused leave to amend because he considered that all the grounds lacked substance.  He specifically said that the grounds included in the amended notice of appeal lacked foundation and dismissed the application with costs.

6                     On 8 April 2005, an application for special leave was made to the High Court.  On 5 August 2005, that application was dismissed on the papers.  After the filing of that application for leave, but before its dismissal, the High Court decided SAAP v MIMIA.  In his reasons for judgment dated 9 February 2006, Federal Magistrate Raphael granted an application made by the Minister to dismiss the substantive application.  The Federal Magistrate held that the substantive application to review the decision of the RRT, which had already been reviewed and in respect of which special leave had been refused, constituted an abuse of process and should be dismissed.  When the matter came on for hearing before us this morning, a question was raised as to whether the decision of Federal Magistrate Raphael was final or interlocutory.  This in turn raises the question as to whether leave is required before this Court can entertain an appeal from Federal Magistrate Raphael.

7                     Having regard to the fact that we have reached the view that there is no arguable substance in the appeal, there is no need for us to determine that question.  However, we note that in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 (“NADZ v MIMIA”), Graham J, in analogous circumstances, held that the orders made by the Federal Magistrates Court finally disposed of the rights of the parties and the decision of the Federal Magistrate should not be treated as an interlocutory judgment.  In considering the application to dismiss, Federal Magistrate Raphael noted at paragraph 4 of his reasons for judgment that the matters raised by the appellant before him, with one possible exception, could have been raised in earlier proceedings before Federal Magistrate Scarlett, Sackville J and the High Court.

8                     The exception to which he referred was the result of the High Court decision in SAAP v MIMIA which reversed the previous state of the law regarding jurisdictional error in relation to section 424A.  Federal Magistrate Raphael considered the doctrine known as Anshun estoppel as set out in Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1980] 147 CLR 589, (“Anshun Pty Ltd No 2”). For this reason, his Honour dismissed the matter as an abuse of process. In his judgment, Anshun Pty Ltd (No 2) is wrongly referred to by the Magistrate as Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) CLR 35.  His Honour also made an error in relation to the date of the application for special leave, but in our view this is not material in the present circumstances.  The point made by the Federal Magistrate is that if the appellant had wished to argue SAAP v MIMIA, he could have done so at the special leave application.  Clearly this could not have been done at the filing of the application as SAAP v MIMIA had not then been decided by the High Court.  However, there was a period of several months between the application for special leave and the dismissal of the application in which the appellant could have raised the point.  This was not attempted in this case.

9                     The principle of res judicata provides that a decision pronounced by a judicial tribunal having jurisdiction over the cause disposes once and for all the matters raised by the parties, so that the matters cannot afterwards be re-litigated between the same parties except on appeal.  The decision precludes any party to the litigation from disputing against another party in later litigation the correctness of the earlier decision.  The same claim cannot be raised again as between the parties, and the principle of res judicata extends to all matters of fact and law which the decision necessarily established as the legal foundation of the conclusion reached by the Court.  (See Handley, Res Judicata (3^rd ed) at paragraphs 1 to 15).  The correctness of the decision is not relevant if it is a final decision on the same question and between the same parties.

10                  In our view, the appellant is bound by the principle of res judicata arising from the judgment of Federal Magistrate Scarlett on 21 December 2004 where his Honour dealt with and rejected the argument presented in relation to s 424A of the Migration Act 1958 (Cth).  That decision has not been set aside.  On the appeal before Sackville J, his Honour noted the submission before the RRT.  He dealt with the seven grounds in the amended notice of appeal, found no substance in them and dismissed the appeal.  The High Court subsequently refused special leave.  The decision of Federal Magistrate Scarlett cannot now be set aside.

11                  In these circumstances, the position is that the case sought to be made under s 424A has been finally dealt with by Federal Magistrate Scarlett and this decision has not been set aside.  As the issue has been fully litigated, we are of the view that Federal Magistrate Scarlett's decision gives rise to res judicata and the substantive application cannot be maintained: See Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at paragraphs 36-39.  We note that Federal Magistrate Raphael decided the question on the basis of Anshun estoppel by highlighting that the argument concerning s 424A could have been raised before Sackville J and the High Court but was not.  Even if, contrary to our view, this is not a case of res judicata, the principles enunciated in Anshun apply.  If the case is one of Anshun estoppel, we are not persuaded there are any special or exceptional circumstances that would warrant any departure from the application of that doctrine to the present case. 

12                  Accordingly the Court orders that this appeal be dismissed with costs.

Associate:

Dated:              23 June 2006