FEDERAL COURT OF AUSTRALIA

Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2004] FCA 286

APPLICANT A210/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

S 177 of 2003

WHITLAM J

19 MARCH 2004

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The proceeding is dismissed generally pursuant to Order 20 rule 2 of the Federal Court Rules.

2.                  The applicant is to pay the first respondent’s costs.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application by the first respondent for the summary dismissal of a proceeding remitted by the High Court.  The proceeding is an application for an order nisi for writs of certiorari, prohibition and mandamus in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 16 April 2002 affirming the decision to refuse to grant a protection visa to the applicant.

2                     An application under s 39B of the Judiciary Act 1903 for the same writs in respect of the Tribunal’s decision was filed by the applicant in this Court on 11 June 2002.  That proceeding was transferred to the Federal Magistrates Court, where it was dismissed on 15 August 2002 following a hearing on the merits: NALE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 170.  The applicant did not appeal from that judgment. 

3                     The first respondent submits that this proceeding is an abuse of process because the applicant’s claims to relief were finally determined by the judgment of the Federal Magistrates Court.  In my view, it must be accepted that res judicata and issue estoppel apply where an earlier proceeding was in the nature of an application for judicial review of an administrative decision.  Cases on point have been recently collected by Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51.  I do not understand the solicitor for the applicant to dispute this view of law.  (Indeed, he submitted that the substance of the two proceedings was of critical importance to the disposition of the present motion.)  The first respondent also relied on the analysis of this question by Allsop J in S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 at [23]-[29], which the Full Court described on appeal as ‘plainly correct’: [2004] FCAFC 28 at [15].

4                     Although an amended application filed in the Federal Magistrates Court had sought relief on grounds that the Tribunal exceeded its jurisdiction and erred in law, the federal magistrate apparently had only to deal with a ‘challenge ... based upon the submission that there was no bona fide exercise of the power by the Tribunal’.  The application for an order nisi in this proceeding was filed on 12 September 2002.  On 4 September 2003, pursuant to leave granted by Selway J, the grounds of this application were amended to read as follows:

‘(1)      The Tribunal denied procedural fairness and natural justice …

            Particulars

            In its decision on page 15 the Tribunal refers to country information that it obtained after the decision of the Delegate.  However it did not provide this adverse information to the Applicant to respond to it. The Tribunal used this information in the hearing, but it is more like an ambush and the Applicant didn’t have an opportunity to respond to that or reflect on it.  This information is the following:

            (“India: United Democratic Front achieve victory in Kerala”, PTI, 13 May 2001, CX52572)

            On Page 16 of the decision the Tribunal refers to yet another Country Information, which is adverse to the Applicant.  This information si (sic) as follows:

            (“O learned judge”, The Economist, 16 March 2001)

            Had the Tribunal send (sic) this application to me before the hearing I could have got my advisers to research relevant information or I myself would have researched closely relevant information and provided to the Tribunal to balance that information.

            Failure to do that was a failure to provide natural justice as dealt with in the cases stated above.

            S 422B of the Migration Act does not apply here as the application to RRT was made before 4 July 2002.

(2)              The Tribunal followed a flawed process in arriving at the satisfaction required to exercise the jurisdiction

Particulars

It used obsolete country information

It used parts adverse leaving out parts supportive of the applicant.

…

Credibility impinged solely based on country information that is too general and not due to any inconsistency of the applicant’s evidence.’

5                     The reasons for judgment in the Federal Magistrates Court show that the particulars of the amended grounds in the current proceeding agitate the same kind of matters as were relied on in that earlier proceeding.  Mr Silva submits, however, that the grounds of review in the two proceedings are different and do not overlap.  He instances the issue of the Tribunal’s intent, which, he says, is of central importance to the question of a want of bona fides, but of no necessary significance to an allegation of denial of natural justice.  That may be so, but such a ground should have been raised in the earlier proceeding.  It was unreasonable for the applicant not to do so at that time and he is estopped from doing so now according to the principle laid down in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  It is true that important High Court decisions on natural justice were handed down shortly before the judgment in the Federal Magistrates Court and have been handed down since that time, but such circumstances do not permit the applicant to rerun under that rubric what is in substance the same case as the one he has already lost.

6                     The first respondent has made out his case for summary dismissal of the proceeding pursuant to O 20 r 2(1)(c) of the Federal Court Rules.  The applicant must pay the first respondent’s costs.

Associate:

Dated: