FEDERAL COURT OF AUSTRALIA

M153 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 422

M153 of 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID582 of 2004

RYAN J

15 APRIL 2005

MELBOURNE

On appeal from the Federal Magistrates Court

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs, including any reserved costs, to be taxed in default of agreement.

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

On appeal from the Federal Magistrates Court

REASONS FOR JUDGMENT

1                     This is an appeal from orders of Phipps FM on 28 April 2004 dismissing the appellant’s application for prerogative relief against the Refugee Review Tribunal (“the Tribunal”).  On 17 March 2005, I decided that Phipps FM had made a final order dismissing the application and not an interlocutory order refusing to grant the appellant an order nisi.  Accordingly, I held that the appellant had an appeal as of right from the orders of the learned Federal Magistrate.  In the reasons published on 17 March 2005 ([2005] FCA 251), I recounted the history of the various endeavours by the appellant to obtain a review of a refusal by a delegate of the respondent (“the Minister”) to grant him a protection visa.  Reference should be made to that part of my earlier reasons as if it were fully set out in the present reasons.

2                     Towards the end of the earlier reasons I indicated, at [16];

‘It follows similarly that no question of leave arises in the present case and that the appeal from the orders of the Federal Magistrates Court is as of right.  However, the appellant will still have to demonstrate, in the face of the order of Weinberg J of 15 March 2002 and the dismissal of an appeal from that order on 23 August 2002, why he is not precluded from obtaining in the proceedings instituted in the High Court, review of the Tribunal’s decision of 17 June 2002.  I shall adjourn the hearing of the appeal to 11 April 2005 when I shall receive submissions from the parties on that question and generally as to the disposition of the appeal from the Federal Magistrates Court.  …’

3                     Despite that indication, the appellant has not filed any further affidavits in support of the appeal.  Such material as he has filed has been prepared with the assistance of the Asylum Seekers Resource Centre but the appellant indicated at the hearing on 11 April 2005, when he appeared in person with the help of an interpreter, that the Resource Centre had insufficient legally qualified staff or volunteers to provide him with representation on the hearing of the appeal.

4                     It will be recalled that, in the summary in the earlier reasons of the appellant’s litigious history, I noted that he had made a previous application to this Court for review of the Tribunal’s decision.  That application was refused by Weinberg J on 15 March 2002 (VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 337).  An appeal from that order was dismissed by a Full Court of this Court on 23 August 2002 (VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 252).  The appellant sought, on the hearing of the present appeal, to explain those reverses by saying that he had been in immigration detention at the time and had no legal representation before Weinberg J.  He also claimed to have been similarly deprived of legal advice and representation in respect of the appeal from Weinberg J.  However, he acknowledged, when reminded of it by Mr Mosby, the solicitor for the Minister, that he had been represented on the appeal on a pro bono basis by Mr Nathan Moshinsky QC.  Nevertheless, the appellant contended on the hearing on 11 April that he had suffered an injustice as a result of the hearing before Weinberg J and pressed the Court to make a direction that he be provided with pro bono legal assistance to prosecute the current appeal.  He claimed to have new facts which, with appropriate legal assistance, he could put before the Court. 

The previous proceedings

5                     In his reasons for judgment, sub nom VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 337, Weinberg J noted that the Court’s jurisdiction to review the decision of the Tribunal arose solely under s 39B of the Judiciary Act 1903 (Cth).  His Honour then reached these conclusions;

‘12       The applicant did not advance any arguments in oral submissions before this Court which took his submissions before the RRT any further.  He identified two matters which he claimed the RRT had failed to consider.  It was pointed out, however, by counsel for the respondent, that in fact the RRT had referred to each of those two matters in terms. 

13        The applicant also ascribed to the RRT an error relating to a photograph which was said to depict him wearing traditional dress, and holding traditional musical instruments.  He claimed that he did not appear in that photograph, and that he had not claimed that did, to the RRT.  That may be so, but it goes nowhere near raising an error of a kind which might give rise to a “jurisdictional error” in the sense described in Craig v South Australia (1995) 184 CLR 163 at 177-179. 

14        The applicant’s case, put simply, is that the RRT erred in failing to accept his evidence that he had been threatened.  It was plainly open to the RRT to reject that evidence.  There is nothing to suggest that the RRT’s decision was not made as part of a bona fide attempt to exercise its power, that it did not relate to the subject matter of the Act, or that it was not reasonably capable of reference to the power conferred upon it.  Manifestly, that decision did not violate any constitutional or other inviolable limitation upon the powers of the RRT.  Nor did it involve any finding as to a "jurisdictional fact” which could be impugned.  It follows that no error of the type necessary to attract relief under s 39B of the Judiciary Act has been demonstrated.  Accordingly, the application must be dismissed.’

6                     On appeal from that judgment, the Full Court (Marshall, North and Finkelstein JJ) noted that Counsel for the appellant had mounted a different case from that raised by the appellant when he had appeared in person at first instance.  The Full Court continued, at [15]-[17];

‘15       ... … The new ground was that the RRT’s decision was tainted with jurisdictional error because the RRT failed to show certain material to the appellant which was adverse to his claim for a protection visa. That material was said to be:

·                 a departmental submission that the appellant had knowingly participated in a scam to enter Australia as part of a bogus Sri Lankan dance group;

·                 a photo, including the appellant, of the dance group with its members wearing traditional dress and holding traditional instruments.

It was contended that by failing to advise the appellant of the submission and the photo the RRT had denied him procedural fairness. Reliance was placed on the recent judgment of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 [(2002) 76 ALJR 966;  (2002)190 ALR 601].

16        In Muin certain material adverse to the refugee claimant was received by the RRT after the delegate’s decision the content of which was not communicated to Mr Muin so that he was not able to make a submission about it.

17        The High Court had jurisdiction to deal with the claim of denial of procedural fairness under s75(v) of the Constitution. That jurisdiction was not then available to this Court. In Muin the proceedings were brought within the High Court’s original jurisdiction; see per Gaudron J at [44]. Relief was sought “by way of constitutional writ pursuant to s75(v) of the Constitution.” (see per Gaudron J at [45]).’

7                     After observing that, by majority, a five member Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; (2002) 193 ALR 449 had “held that a denial of procedural fairness is not subject to challenge by way of judicial review to this Court in respect of decisions made after the enactment of the 2001 Act, but prior to the enactment of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)”, the Full Court in VAAR continued, at [20];

‘It follows that the appellant’s claim that he had been denied procedural fairness is not a basis upon which the RRT’s decision could be set aside.  In any event, it is clear that the RRT has not erred in the manner alleged.’

8                     The Full Court then set out various passages from the reasons of the Tribunal and concluded that it had not taken into account in any adverse way the appellant’s appearance in a group photograph of the supposed dance troupe.  It further held that, even if that conclusion were wrong, it was unlikely that the Tribunal had erred in failing to give the appellant advance notice that it intended to take into account his role in the so-called “scam”.  Finally, it was held that the Tribunal, in reaching its decision, had not taken into account the appellant’s appearance in the photograph.  No question therefore arose as to whether the appearance in the photograph would have been an irrelevant matter so that taking it into account would constitute jurisdictional error.

Disposition of the present appeal

9                     Although the conclusion of the majority of the Full Court in NAAV was not followed by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003)211 CLR 476, that did not invalidate the reasoning of the Full Court in VAAR in support of its view that the present appellant had not been denied natural justice and that the Tribunal had not taken into account an irrelevant consideration.  In the reasons for judgment below, Phipps FM found that the case which came before the Federal Magistrates Court (on remitter from the High Court) “is exactly the same” as that which had been put before Weinberg J or on appeal in the earlier proceedings in this Court.  No challenge to that finding has been made on the present appeal.  Moreover, an examination of the grounds invoked by the appellant when he initiated the present proceedings in the High Court (which are set out at [2] of my earlier reasons herein) bears out the Minister’s contention that no issue has been raised in the present proceedings which was not canvassed, or could not have been raised, when the original application for review of the Tribunal’s decision was before this Court. 

10                  The fact that the present proceedings have been initiated in the original jurisdiction of the High Court under s 75(v) of the Constitution whereas the earlier proceedings in this Court had been brought under Pt 8 of the Migration Act 1958 (Cth) does not render inapplicable the doctrines of res judicata, issue estoppel and what is called Anshun estoppel.  As Merkel J pointed out in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, at 691 [63];

‘63       Section 75(v) gives a right to jurisdiction only, not a right to the specified remedies.  The remedies must be sought in public law.  The cause of action is firmly grounded in the pre-existing substantive law.  While certain common law grounds of review remain open under s 75(v), the grounds available under Pt 8 of the Act to impugn a decision of the RRT require that, in general, the entitlement to relief is to be determined by the same principles of substantive law as are applicable to an action under s 75(v).  Relevantly, for present purposes the jurisdictional error upon which the applicants are entitled to succeed arises on the basis of the same substantive law that is applicable in the proceeding under s 75(v).  Thus, while there need not be a coincidence of causes of action in all cases, in the present case the same cause of action is relied upon in the two proceedings.

64        This co-incidence is, in a sense, dictated by the orders of Hayne J remitting to the Federal Court that part of the matter in which the grounds of relief sought reflected grounds under Pt 8 of the Act (in accordance with the limitation of the Federal Court’s power to review under s 485(3)) and otherwise adjourned the application, in respect of any wider grounds, to a date to be fixed.  Thus, his Honour’s order ensured that the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8.

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 respect.  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.’

11                  Those observations can be paraphrased to apply with equal force to the present case.  The right to relief which the appellant has invoked, and had to invoke, in the High Court was exactly the same as the right on which Weinberg J, and later the Full Court, had adjudicated in this Court.  The same factual circumstances attended both sets of proceedings which are in substance the same.  The right to relief in each proceeding was informed by the same substantive law principles and the parties are identical.  Accordingly, the order of dismissal by the Full Court on 23 August 2002 finally determined the issue of whether the Tribunal had committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Refugees’ Convention to the fear of persecution asserted by the present appellant.

12                  It therefore follows that the appellant is precluded by res judicata or issue estoppel from pursuing essentially the same grounds of review as were denied to him by the dismissal of his appeal to a Full Court of this Court on 23 August 2002.

Conclusion

13                  For the reasons which I have endeavoured to explain, the learned Federal Magistrate was correct in refusing to entertain the later application remitted to that Court.  (I interpolate that had Hayne J been apprised of the full litigious history since the Tribunal’s decision and the fact that the appellant was unable to mount a true Muin case, it is most unlikely that his Honour would have made the order of remitter which he did.)  It follows that the appeal must be dismissed with costs.

Associate:

Dated:              15 April 2005