FEDERAL COURT OF AUSTRALIA

Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306

APPLICANT A321 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 279 of 2003

WILCOX J

2 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The applicant’s notice of motion filed on 29 October 2003 be dismissed.

2.         The proceeding be dismissed.

3.         The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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

REASONS FOR EX TEMPORE JUDGMENT

WILCOX J:

1                     There are before the Court two notices of motion.  In order to understand them, it is necessary for me to set out a brief history. 

2                     The applicant in the principal proceeding is apparently a citizen of Nepal.  He claims he was targeted by Maoists in Nepal and, for this reason, left the country in about 1997.  He lived for some time in India, before coming to Australia in May 1999.  Shortly after arriving in Australia, the applicant applied for a protection visa on the basis of having a well-founded fear of persecution, if he returned to Nepal, on account of his political opinion.

3                     A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused his application for a protection visa.  The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  However, in a decision dated 4 April 2002, the Tribunal affirmed the decision of the delegate. 

4                     The Tribunal member accepted the applicant’s claims that he had been targeted by Maoists in Nepal and that he was in danger of persecution if he returned to that country.  However, the Tribunal member considered that there was no impediment to the applicant returning to India.  Accordingly, the effective protection principles developed under the Convention relating to the Status of Refugees (1951), as amended by the Protocol relating to the Status of Refugees (1967), did not apply to the applicant. 

5                     The applicant was dissatisfied with that decision.  On 24 May 2002, he filed an application in this Court.  The application was made under s 39B of the Judiciary Act 1903 (Cth).  The application did not specify any grounds for the claimed relief. 

6                     It appears the application was remitted by a judge of this Court to the Federal Magistrate’s Court.  It was listed for hearing before Raphael FM on 4 November 2002.  On that occasion, Mr D Burwood of counsel, who appears for the applicant today, represented the applicant.  Mr Burwood put certain arguments to the magistrate.  They are summarised in the magistrate's reasons for decision delivered on 8 November 2002. 

7                     Apparently, the primary submission was that the Tribunal did not make a bona fide or genuine attempt to exercise its powers.  In putting that submission, Mr Burwood took the magistrate to the material that was before the Tribunal.  However, the magistrate found that the Tribunal had made a genuine attempt to exercise its powers.  The magistrate gave reasons for rejecting the particular arguments that were put to him.

8                     No appeal was brought to this Court from the magistrate’s decision.  However, on 26 November 2002, a draft order nisi was filed in the High Court of Australia.  The draft order nisi sought to invoke the jurisdiction of the High Court under s 75(v) of the Constitution.  On 7 February 2003, Hayne J remitted the matter to this Court.  His Honour did not, himself, make an order nisi or any other order.  The application for an order nisi was left outstanding.

9                     The matter was remitted to the South Australia Registry of the Court.  It came before Selway J on 16 June 2003.  His Honour ordered the applicant to file and serve a notice of motion seeking an extension of time to commence proceedings, an affidavit explaining the delay in commencing proceedings in the High Court, an amended application specifying any jurisdictional errors of the Tribunal and an outline of submissions.

10                  The applicant complied with these orders.  He filed a motion on 29 October 2003 seeking an extension of time for commencement of the proceeding.  In support of that motion, he filed an affidavit sworn on 28 October 2003, in which he explained the delay in commencing the matter in the High Court by reference to the fact that the period of six months, the time in which an application for an order nisi for a writ of certiorari can be made under the High Court Rules, was effectively exhausted by the delay in obtaining the decision of the Federal Magistrate’s Court.  This explanation is understandable.  If there was no other problem with the applicant’s case, I would be minded to make an order extending the time for him to apply for prerogative relief.  However, it seems to me this is the least of the applicant’s problems.

11                  On 10 November 2003, the matter was transferred to the New South Wales Registry of the Court.  It was allocated to my docket. 

12                  On 10 February 2004, the Minister filed an amended notice of motion seeking summary dismissal of the application upon one or more of the following grounds:

            (a)        res judicata applies as a complete bar to the application; 

(b)        the Anshun estoppel principle applies and there are no special circumstances to justify its non-application;

(c)                pursuant to Order 20 rule 2(1)(c) of the Federal Court Rules, the proceeding is an abuse of process of the Court; and

(d)               pursuant to Order 10 rule 7(1)(a) of the Federal Court Rules, the applicant has failed to comply with the orders made on 16 June 2003.

The last mentioned ground is not made out.  However, it seems to me the other grounds are established in this case. 

13                  The essential problem confronting the applicant is that the jurisdiction he seeks to invoke in the present proceeding is the same jurisdiction that he invoked in the earlier proceeding.  As I have mentioned, the previous application, that was made to this Court and remitted to the Federal Magistrate’s Court, was made under s 39B of the Judiciary Act.  There was no limitation or qualification on the width of the jurisdiction which was invoked.  Section 39B(1) says that, subject to some immaterial exceptions:

‘[T]he original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.’

14                  Those words are almost identical to the words of s 75(v) of the Constitution; in other words, the claim that the applicant seeks to make in the current proceeding is a claim for relief identical to the claim that he unsuccessfully made in the earlier proceeding.  The difference between the two cases, according to Mr Burwood, is that the applicant now seeks to put a different argument to that considered and rejected by Raphael FM. 

15                  The argument seems to be that, on 3 December 2002, a different Tribunal member to the member who determined the applicant's case made a decision in relation to a claim by another Nepalese citizen who claimed to have been targeted by Maoists.  In that case, the Tribunal was not satisfied that the applicant had a right to enter and reside in India.   Consequently, the Tribunal held the claim for protection in Australia had been made out.  What Mr Burwood seeks to do in the present proceeding is to argue that the inconsistency between the two conclusions amounts to jurisdictional error. 

16                  There are considerable difficulties with that argument.  The two cases involved applications in respect of different people.  There must have been factual differences between the two claims.  What they were I do not know.  I do not have any information about the other case.  However, even if, on a fair view of the two cases, it is difficult to see the reason why one claim succeeded and the other failed, it does not follow that the conclusion in the present case was incorrect.  It is possible that the decision in the other case was incorrect, being unduly favourable to that applicant.

17                  Even if it be concluded that the present case was incorrectly decided, in regard to the applicant's entitlement to return to India, that would be a conclusion about the facts of the case.  I cannot see any basis upon which it can be said to involve jurisdictional error.

18                  It will be apparent that the argument sought to be made confronts significant difficulties.  However, I do not think it is appropriate to determine the present application by reference to those difficulties.  The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding.  It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced.   The principle of res judicata applies to this case. 

19                  If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle.  If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.

20                  The appropriate course is for me to accede to the application for summary judgment made by the respondent.  I refuse the relief sought in the applicant's notice of motion filed on 29 October 2003.  I dismiss the present principal proceeding with costs. 

Associate:

Dated:              26 March 2004