FEDERAL COURT OF AUSTRALIA

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1054

MIGRATION – application under s 75(v) of the Constitution for writs of prohibition, mandamus and certiorari against the Minister and the Refugee Review Tribunal – application for writs of mandamus and certiorari out of time – whether the proceeding should be dismissed for being out of time notwithstanding that prohibition is also sought – whether all possible operation of the decision of the Tribunal is at an end – consideration of the role of prohibition in a proceeding in which a decision of the Tribunal is sought to be impugned on the ground of jurisdictional error - whether res judicata, issue estoppel or Anshun estoppel apply to the proceeding

Constitution of the Commonwealth of Australia 1901 (Cth) s 75(v)

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 - applied

Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931 – cited

Opanayaka Mudiyanselage v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 823 – considered

Re Ruddock; Ex parte LX [2003] FCA 561 – considered

Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 – considered

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 – cited

Applicant A201 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 752 – cited

Applicant A202 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 732 – cited

Applicants A206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 733 – cited

Applicants A216 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 753 – cited

Oh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 749 – cited

Rogers v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 750 – cited

Batuwantudawa; In the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 – cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 – applied

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 – cited

Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 – cited

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 - applied

Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 – cited

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 1290 – cited

VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1022 - cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 - cited

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 - cited

Applicant M78/2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 726 - cited

Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385 - cited

Trawl Industries of Australia Pty Limited (In liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406 – cited

Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 – applied

Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 - cited

BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 – distinguished

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 - cited

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 – cited

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 – cited

CHELLIAH DAVID THAYANANTHAN, SATHYA JEEVAMALAR THAYANANTHAN, MARLIN MADURA THAYANANTHAN and SABEENA DAYANI THAYANANTHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; ROSLYN SMIDT sitting as the Refugee Review Tribunal and STEVE KARAS in his capacity as Principal Member of the Refugee Review Tribunal

V172 OF 2003

MERKEL J

3 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondents’ costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1                     Each of the members of the applicant family is a Sri Lankan citizen of Tamil descent.  The family arrived in Australia in late 1996 and applied for protection visas on the ground that Australia owed the first applicant protection obligations under the Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”) because he is a refugee, as defined in the Convention.  The basis for the first applicant’s claim to be a refugee is that he has a well-founded fear of persecution by reason of his race and by reason of an imputed political association with the Liberation Tigers of Tamil Ealam (“the LTTE”).  It is common ground that the success of the applicants’ claims depends upon the success of the first applicant’s claim to be a refugee to whom Australia owes protection obligations.

2                     A delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused the application in June 1997 and the delegate’s decision was affirmed by the second respondent sitting as the Refugee Review Tribunal (“the Tribunal”) on 6 January 1999.  The applicants applied to the Federal Court for review of the Tribunal’s decision under Pt 8 of the Migration Act 1958 (Cth) (“the Act”).  The application was dismissed by Marshall J on 12 December 2000: see Thayananthan v Minister for Immigration and Multicultural Affairs [2000] FCA 1825.  An appeal to the Full Court against the decision of Marshall J was dismissed on 4 July 2001: see Thayananthan v Minister for Immigration and Multicultural Affairs [2001] FCA 831.  On or about 3 August 2001 the applicants applied to the High Court for writs of prohibition, mandamus and certiorari, and for injunctive relief, in respect of the Tribunal’s decision.  On 26 November 2002 the High Court remitted the matter pending in the High Court to this court, save for the applicants’ claim that the Tribunal acted without jurisdiction in that “the decision was so unreasonable that no reasonable Tribunal could have made the decision”. 

3                     In the original application to the Court the applicants relied upon a number of grounds of review under Pt 8 of the Act.  It is common ground that the same provisions of Pt 8 of the Act were in force at the time the s 75(v) application to the High Court was lodged and that those provisions apply to that part of the matter that was remitted to this Court by the High Court: see the transitional provisions in the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (Schedule 1, Part 2, Item 8 of Act 134 of 2001), s 44 of the Judiciary Act 1903 (Cth) and subss 485(3) and (4) of the Act prior to its amendment as from 1 October 2001 as provided for by the Migration Legislation Amendment Act (No 1) 2001 (Cth) (Sch 1, Pt 1, Item 2 of Act 129 of 2001).  The applicants’ claim that, as the grounds under Pt 8 upon which they now rely to establish jurisdictional error differ from those raised in their original application to the Federal Court, no question of res judicata or of issue or Anshun estoppel arises.

4                     The Minister contends that the substance of the claims brought in the present application do not differ from those in the original application and therefore res judicata should apply, or alternatively issue or Anshun estoppel applies with the consequence that the proceeding should be dismissed: see Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 (“Somanader”).  The Minister contended that, in any event, no jurisdictional error has been established by the applicants.  However, the Minister also contended that there was a preliminary issue to be determined namely, whether the application should be dismissed because it was out of time.  It is appropriate to deal with that contention at the outset.

5                     The Tribunal’s decision was handed down on 6 January 1999.  The applicants did not apply to the High Court for relief under s 75(v) of the Constitution until about 3 August 2001, almost one month after the Full Federal Court dismissed the applicants’ appeal.  Order 55 r 17(1) of the High Court Rules 1952 (Cth) (the “Rules”) provides:

“An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.”

Order 55 r 30 provides:

“An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine a matter shall be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.”

6                     Under O 60 r 6 the High Court may enlarge time “as the justice of the case requires”.  The Order of 26 November 2002 remitting the matter to the Federal Court provided that the remitted application be governed by the above Rules.  The Rules would appear to apply to the remitted proceeding in any event: see Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931 at [22]-[25]).

7                     Plainly, the applications for writs of certiorari and mandamus are out of time.  However, the Minister accepted that there is no time limit under the Rules in respect of an application for a writ of prohibition or for an injunction.  As was noted in a different context by the Full Court in Re Ross; Ex parte The Australian Liquor, Hospitality and Miscellaneous Workers’ Union (2001) 108 FCR 399 at 409 [38]:

“The employers contended that the application for an order nisi was made to the High Court outside the time limits laid down in O 55.  It should be noted that no time limit is laid down in respect of an application for a writ of prohibition, so that so much of the application to the High Court as sought a writ of prohibition was not subject to any time limit.”

8                     However, at the hearing the Minister submitted that, unless leave to extend the times provided under the O 55 rr 17 and 30 is granted, the proceeding should be dismissed because:

“if the Court finds that there is no basis for the grant of writ of certiorari, there is nothing to prohibit.  The necessary basis of a prohibition is a finding that an impugned decision is a nullity.  The primary relief is certiorari to quash the Tribunal’s decision.”

In support of that proposition the Minister relied upon a recent decision of Goldberg J in Opanayaka Mudiyanselage v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 823 (“Mudiyanselage”) where his Honour said at [17]:

“There is a threshold question to be resolved, namely, whether the applicant should be granted an extension of time within which to bring his application for a writ of certiorari. If time is not extended then that is in substance the end of the proceeding if there is no basis thereafter for the grant of a writ of prohibition, as the gravamen of the applicant’s complaint is the decision of the Tribunal which he wishes to quash or set aside.”

9                     See also his Honour’s decision in Lal; In the matter of an application for writs of prohibition and certiorari against the Honourable Philip Ruddock [2003] FCA 859 (“Lal”) at [9].  In both cases his Honour concluded that there was no proper basis for a writ of prohibition: see Mudiyanselage at [24] and Lal at [20].

10                  In a number of other cases a similar approach has been taken.  For example, in Re Ruddock; Ex parte LX [2003] FCA 561 Heerey J stated at [16]:

“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.”

11                  In Applicant A16 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 567 (“Applicant A16”) the applicant filed a notice of motion seeking an extension of time within which to apply for relief in the nature of writs of certiorari, mandamus and prohibition.  von Doussa J dealt with the issue of extension of time generally and dismissed the proceeding for being out of time on the basis (at [4]) that the “primary relief claimed is certiorari to call up and quash the decision of the Tribunal”.  See also Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 and Applicants A64/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 568.

12                  In several cases Mansfield J relied on Applicant A16 to dismiss applications for an extension of time seeking writs of certiorari “and other prerogative writs” or “associated orders”.  It is not clear whether the proceedings that were dismissed for being out of time involved prohibition: see Applicant A201 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 752; Applicant A202 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 732; Applicants A206 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 733; Applicants A216 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 753; Oh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 749 andRogers v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 750.

13                  In Batuwantudawa; In the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 Gray J held that the application for certiorari was out of time and refused to grant an enlargement of time, with the consequence that “the proceeding must be dismissed” (at [15]).  However, prohibition was sought in that case against the Minister to prohibit him from proceeding further with the proceeding in the Tribunal, which his Honour did not consider to be an effective form of relief as the Tribunal’s proceeding had been completed.

14                  In written submissions filed after the hearing the Minister put an alternative contention.  He accepted, implicitly if not explicitly, that in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) certiorari was granted in aid of prohibition (see Aala at 117 [84]) and therefore prohibition, rather than certiorari, may be the primary remedy sought in a case where jurisdictional error is claimed against the Tribunal in a proceeding under s 75(v).  The Minister claimed, however, that prohibition is a discretionary remedy and may be refused where there has been delay: see Aala at 107 [53], 137 [148] and 144 [172].  Accordingly, it was contended that the proceeding should be dismissed for being out of time in respect of certiorari and mandamus and by reason of the delay in applying for prohibition.

15                  In order to deal with the Minister’s contentions it is necessary to consider the respective roles of writs of prohibition, mandamus and certiorari under s 75(v) of the Constitution.  Writs of prohibition and mandamus are only available under s 75(v) for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (“Plaintiff S157”) at 47 [82].  If jurisdictional error is established the decision is invalid or, put another way, is “regarded, in law, as no decision at all”: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”) at 614-615 [51] and 646 [152] and Plaintiff S157 at 45 [76].  Thus, generally a decision that has been impugned under s 75(v) on the ground that it is infected by jurisdictional error is invalid and has no legal effect.  It has long been accepted that a writ of certiorari to quash an invalid decision may issue as ancillary to the constitutional writs of mandamus and prohibition: see Plaintiff S157 at 46 [80].  Certiorari is granted where it will make the constitutional relief under s 75(v) more efficacious, but it cannot issue except as ancillary to the grant of one or more of the constitutional remedies in s 75(v): see Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 (“McBain”) per Kirby J at 440-441 [176] and the cases there cited.

16                  Accordingly, it is erroneous to regard certiorari as a form of primary relief under s 75(v), or as a prerequisite for a decision to be impugned under s 75(v) on the ground that it is invalid and of no legal effect.  Indeed, a writ of certiorari is not provided for in s 75(v), which only refers to matters:

“[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth…”

17                  It is clear from the foregoing that in a case such as the present certiorari is ancillary to prohibition and mandamus and cannot be the primary relief.  Thus, the Minister’s initial contention that the Court should dismiss the application for being out of time, on the ground that certiorari is the primary relief and prohibition is merely an ancillary remedy, should be rejected.

18                  A similar problem also arises in respect of the application for the dismissal of the proceeding on the ground that mandamus is out of time.  In McBain at 465 [261] Hayne J explained the respective roles of prohibition and mandamus:

“Prohibition will go if there is want of jurisdiction, or if jurisdiction is exceeded. Prohibition will go if a federal superior court acts in breach of the rules of procedural fairness. Mandamus will lie if there has been a failure to exercise jurisdiction.”

19                  The problem can be demonstrated by the relief that is being sought in the present case in which the proposed order nisi calls upon the respondents to show cause:

“WHY A WRIT OF PROHIBITION should not be issued out of this Court directed to the first respondent prohibiting him or his agents or delegates or servants or officers from acting upon, or giving effect to, proceeding further upon or enforcing the decision of the second respondent made on 6 January 1999 (‘the decision’) in Refugee Review Tribunalfile N97/17970 that ‘the Tribunal [the Second Respondent] is not satisfied that the Applicants [the prosecutors] are refugees, and affirms the decision [of the First Respondent by his delegate] not to grant protection visas [to the Prosecutor]’  AND WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the second respondent removing into this Court to be quashed the decision of the second respondent AND WHY A WRIT OF MANDAMUS should not be issued out of this Court directed to the third respondent directing him to appoint a member of the Refugee Review Tribunal to reconsider and determine the prosecutor’s application for a protection visa according to law AND WHY AN INJUNCTION should not be ordered against the third respondent requiring him to appoint a member of the Refugee Review Tribunal other than the second respondent to reconsider and determine the prosecutor’s application for a protection visa according to law.

20                  Putting to one side the injunctive relief (which is incidental to mandamus), the constitutional writs sought by the applicants accord with the writs that might be expected to be sought, although not necessarily issued, in a case brought under s 75(v) in which a decision of the Tribunal is being challenged on the ground of jurisdictional error: see for example the orders made in Aala at 157; cf Re Ruddock; Ex parte Rayes (2000) 75 ALJR 465 at 468 [23].  In the usual case the primary remedy sought is an order prohibiting the Minister from acting upon, giving effect to or enforcing the decision of the Tribunal which the applicant is seeking to impugn under s 75(v).  However, prohibition will not issue if “the order [or the decision] the subject of prohibition is exhausted in the sense that all possible operation of it is at an end”: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 533 and the cases there cited.

21                  In order to determine the possible operation of the decision of the Tribunal after it was handed down, it is necessary to examine the role of the decision under the Act and the Migration Regulations 1994 (Cth) (“the Regulations”).  The scheme of the Act is to require officers of the Minister to detain and remove unlawful non-citizens from Australia: see ss 189 and 198.  An unlawful non-citizen is a person who does not have a visa: see ss 13 and 14.

22                  The applicants arrived in Australia on substantive visas and were thus eligible for the grant of bridging visas, under s 73 of the Act, and reg 2.20 of the Regulations.  The bridging visas are valid “during a specified period” or “until a specified event happens” (s 73).  In the usual course a bridging visa will be valid whilst an applicant’s entitlement to a substantive visa is being determined but will come to an end within 28 days after any refusal to grant a visa or any review of that refusal has been finally determined (see, for example Sch 2, reg 010.513 of the Regulations).  In the usual course the consequence of the Tribunal’s decision would be that the applicants’ bridging visas would come to an end at the expiry of the specified period and the applicants would thereupon become unlawful non-citizens (see ss 13-15 of the Act).  There is an obligation on officers to detain unlawful non-citizens (s 189(1)) and, relevantly, under s 198(6) an officer must remove detained unlawful non-citizens if their application for a substantive visa has been refused and “the application has been finally determined”.  “Finally determined” is defined in s 5(9) of the Act as follows:

“For the purposes of this Act, an application under this Act is finally determined when either:

(a)               a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)               a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted /as prescribed.”

23                  As was pointed out by the Full Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 (“M38/2002”) at 299 [31] Pts 5 and 7 of the Act are concerned only with administrative review and consequently “the Act contemplates that an application is finally determined when an applicant has exhausted all avenues for administrative review”.  In general an officer is under a duty under s 198(6) to remove, as soon as reasonably practicable, an unlawful non-citizen once an application for a substantive visa has been refused and the refusal is no longer subject to administrative review under the Act: see M38/2002 at 305 [54]-[55] and VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1022.  In discharging that duty the officer (who is defined in s 5 of the Act as, inter alia, departmental officers or persons authorised by the Minister to be officers) will be relying on the Tribunal decision as having finally determined the application for a substantive visa.

24                  In the event that the decision of the Tribunal is found by the Court to be invalid, absent any discretionary reason for not doing so, a writ of prohibition could be expected to issue under s 75(v) to prohibit the Minister, and his officers, from acting upon or giving effect to the invalid decision.  Prohibition would be an appropriate remedy because it would prohibit the Minister and his officers from relying on the Tribunal’s decision, which is regarded in law as “no decision at all” (see Plaintiff S157 at 45 [76]), as a basis for the removal of the applicants from Australia irrespective of whether mandamus or certiorari is also granted.

25                  In Aala the High Court found the Tribunal exceeded its jurisdiction by denying procedural fairness and, as a consequence, issued a writ of prohibition prohibiting the Minister “from taking action” on the Tribunal’s decision.  Certiorari was issued “[i]n aid of that prohibition” and mandamus was issued requiring the Tribunal to determine the application for review: see Aala at 117-118 [84].  It is clear that certiorari and mandamus were not prerequisites for the granting of a writ of prohibition against the Minister.

26                  The Tribunal stands in a different position because it has no further role or function in relation to a decision once it has been handed down so there may be nothing left to prohibit it or its members from doing: see for example Applicant M78/2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 726 at [2] and [9].  Thus, there will usually be no basis for a writ of prohibition to issue against the Tribunal or its members once a decision has been handed down.  But, a writ of mandamus may be issued directing the Tribunal or its members to perform their statutory duty to hear and determine the application for a substantive visa according to law, which it will not have done if its decision is invalid.  Although there may be an issue about who is the appropriate member of the Tribunal to hear a matter that has been remitted to it (see Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385) the Tribunal’s duty is to complete the uncompleted review of the decision of the delegate: see s 414 of the Act.  Certiorari may also issue quashing the invalid decision thereby ensuring that the record accurately reflects the true legal position in respect of the decision.

27                  There is nothing in the foregoing analysis that would require prohibition to be regarded as ancillary to mandamus.  Rather, prohibition is a primary remedy under s 75(v) (see Aala at 90 [13]) and it would be erroneous to dismiss a proceeding in which prohibition is properly being sought against the Minister on the ground that the writs of mandamus and certiorari, which are also being sought, are out of time.  Indeed, there may be little utility in dismissing claims for mandamus and certiorari under s 75(v) for being out of time, leaving extant a claim for prohibition because, if prohibition is granted because there is jurisdictional error, the Tribunal remains under a duty to hear and determine the applicant’s application for a substantive visa according to law, and the invalid decision will have no legal effect.  In those circumstances the granting of mandamus and certiorari would appear to be in the interests of all parties as that relief will reflect the true legal position in respect of the impugned decision.  It is to be noted that in Aala, the High Court, having decided prohibition was an appropriate remedy, extended the time for the bringing of an application for certiorari, which was in aid of prohibition: see 117 [84] and 157 [219].

28                  However, delay in bringing a proceeding for prohibition is not irrelevant.  Relief under s 75(v) of the Constitution is discretionary: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 395 [33] and Aala at 92 [17].  But, as was pointed out in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194:

“[If] a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.”

29                  In Aala Gaudron and Gummow JJ observed (at 106-107 [53]) that the discretion under s 75(v) with respect to prohibition involves two separate questions:

“The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”

Their Honours went on to say (at 108 [56]):

“Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [(1949) 78 CLR 389 at 400]:

‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”

30                  Kirby J in Aala at 137 [148] noted that in some circumstances it may be appropriate to withhold constitutional writs including where “a party has been slow to assert its rights [or] has been shown to have waived those rights”.  Hayne J agreed that prohibition is discretionary but, in the circumstances of Aala, concluded that relief should not be refused by reason of delay (see 144 (172]).  See also Gleeson CJ at 89 [5]. 

31                  It follows from the foregoing that it would be wrong to dismiss applications for constitutional writs of prohibition, mandamus and certiorari on the basis that the proceeding for mandamus and certiorari is out of time under the Rules, unless the Court has also determined, in accordance with the principles stated above, that prohibition is not a proper or available remedy in the particular circumstances of the case.  While there may be some cases where a court might conclude that the delay is such that it would refuse prohibition, even if jurisdictional error is found, the present case is not such a case.  Although the delay was substantial the application under s 75(v) was made within a reasonable time after the dismissal of the applicants’ appeal in relation to the proceeding under Pt 8 of the Act.  Putting to one side for the moment the res judicata and estoppel issues there are no circumstances that would make it just that the remedy of prohibition should be withheld if jurisdictional error is established.

32                  For the above reasons it is necessary to consider the applicants’ case in respect of jurisdictional error.  The Minister, however, contends that the issue of jurisdictional error has already been determined against the applicants and res judicata or issue or Anshun estoppel arises by reason of the dismissal of the original proceeding of the applicants in the Federal Court and, as a result, they are barred from raising jurisdictional error in the present application.  It is to that issue that I now turn.

33                  I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader 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.

34                  In Trawl Industries of Australia Pty Limited (In liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510) Gummow J stated at 418:

“It is said that for the estoppel to operate, the cause of action in each proceeding must be the same: see Ramsay v Pigram [(1968) 118 CLR 271] (at 280). But, as Brennan J pointed out in Anshun (at 610-613) the phrase ‘cause of action’ is used imprecisely and in several senses. These include:

(i)        the series of facts which the plaintiff must allege and prove to substantiate a right to judgment;

(ii)        the legal right which has been infringed; and

(iii)       the substance of the action as distinct from its form.

…

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.”

See also Somanader at 689-690 [51]-[52].

35                  Issue estoppel occurs where (Somanader at 692 [69]):

“a party is precluded from contending the contrary of any precise point which has once been distinctly put in issue and has been finally determined between the parties.  Unlike res judicata, issue estoppel may arise when the cause of action in each proceedings is entirely different”

36                  Anshun estoppel occurs when an applicant puts forward in the later proceeding, matters which might have been put in the earlier proceeding.  As the High Court stated in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602:

“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.”

37                  In a case involving res judicata the court has no discretion to allow the proceeding to continue: Somanader at 688 [44].  The same is applicable to cases of issue estoppel: see Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 at 397.  However, if the case involves an Anshun estoppel the court retains a discretion if special circumstances can be shown: see BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 (“BC”) at [22]-[30].

38                  Before considering whether the present proceeding is barred by reason of the dismissal of the original proceeding it is necessary to briefly outline the claims made by the first applicant and how the Tribunal, Marshall J and the Full Court resolved those claims.  The first applicant’s claims were as follows.  The first applicant and his family suffered from communal violence against the Tamils in 1983.  Members of the LTTE approached him a number of times demanding he assist them in their activities.  As a result of those visits the police detained and beat him in July 1995.  In January 1996 the LTTE bombed the Central Bank in Colombo.  The first applicant was in a nearby bank at the time of the explosion and the police rounded him up and other Tamil males in the area.  He was briefly detained and beaten before his release.  Later that year the applicants came to Australia and sought protection visas.

39                  The Tribunal rejected the first applicant’s claims stating that it did not find him to be “an entirely credible or a truthful witness”.  It rejected his claims in relation to the approaches of the LTTE and disbelieved the first applicant’s claim that he was detained in 1995.  It accepted that the applicant may have been detained in 1996 following the bomb blast and noted:

“With regard to the January 1996 bombing of the Central Bank I noted that it appeared that Mr Thayananthan had been detained as part of a general sweep of people in the area, not because he was seriously suspected of involvement in the bombing.  Mr Thayananthan agreed that this was correct.”

The Tribunal concluded that the first applicant’s treatment in being detained after the blast “does not indicate that he was questioned or detained for reasons other than legitimate security measures, nor that he was of continuing interest to the authorities”.  The Tribunal also made a finding regarding the first applicant’s claims in relation to persecution solely on the basis of his Tamil ethnicity.  It stated:

“[T]here is nothing in the evidence before me which suggests that Mr Thayananthan or other members of his family were persecuted or faced a real chance of persecution because of their ethnicity prior to their departure from Sri Lanka, nor that they would face more than a remote chance of being persecuted because of ethnicity if they returned to Sri Lanka now.  I am therefore not satisfied that their fears of persecution for this reason are well-founded.”

40                  In support of his present application for relief under s 75(v) the first applicant claimed the Tribunal committed jurisdictional error by failing to take into account as “relevant considerations” the first applicant’s claims that:

·                    he was beaten while he was detained in 1996 after the Central Bank bombing;

·                    he risked persecution by reason of his Tamil descent.

41                  The first applicant contended that the Tribunal was required to take into account, or was not entitled to ignore, those claims.  As a consequence, so it was contended, the Tribunal’s decision was vitiated by jurisdictional error, is invalid and must be set aside: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at 348-349 [75] and 351 [82].

42                  In the original proceeding before Marshall J the applicants also sought to have the Tribunal’s decision set aside on the ground that it was “invalid”.  The grounds set out in the original application, which were said to support invalidity included:

“1.      The Tribunal did not observe procedures that were required by the Migration Act 1958 or the Regulations to be observed in connection with the making of the decision.

PARTICULARS

(a)              The Tribunal was in breach of section 420 of the Act in failing to act in accordance with substantial justice and the merits of the Applicants’ case in relation to:

                        …

(v)         the arrest detention and beating of the Firstnamed Applicant after the Central Bank bomb blast in January 1996;

…

(xi)       the risk of harm to the Applicants on the basis of their race.

(b)              The Tribunal was in breach of its obligations pursuant to section 430 of the Act to set out its reasons, findings on material questions of fact and evidence upon which those findings were based in relation to:

(i)           the matters set out in sub-paragraph (a) of these particulars to Ground 1 of this application;

            …

2.                   The Tribunal did not have jurisdiction to make the decision.

PARTICULARS

Insofar as the Tribunal was in breach of the Act in relation to the decision including any failure to follow procedures required by the Act and any error in interpreting or applying the law, the Tribunal thereby acted without or in excess of jurisdiction in relation to the decision.

…

5.         The decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.

             …

(b)        The Tribunal erred in rejecting the Applicants’ claims in relation to the matters set out in the particulars to Ground 1 of this Application as incredible or unconvincing on the basis of a priori reasoning and not on the basis of evidence as required by law.”

43                  Although there is some repetition in the grounds it is clear that, in substance if not in form, one of the grounds of alleged invalidity by reason of the absence of jurisdiction to make the decision, is that the Tribunal failed to take into account the beating of the first applicant in detention in 1996 and his persecution as a Tamil: see paras 1(a) and 1(b) and particulars (v) and (xi) and para 2.  Although the failure to take those claims into account is not expressly stated as a ground in para 2 it is implicit from the applicant’s reliance on s 430 of the Act in para 1(b) and on the particulars in para 2 which incorporate the particulars in paras 1 and 5.

44                  Marshall J dealt with the above claims under the heading “Section 430 point and associated submissions”.  Relevantly, for present purposes his Honour stated the applicants’ contentions as follows:

“It was contended that the RRT failed to make a finding on the following material questions of fact:

·                    whether Mr Thayananthan was beaten during his detention in January 1996; and

·                    whether there is a real chance that Mr Thayananthan would suffer persecution again of the kind he suffered in his arrest, detention and beating in January 1996.”

45                  Marshall J rejected the applicants’ claim that the Tribunal fell into any error in relation to how it dealt with those two matters.  It is unnecessary to detail his Honour’s reasons other than to say that he rejected the contention that the RRT failed to make no finding in relation to the two matters.  Rather, his Honour concluded that the beating was “assumed” by the Tribunal but that did not result in the Tribunal being satisfied that the detention and beating supported the perceived LTTE association claimed by the first applicant.  In respect of the claim of a fear of persecution on the ground of race his Honour was satisfied that the claim was dealt with by the Tribunal but that there was a lack of evidence to support it.

46                  His Honour’s dismissal of the proceeding must be taken to include a dismissal of the claim of jurisdictional error set out in para 2 of the application on the basis of a failure to consider or take into account the matters set out in para 1(a)(v) and (xi) of the Application.  It must follow that the “very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence”: see Blair v Curran (1939) 62 CLR 464 (“Blair v Curran”) at 532.

47                  The applicants appealed Marshall J’s decision to the Full Court on a number of grounds, including that Marshall J erred in not finding that the Tribunal had failed to properly deal with the first applicant’s claims concerning his detention and beating in 1996 and of persecution for being a Tamil.  On the appeal the applicants did not pursue those grounds, and the appeal was dismissed on separate grounds.

48                  It is plain from the above summary of the grounds for review relied upon by the applicants in the original proceeding, and rejected by Marshall J and raised but not pursued before the Full Court, that the “right or cause of action claimed or put in suit” that the Tribunal did not have jurisdiction to make its decision because, inter alia, it failed to take into account or ignored the first applicant’s claims concerning his beating in 1996 and his persecution as a Tamil, merged in the judgment and is no longer capable of being claimed in a subsequent proceeding.  Thus, as a matter of both substance and form, res judicata bars the applicants from pursuing the same claim in the present application.

49                  The applicants contended, however, that the decision of the High Court in Yusuf changed the law and afforded them with a cause of action and ground of review that was not available to them in the original proceeding.  In particular, the applicants claimed that Yusuf changed the law by deciding that a failure by the Tribunal to take into account a relevant consideration was reviewable as jurisdictional error under Pt 8 of the Act: see Yusuf at 351 [82].  It was alleged that the applicants made their application for review under s 75(v) of the Constitution to the High Court on the basis that this was a new ground that was not available in the original proceeding.

50                  I do not accept that, relevantly, Yusuf changed the state of the law regarding failure to take into account relevant considerations as a ground for claiming jurisdictional error.  It was well established prior to the hearing of the original application before Marshall J and prior to the hearing of the appeal that, if the Tribunal failed to consider or take into account the claims of an applicant that relate to whether he or she had been persecuted for a Convention reason (ie relevant considerations) that constituted a constructive failure by the Tribunal to exercise its jurisdiction: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63-64; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292-294 and Somanader at 685 ([28]).

51                  If, contrary to my view, the present application related to a right, claim or cause of action that was not claimed in the original proceeding then issue estoppel would apply.  For the reasons already given, the issues raised in the present proceeding were “necessarily decided” by the judgments of Marshall J and of the Full Court: see Blair v Curran at 532.

52                  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 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]).

53                  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, 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.

54                  For the above reasons the applicants’ claims are barred and it must follow that their application for constitutional writs under s 75(v) is to be dismissed.  I would add that I would have dismissed the application in any event as I am not satisfied that the Tribunal erred as claimed by the applicants.  On a fair reading of the Tribunal’s decision it did not fail to consider the beating of the applicant in detention and the issue of his Tamil ethnicity, but, rather, did not accept that either claim, or any of the other claims, warranted the conclusion that the first applicant suffered a real chance of persecution for a Convention reason if he returned to Sri Lanka.

55                  For the above reasons the application is to be dismissed with costs.

Associate:

Dated:              2 October 2003