FEDERAL COURT OF AUSTRALIA

Re Ruddock; Ex Parte LX [2003] FCA 561

MIGRATION – protection visa – rejection of application affirmed by Refugee Review Tribunal – High Court application for order nisi for certiorari, mandamus, prohibition and an injunction – remitted to Federal Court – application for extension of time – whether jurisdictional error in failure to give separate consideration to each applicant’s claim – whether actual bias – whether res judicata, issue estoppel or Anshun estoppel in respect of actual bias or jurisdictional error claims in earlier Federal Court proceedings – no extension of time

Judiciary Act 1903 (Cth) s 44(2A)

Migration Act 1958 (Cth) s 36

High Court Rules O 55 rr 17, 30, O 60 r 6

BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 22 – applied

Gallo v Dawson (1990) 64 ALJR 458 – applied

Hughes v National Trustees Executives and Agency Co of Australasia Ltd [1978] VR – applied

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 – cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – applied

Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81 – applied

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 – followed

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 – applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 – cited

RE RUDDOCK; EX PARTE LX

V169 OF 2003

RE RUDDOCK; EX PARTE MX

V170 OF 2003

HEEREY J

18 JULY 2003

MELBOURNE

IN THE MATTER Of AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND PROHIBITION AND FOR AN INJUNCTION AGAINST

THE COURT ORDERS THAT:

1.         The application for an order nisi for writs of mandamus, certiorari and prohibition and an injunction, insofar as it is based on grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi, being exhibit KPA-5 to the affidavit of K P Aravindan affirmed 21 August 1998, is dismissed. 

2.         The applicants pay the respondents’ costs of the proceedings in the Federal Court.

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

IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND PROHIBITION AND FOR AN INJUNCTION AGAINST

REASONS FOR JUDGMENT

1                     These matters come to the Court by way of remitter from the High Court by order of Hayne J on 28 November 2002 pursuant to s 44 (2A) of the Judiciary Act 1903 (Cth).

2                     The applicants are female citizens of Sri Lanka and of Tamil ethnicity.  The first applicant, who was born in 1975, entered Australia on 3 June 1996 and on 9 June 1996 applied for a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act).  The second applicant, the sister of the first applicant, was born in 1976 and entered Australia on 6 July 1996. The second applicant applied for a protection visa on 2 August 1996.

3                     On 5 December 1996 the applicants were interviewed at different times by a delegate of the Minister.  Prior to these interviews the delegate sought and obtained from each applicant permission to refer to information on her file when discussing her sister’s case.  On 20 December 1996 the delegate refused each applicant’s application for a protection visa.

4                     On 10 January 1997 each applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.  On 10 March 1997 a migration agent submitted two sets of submissions to the Tribunal, one on behalf of each applicant.  Each set of submissions made reference to the other.  Hearings by the Tribunal were conducted.  The first applicant’s hearing was on 7 April 1997 and the second applicant’s on 5 May 1997.  At each hearing the applicants’ aunt attended and gave evidence.  Each applicant was represented by the same migration agent.

5                     On 29 June 1997 the Tribunal was reconstituted in each case with the second respondent Dr Rory Hudson being substituted as member.

6                     On 23 July 1997 the Tribunal affirmed the decision of the delegate in each case.  Separate sets of reasons were delivered.  They will be referred to in detail later.

Federal Court proceeding

7                     On 22 August 1997 the applicants issued proceeding no VG 486 of 1997 in the Federal Court seeking an order of review of each decision.  The application was filed by solicitors on behalf of both applicants.  Confusingly, the sequence of the two applicants was reversed.  In the Tribunal, in the High Court proceedings and in the present proceedings on remitter to the Federal Court, the elder of the two sisters, now designated LX, is the first applicant and the younger, now designated MX, is the second applicant.  However, in the 1997 Federal Court proceeding it was the other way around. 

8                     The application in the 1997 Federal Court proceeding stated grounds which included the following in respect of the decision concerning the (there described) first applicant (referred to as “the first decision”):

“1.       The Tribunal did not observe procedures required by the Act to be observed in connection with the making of the first decision.

Particulars

(a)       The Tribunal failed to adopt procedures which enabled the determination of the application according to substantial justice and the merits of the case.  Specifically:

            1.         …

2.         The Tribunal failed to give individual consideration to the merits of the first applicant’s case but the reasons disclose general conclusions made in respect to the evidence of the first and second applicant without attempting to distinguish them;

3.         The Tribunal erred in treating the application of the second applicant as determinative of the claims of the first applicant;

4.         …

2.                  …

3.                  The first decision involved an error of involving an incorrect application of the law to the facts as found by the Tribunal.

(a)        The Tribunal failed to properly determine the individual case of the first applicant.”

9                     Identical grounds were stated on behalf of the (there described) second applicant in relation to the decision concerning her. 

10                  The relief claimed included a declaration pursuant to s 481(1)(c) of the Act (as it then stood) that both decisions were invalid and contrary to law and an order setting them aside.

11                  After reaching the stage of preparing the Court Book index the Federal Court proceeding was dismissed by consent with an order that the Minister’s costs be paid by the applicants.

12                  On 20 July 1998 the Minister refused requests made by the applicants under s 417 of the Act to substitute a more favourable decision than the decision of the Tribunal.

13                  On 4 December 1998 the Minister’s costs of the Federal Court proceeding were taxed at $2557. 

High Court Proceedings

14                  On 21 August 1998 affidavits on behalf of the applicants in support of an application for an order nisi were filed in the High Court.  (Written submissions on behalf of the Minister refer, without explanation, to these affidavits as being filed on 21 December 1998.  However the Federal Court file cover has attached to it a photocopy of the cover of the High Court file which records the affidavits as being filed on 21 August 1998 and I shall treat that as the relevant date.)

Extension of time required

15                  The order of remitter made by Hayne J directed that the application for an order nisi proceed in the Federal Court as if steps already taken in the matter in the High Court had been taken in the Federal Court.  It was also directed that further proceedings on the remitted application before the Federal Court should be governed by O 55 rr 17 and 30 and O 60 r 6 of the High Court Rules. 

16                  The applicants sought an order nisi for a writ of prohibition directed to the first respondent, the Minister, a writ of certiorari directed to the second respondent, Dr Hudson, sitting as the Refugee Review Tribunal, declaration and writs of mandamus directed to the first or alternatively the third respondent, Dr Peter Nygh in his capacity as Principal Member of the Tribunal, and injunctions against the first and third respondents.  The time limit fixed for an application for certiorari is six months after the date of the order in question: O 55 r 17.  For mandamus the period is two months: O 55 r 30.  Under O 60 r 6 time may be enlarged.  The rules make no provision for time limits in relation to prohibition, presumably because prohibition historically was a writ sought when it was feared an order beyond jurisdiction might be made at some time in the future; thus there was no date on which an order, or purported order, had been made so as to start a limitation period running.  In the present case, the impugned orders have already been made and argument proceeded on the implicit basis that failure to obtain an extension of the time fixed for certiorari or mandamus would be fatal.

17                  The applicants swore affidavits which included material relevant to the issue of delay.  In an affidavit sworn on 21 August 1998 the first applicant deposed:

“8.       I did not apply for review to the Federal Court within 28 days of the decision of the second respondent because I made a request to the first respondent pursuant to s 417 of the Migration Act 1958 which, if successful, would have made any action in Court unnecessary.  Further, I am informed by my solicitor and I believe that some essential grounds of review of the decision in the second respondent were not available in the Federal Court.  Further, it would have been a serious financial hardship for me to take action in the Federal Court and so I decided to wait on the result of my request to the first respondent before seeking judicial review.”

18                  She further deposed that the refusal of the request to the Minister was notified to her on or about 20 July 1988 as a result of which her only means to judicial review of the second respondent’s decision was by application to the High Court.

19                  In a further affidavit sworn on 12 November 1999 the first applicant conceded it was correct, as an affidavit on behalf of the respondents had pointed out, that she and her sister in fact had begun a proceeding in the Federal Court.  She deposed that at the time of swearing her earlier affidavit she believed that she had not begun such a proceeding.  She had consulted a solicitor in relation to the decision to refuse a protection visa.  It was now apparent to her that the solicitor began a proceeding in the Federal Court but she had not understood at the time that the solicitor was doing so.  Equally it was now clear to her that the proceedings were dismissed by consent.

20                  The first applicant deposed that she did recall that her then solicitor had explained to her that the action in the Federal Court could not succeed because there were some grounds that were not within the jurisdiction of the Federal Court.  It now appeared to her that the solicitor was giving her that explanation as the reason for discontinuing the Federal Court proceeding but at the time she did not understand this.  She further deposed that the reason she had such a misunderstanding was that because of her age, her unfamiliarity with Australian law in general and experience in legal matters she did not understand the precise steps that the solicitors were taking on her behalf.

21                  The second applicant swore identical affidavits on the same dates. 

Applicants’ case for an order nisi

22                  The order of Hayne J of 28 November 2002 remitted to the Federal Court the applicants’ applications for an order nisi to the extent to which they relied upon the grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi.

23                  On the hearing before me counsel for the applicants indicated that he did not press grounds 3, 6, 7 and 9 and accepted that ground 10 (non-existent fact) could not succeed before a single judge because of the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181, (2001) 64 ALD 1.

24                  Accordingly the only grounds relied on are:

“1.       The second respondent acted beyond jurisdiction because his decision involved a denial of natural justice in that the second respondent was actually biased by reason of not being open to persuasion or having prejudged the prosecutrices application.

            Particulars

The second respondent was not open to persuasion or to considering the prosecutrices application on its merits by reason of

(a)       considering her application together with that of her sister;

(b)       affording no opportunity to the prosecutrix to comment on aspects of her case which the second respondent considered to be unfavourable to her;

(c)        producing reasons for decision for the prosecutrix and for her sister which in almost all respects are identical;

            …

5.         The second respondent acted beyond jurisdiction and erred in law in breaching the statutory duty imposed by s 420 of the Migration Act 1958 (Cth) by failing to provide a fair and just mechanism of review and by failing to act according to substantial justice and the merits of the prosecutrix’s case. 

Particulars

The second respondent was in breach of s 420 of the Migration Act in that

(a)       he gave no opportunity to the prosecutrix to comment on aspects of her case which he considered to be unfavourable to her;

(b)       he treated the case of the prosecutrix and the case of her sister effectively as one unit and not as independent cases with independent assessments to be made of the credibility and merits of each applicant

…

8.         The second respondent acted beyond jurisdiction and erred in law in applying the wrong test to determine whether the prosecutrix was a person to whom Australia owed protection obligations pursuant to s 36(2) of the Migration Act 1958 and cl 866.221 of Sch 2 to the Migration Regulations.

Particulars

The second respondent made adverse findings concerning the credibility of the prosecutrix based partly on the relevant perceived inconsistencies in her case and partly on matters to which she had no opportunity to respond.  As a consequence the Tribunal did not consider properly or at all whether she had a well founded fear or a real chance of persecution should she be obliged to return to Sri Lanka.”

First applicant’s case before the Tribunal

25                  The first applicant was born near Kilinochi.  From 1980 until 1995 she lived in Jaffna with her family.  In about 1990, while at Sundukuli Girls School, she was persuaded to join the Liberation Tigers of Tamil Eelam (LTTE).  She was not given arms training, but served as a “helper” whose task was to distribute brochures, put up posters, prepare medicine for wounded soldiers and distribute food to the fighters.  In May 1994 the LTTE sent her to India to undertake first aid training; thereafter she also did first aid work for the LTTE.  However in 1995 she came under pressure to undertake arms training, because of the outbreak of armed conflict between the LTTE and the Sri Lankan government forces.  The first applicant did not wish to do this and her parents were also opposed.  However, they were aware that some who had refused the LTTE’s demands had disappeared and were presumed to have been killed.

26                  In March 1995 the family moved to Anaikkoddai.  They were at the Navali church when it was bombed by the Sri Lankan air force.  At that point, the family dispersed.  The father disappeared and had not been seen since.  In September 1995 the first applicant travelled with her mother and an uncle to Colombo.  They lived at a lodge in the Pettah District until January 1996.  At the lodge the first applicant met a female LTTE fighter named Kala whom she had known in Jaffna.  After the Central Bank bombing by the LTTE at the end of January 1996 police came to the lodge looking for Kala and took the first applicant into custody.  The police interrogated her about Kala and detained her until 10 April 1996.  During this time she was tortured.  Immediately after her release she applied to the Australian High Commission and came to Australia in June 1996 using a false passport which had been arranged for her by an agent.  The first applicant claimed she will be persecuted upon return to Sri Lanka because of her connections with the LTTE.  She also says that the LTTE are looking for her because she deserted from the North.

Tribunal’s decision on the first applicant’s case

27                  Under the heading “Assessment” and the sub-heading “Credibility” the Tribunal stated that for the purposes of assessing the case it had considered the first applicant’s Compliance interview, refugee status application form, Departmental interview and Tribunal hearing, together with documents submitted by her or on her behalf, as well as the same materials relating to the second applicant. It had also considered the refugee application form of the applicants’ brother. 

28                  The Tribunal stated that upon comparison of all the materials “significant inconsistencies and implausible claims” appeared which had satisfied it that the greater part of the account of the first applicant was not credible.

29                  A critical part of the first applicant’s narrative was the bombing of the Navali church.  This occurred on 9 July 1995.  However on many occasions at the Departmental interview the first applicant had asserted that it occurred on 9 April 1995.  This was a difference of three months in the date of a major incident in the first applicant’s life and was repeated, not under pressure, many times by both the first applicant and her sister. 

30                  The Tribunal thought that a “significant difficulty” for the first applicant’s case was that her father, allegedly missing since the Navali church bombing, had lodged with the Australian High Commission in Colombo in April 1996 an application to visit Australia.  An address in Colombo was given, the form was signed and a photograph, admitted to be that of the first applicant’s father was included.  The application was supported by a number of documents which represented the family as having lived in Colombo for some time, with the father employed there and the two daughters studying.  The first applicant had maintained that the signature was false, and so were the documents supporting the application and most of the information in the application form, including the address.  She said that all these were arranged by the agent.  She further said that it had been arranged for a person who physically resembled her father to attend the interview if necessary.

31                  The Tribunal thought that the idea of a person of similar appearance impersonating the first applicant’s father was “absurd”.  Further, there were documents that could not have been arranged by the agent because they were sent from Australia by fax.  There was also a letter from the first applicant’s aunt in Australia including correct details of the family and there was the Australian citizenship certificate of the first applicant’s uncle.  The Tribunal noted that if the first applicant’s father was missing as was claimed, there would be no point in applying for an Australian visa for him.  The second applicant said this was to make an application on behalf of the family more plausible.  The Tribunal noted that in that case one would expect the mother to be included.  It was said that the mother had never worked so that an application on her behalf would not have succeeded.  But the Tribunal pointed out that if documents on behalf of the father could be forged, so could documents on behalf of the mother, and at least the mother would be available in person to attend an interview if necessary.  The Tribunal therefore did not accept that the first applicant’s father was missing but found that he was staying in Colombo as per the visa application form.

32                  The Tribunal then went on to deal with six matters, most of which involved both the first applicant and the second applicant.  These were as follows:

“[The second applicant] maintained at the Compliance interview that she was in a refugee camp by herself from April to about June, 1995, and did not see her mother or the [first] applicant again until after she had come to Australia.  In her written application, she made no mention of being in a refugee camp at all.  At her Departmental interview, she said that she was at the refugee camp for about four months and last saw her sister and mother there.  The [first] applicant also said she last saw [the second applicant] in the refugee camp in September 1995.

The [first] applicant was inconsistent as to whether [the second applicant] had a passport, saying originally at the Compliance interview that her mother had held [the second applicant’s] passport, later saying [the second applicant] did not have any passport. [The second applicant] maintained that she had been issued with a passport in 1993 or 1994 and had obtained two false ones in order to travel to Australia.

[The second applicant’s] account included a significant inconsistency as to the time of her travel to Colombo:  at her Compliance interview, this was said on at least two occasions to have been in June or July 1996; at her Departmental interview, it was said to have been in March 1996.  She maintained that in October 1995 the LTTE had come to the refugee camp where she was staying; they were looking for the [first] applicant, whom they had sentenced to death for desertion; they told [the second applicant] she must join them within a week or she would face the same sentence.  As to this, it is quite implausible that the LTTE would have allowed a week, during which time she could have escaped from them; further, on any account she then remained for a further five months, during which time the LTTE neither forced her to join them nor harmed her in any way – this is even more implausible.

Although [the second applicant] claimed that she had not signed the Australian visitor visa application, her signature appears identical with her genuine signature as it appears on her refugee status application form.  I am unable to believe that an agent could have forged the signature so successfully.  If her story of all the documentation accompanying these applications was forged were correct, there would not have been any need for the agent to forge a signature, as there would have been, at that time, no genuine specimen available for comparison.

[The second applicant] said that she came from Sri Lanka to Australia via Singapore using one air ticket but two different passports in two different names.  This seems to me almost impossible, for in that case one of the passports would not have matched the name on the air ticket, a matter which would surely be noticed at the airport, and in any case a risk which no agent would take.

When the [first] applicant applied unsuccessfully for migration to Australia under the Special Assistance category in November 1995 – an application not said to be fraudulent – she submitted educational certificates from the Columbuthurai Hindu Maha Vidiyalaya.  This is not the school that she attended according to her refugee status application.  This is of some significance because it will be recalled that the [first] applicant claimed that it was at school that she first became involved with the LTTE.

The medical examination of the [first] applicant in September 1996 shows a complete absence of physical symptoms such as one would expect to find in the case of a person who had recently been imprisoned and tortured for over two months as she claimed.”

33                  The Tribunal then said that there were other inconsistencies on points of detail.  The benefit of the doubt could be extended on some of the more minor points however, in the Tribunal’s view, “the inconsistent and implausible claims in the accounts of the sisters (were) too many and too major” to allow to extend the benefit of the doubt to their accounts as a whole.  The Tribunal considered that the applicants had connived together as to the principal parts of their claims to invent stories which would permit them to make claims to refugee status.  They had endeavoured to make their stories consistent, but had not succeeded under close questioning.

34                  The Tribunal noted that according to the visitor visa application, the first applicant’s father had been employed as a sales manager in Colombo for three years, his daughters had been studying in Colombo since mid 1995.  The Tribunal considered those documents to be genuine, not forgeries, and that they reflected the true position.

35                  The Tribunal made the following findings of fact:

“The[first] applicant is a young Tamil woman originally from the Jaffna area.  She has not had any significant involvement with the LTTE.  She left the Jaffna area some time in 1995 or earlier without difficulty and lived in Colombo since that time.  The Tribunal finds that she has not been detained or tortured and is not suspected or wanted by the authorities in connection with LTTE activities; nor is the LTTE intent upon taking action against her.”

36                  The Tribunal concluded that there was no real chance of persecution either because of any connections with the LTTE or by the LTTE itself.  The Tribunal then dealt with the question whether the first applicant faced a real chance of persecution by virtue of the fact that she was a young Tamil female from the north of Sri Lanka.  The Tribunal noted that the first applicant’s brother was recognised as a refugee by the Department on the basis that he was a young Tamil male from the north.  However, while mistreatment amounting to persecution had on occasions been directed against young Tamil women in Colombo, it had primarily been directed against young men.  In the present case the critical consideration was that the first applicant and her sister had been living in Colombo for some time and studying there without attracting any official attention.  Their father was not missing but, as the documents indicated, living and working in Colombo and therefore available to support them.  The first applicant was well educated and in good health.  The situation for Tamils in the Jaffna area was not good.  Without attempting to decide whether the first applicant, as a Tamil, might face a real chance of persecution for that reason alone in the Jaffna area, the Tribunal found that if she does it would in any case be reasonable to expect her to relocate.

Second applicant’s case before the Tribunal

37                  The second applicant was born near Kilinochi.  When she was at school her sister, the first applicant, joined the LTTE; the second applicant herself did not join but she sometimes spoke in favour of the LTTE to other students.  In March 1995 the second applicant’s family moved to Anaikkoddai.  They were at the Navali church when it was bombed by the Sri Lankan air force.  At that point, the family dispersed.  The second applicant’s father disappeared and had not been seen since.  The second applicant’s sister, the first applicant, travelled to Colombo to avoid the demands of the LTTE that she undertake military training with them.  In the north, however, the LTTE questioned the second applicant about her sister, saying that she had betrayed the cause and was sentenced to death.  They insisted that the second applicant should join them and gave her a week in which to do so.  However she did not do so but escaped to Colombo where she stayed in a lodge and made arrangements to travel to Australia.  With the help of an agent she arranged this travel using false documents.  The second applicant claimed that she would be persecuted upon return to Sri Lanka because of her connections with the LTTE and those of her sister.  Also the LTTE are looking for her because she deserted from the north of the country.

Tribunal’s decision on the second applicant’s case

38                  Under the heading “Assessment” and the sub-heading “Credibility” the Tribunal’s reasons are exactly the same except that it refers to the second applicant as “the applicant”. The sister referred to is the first applicant.  In the passages I have already quoted the names of the sisters are transposed.  The Tribunal’s observations about inconsistencies and the visitor visa applications are the same.  The Tribunal proceeded to make the following findings of fact:

“The [second] applicant is a young Tamil woman originally from the Jaffna area.  She has not had any significant involvement with the LTTE.  She left the Jaffna area some time in 1995 or earlier without difficulty and lived in Colombo since that time.  The Tribunal finds that her sister has not been detained or tortured and is not suspected or wanted by the authorities in connection with LTTE activities – therefore, the [second] applicant herself is not in danger in this context; nor is the LTTE intent upon taking action against her.”

39                   Under the heading “Prospect of Persecution” the Tribunal said that if the second applicant or her sister were or were thought to be connected with the LTTE in any serious way that would of course be something that could lead to her being persecuted in Sri Lanka upon return.  However, in view of the findings of fact the Tribunal concluded there was no real chance of this and no real chance of the LTTE seeking to persecute her.

40                  The Tribunal then continued to make identical findings in relation to the second applicant’s position as a young Tamil female from the north living in Colombo and the question of relocation should she go to the Jaffna area.

Conclusion on extension of time

41                  The grant of an extension of time is not automatic.  The object of the rule extending time is to ensure that the rules that fix time do not themselves become instruments of injustice.  This discretion to extend time is given for the sole purpose of doing justice between the parties.  In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.  The prospects of success in the substantive proposed proceeding is relevant:  Gallo v Dawson (1990) 64 ALJR 458, Hughes v National Trustees Executives and Agency Co of Australasia Ltd [1978] VR 257. 

42                  In the present case the applicants brought their 1997 Federal Court proceeding within time.  When the s 417 application was refused they proceeded reasonably promptly to file their application in the High Court.  The critical delay was caused while they waited for the outcome of the s 417 application.  As a matter of law there was no reason why that should have held up the filing of an application in the High Court.  The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right. 

43                  There is no detail provided to support the assertion of severe financial hardship.  The applicants have been living in Australia since 1996 so presumably have some means of support, but whether that is from employment, aid from their parents, or any other source is not disclosed.  They have had legal representation in the 1997 Federal Court proceeding and in the High Court proceedings, both in that Court and on remitter, but whether or not that was provided by some form of legal aid or by payment from some private source, is not disclosed.  It is not explained why legal representation or advice as to proceeding in the High Court was not available at other relevant times, and in particular at the stage when the 1997 Federal Court proceeding was abandoned.

44                  So I do not think the proffered explanation for the applicants’ delay is particularly persuasive.  There remains moreover the question of their prospects of success.  In this regard, there is something of a trade-off.  Strong prospects of success might outweigh the negative effect of long delay, or delay for which there is little in the way of adequate explanation.  And it must be kept in mind that in asylum cases the consequences of a wrong decision can have the most serious consequences for the individual.

45                  There is perhaps some artificiality in speaking of prospects of success in a case like the present one where the issues are confined and I have been assisted by careful and comprehensive submissions of counsel on both sides.  Indeed there has been no practical difference from the approach which would be taken at a final hearing where no question of extension of time was involved.  Having heard full argument, I am satisfied that there is no substance in the applicants’ cases.

46                  Counsel agreed that the various grounds relied on could be encapsulated as

(i)         actual bias, and

(ii)        jurisdictional error in failing to give separate consideration to each applicant’s claim.

47                  However there first arises the contention by counsel for the Minister that the doctrines of res judicata and issue estoppel arising from the disposal of the 1997 Federal Court proceeding prevents the applicants from relying on ground (ii).  As to ground (i), although actual bias was not raised in the Federal Court proceeding, counsel submitted it could have been and thus Anshun estoppel applies: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 

48                  The application of these doctrines in the context of judicial review is the subject of comprehensive discussion and analysis by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677.  I adopt his Honour’s analysis.  I note in particular his Honour’s conclusions, well supported by authority, that the doctrines of res judicata and issue estoppel apply to applications for judicial review (at [43]), that orders by consent equally give rise to such pleas (at [35]), and that the question whether there is identity between the earlier cause of action and the ones raised in the proceeding said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded (at [52]). 

49                  In Somanader, as in the present case, the order of Hayne J remitted to the Federal Court that part of the matter in which the grounds for relief sought reflected grounds under the former Pt 8 of the Act, other grounds being adjourned to a date to be fixed.  So the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8.  Merkel J said (at [65]):

“Accordingly for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above.  The substratum of facts giving rise to the right to review are exactly the same.  The factual circumstances relied upon to establish the right to relief are the same.  The substance of the two proceedings is the same.  The right to relief in each case is informed by the same substantive law principles.  It is not contended that the parties to the two sets of proceedings differ in any material respects.  Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.”

50                  That reasoning is applicable to the present case.  The complaints now sought to be raised in the High Court proceedings as to the way the Tribunal took into account, in the case of each applicant, defects in the case of her sister, were squarely raised in the 1997 Federal Court proceeding. 

51                  As to ground (i), actual bias was an available ground under the former Pt 8: s 476(1)(f).  In BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [24[-[30] the Full Court of this Court followed the view of the Full Court of the Supreme Court of Victoria in Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81 at 89 that

“…the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule (Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590).”

52                  In BC’s Case the Full Court found that a combination of four circumstances amounted to special circumstances.  These were that: (a) important issues of life and liberty were raised; (b) the Minister was not subjected to the costs and other pressures weighing on ordinary litigants; (c) the “complex bifurcated process of review”; and (d) in the state of authorities at the time it was “reasonable not to rely on jurisdictional unreasonableness”.  Their Honours (at [38]) thought that failure to raise jurisdictional unreasonableness was “excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition [presumably a reference to Yusuf’s Case (2001) 180 ALR 1] and there was little guidance in the particular context of the Act”

53                  In the present case no satisfactory basis for special circumstances in the Anshun sense could in my view be made out.  The 1997 Federal Court proceeding was commenced by a considered, professionally prepared document, not just a pro forma repetition of the statutory grounds.  The ground of actual bias, in marked contrast to the yet to be revealed ground of “jurisdictional unreasonableness”, was then specifically provided for in the Act.  The materials and arguments now sought to be relied on to prove actual bias were equally available to the lawyers who prepared the 1997 application.  There is the further consideration that, as Burchett J said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127, a finding of actual bias is

“…a grave matter, different in kind from a finding of mere error, or even wrong headedness, whether in law, logic or approach.”

54                  For the foregoing reasons, no extension of time should be granted.  However, quite apart from the legal consequences of the disposition of the 1997 Federal Court proceeding, I am satisfied that the applicants’ grounds are without merit. 

55                  As to actual bias, counsel did not rely on anything other than the reasons themselves.  It may be possible to infer from the reasons for a decision that an accumulation of factual errors compels the conclusion that the decision-maker proceeded to consider the case from a preconceived opinion and fixed position so adverse to the person affected as to preclude a fair hearing: Sun at 133.  But the present case is far removed.  The central fact finding as to the family’s visitor visa application was fatal.  There could be no reviewable error in that finding, depending as it did on the acceptance of documents which appeared valid on their face and the rejection of highly implausible explanations.  The reason the Tribunal decided against the applicants was not that it had any preconceived view but rather that their evidence was, in central respects, found to be untruthful.

56                  As to jurisdictional error, the cases of the applicants were inextricably intertwined.  This was recognised at every administrative and judicial level by everyone concerned, not least the applicants themselves and their advisors.  There would have been no legal reason why the Tribunal could not have given the one set of reasons, as frequently happens when two or more members of the one family seek review by the Tribunal.  In reality, each applicant was a witness for the other.  A defect in the evidence of one must of necessity affected adversely the other’s case.

Orders

57                  The application for an order nisi for writs of mandamus, certiorari and prohibition and an injunction, insofar as it is based on grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi, being exhibit KPA-5 to the affidavit of K P Aravindan affirmed 21 August 1998, is dismissed.  It is further ordered that the applicants pay the costs of the respondents in the Federal Court.

Associate:

Dated:              18 July 2003