FEDERAL COURT OF AUSTRALIA

NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975

MIGRATION – third application for review of Refugee Review Tribunal decision; whether precluded by res judicata, issue estoppel and/or Anshun estoppel; appeal from summary dismissal by Federal Magistrates Court of third application as an abuse of process.

Constitution of the Commonwealth of Australia s 75(v)

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) s 24(1)(d), 24(1A)

Federal Magistrates Act 1999 (Cth)

Federal Magistrates Court Rules 2001 R 13.10(c)

Migration Act 1958 (Cth) s 36, 45-7, 65-6, 411-2, 425-6, 430-1

Federal Magistrates Service Legislation Amendment Act 2001 (Cth)

Shergold v Tanner (2002) 209 CLR 126 referred to

Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 referred to

Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 referred to

MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 referred to

Warren v Coombes (1979) 142 CLR 531 referred to

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 referred to

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 referred to

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 cited

Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222 referred to

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 referred to

Blair v Curran (1939) 62 CLR 464 referred to

Henderson v Henderson (1843) 3 Hare; 67 ER 319 cited

BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 referred to

SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 referred to

NADZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 834/2005

GRAHAM J

15 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal from the orders of Smith FM of 27 May 2005 in Matter No. SYG 770 of 2005 in the Federal Magistrates Court be dismissed.

2.         The Appellant pay the Respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

1                     By virtue of amendments made to the Migration Act 1958 (Cth) (“the Act”) by the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) jurisdiction was conferred on the Federal Magistrates Court in respect of migration matters.

2                     By a Notice of Appeal filed 30 May 2005 the Appellant known as “NADZ” (“the Appellant”) has appealed from the whole of the judgment of a Federal Magistrate given on 27 May 2005 in respect of an Application filed by the Appellant in the Federal Magistrates Court on 30 March 2005.

3                     The Orders made on 27 May 2005 and entered on 10 June 2005 in the Federal Magistrates Court were as follows:

“THE COURT ORDERS THAT:

1.         The substantive application in these proceedings is dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules as an abuse of process of the Court.

2.         No further application for review of the Refugee Review Tribunal decision handed down on 23 October 2002, reference NOO-34587, shall be accepted for filing without the prior leave of the Court.

3.         The applicant to pay the respondents costs fixed in the sum of $3,900.00.”

4                     Rule 13.10 of the Federal Magistrates Court Rules 2001, made under the Federal Magistrates Act 1999 (Cth), confers, amongst other things, a power of summary dismissal upon the Federal Magistrates Court.   Rule 13.10 provides as follows:-

“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:

(a)       no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or

(b)       the proceeding or claim for relief is frivolous or vexatious; or

(c)        the proceeding or claim for relief is an abuse of the process of the Court.”

5                     On 21 June 2000 the Appellant made application to the then Department of Immigration and Multicultural Affairs for a “protection visa (866)”.  On 13 July 2000 the Appellant’s application for a protection visa (866) was refused and reasons were provided.  The conclusion which was reached was that the Appellant was not a person to whom Australia had protection obligations under the Refugees Convention, as there was not a real chance of persecution for a Convention ground if he was returned to Bangladesh and that his fear of persecution on return was consequently not well founded.  (See s 36, 45-47, 65-66 of the Act.)

6                     On 2 August 2000 an application was made by the Appellant to the Refugee Review Tribunal (“the Tribunal”) for a review of the abovementioned decision.  (See s 411-412 of the Act.)

7                     The Appellant was given notice that his application for review would be heard by the Tribunal on 27 September 2002.  (See s 425-426 of the Act.)

8                     The Appellant duly appeared before that Tribunal and presented his case, the hearing occupying a little over an hour and a half.  On 23 October 2002 the Tribunal constituted by Ms J Morris handed down its decision.  That decision dated 27 September 2002 was that the decision not to grant a protection visa should be affirmed (s 430-431 of the Act).

9                     By an application for review filed 11 November 2002 (“the first application”) in this Court the Appellant sought a review of the decision of the Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Order 54 of the Federal Court Rules (see Shergold v Tanner (“Shergold”) (2002) 209 CLR 126 at p 138 [41]).  That application specified as the grounds for review the following:-

“(a)     The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958.  Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Moin, Lee’s case).

(b)       The RRT decision was affected by an ‘Error of law’ and ‘Jurisdictional error’.

(c)        There was no evidence or other material to justify in making of the decision.”

10                  The outcome of the first application did not accord with the objectives of the Appellant.  In the circumstances the Appellant (therein referred to as “SQWB”) filed another application in the South Australian District Registry of this Court on 1 July 2003 (“the second application”).  The second application also sought a review of the decision of the Tribunal under  s 75(v) of the Constitution  and s 39B of the Judiciary Act (see Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 at p 178; Shergold at [41]).  The grounds relied upon in the second application were as follows:-

“1.       That a breach of the rules of natural justice occurred in connection with the making of the Decision.

2.         That the Applicant was denied procedural fairness in connection with the making of the Decision.

3.         That the Decision involved an error of law, whether or not the error appears on the record of the Decision.

4.         That procedures that were required by law to be observed in connection with the making of the Decision were not observed.

5.         That the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

6.         That there was no evidence or other material to justify the making of the Decision.

7.         That the Decision was otherwise contrary to law.”

11                  On 29 October 2003 Mansfield J ordered the Appellant to file and serve a number of documents in respect of the second application by 25 November 2003.  Those orders were not complied with, whereupon Selway J dismissed the second application for failure to comply with the orders made on 29 October 2003.  His Honour also ordered the Appellant to pay the Respondents’ costs.

12                  On 1 March 2004 the Appellant (therein referred to as “SQWB”) filed an application for special leave to appeal to the High Court of Australia from the judgment of Selway J.

13                  The application for special leave to appeal specified the following grounds:-

“1.       The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act.  The tribunal’s decision and its findings was contradicting independent evidence constitutes jurisdictional error, error of law and breach of procedural fairness.  (Muin Vs Refugee Refugee Tribunal, Lie Vs Refugee Review Tribunal)

2.         The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness, as required under section 424A of the Migration Act 1958.”

14                  Not surprisingly, on 3 March 2005 the Appellant filed a Notice of Discontinuance in respect of the application for special leave to appeal.

15                  Undeterred by the history of his applications, the Appellant (therein referred to as “NADZ”) proceeded to file yet another application in respect of the decision of the Tribunal, this time in the Federal Magistrates Court of Australia, on 30 March 2005 (“the third application”) seeking relief under s 39B of the Judiciary Act 1903 (Cth).

16                  The grounds specified in the third application were as follows:-

“a)      The decision of the Refugee Review Tribunal (the tribunal) is not a decision made under the Migration Act 1958 (the Act).  The decision of the tribunal is affected by jurisdictional error.  The decision of the tribunal is affected by a constructive failure to exercise jurisdiction.  That tribunal made a mistake in determining the limits of its jurisdiction.

b)         The tribunal misconceived the duty it was under when it is reasoning its satisfaction in regards whether or not a protection visa is to be granted under s 65(1) of the Act.  The tribunal duty breached the judicial duty to make or apply a finding of law using formal logic.  The tribunal failed to act judicially.  The tribunal exercised judicial power in a manner reserved for the exercise of executive power.

c)         The tribunal did not maintain a separation between its judicial and executive exercises of power.  A breach in the judicial duty to use formal logic is a breach of the rule of law on the grounds of arbitrariness.  The tribunal did not uphold the rule of law.  The tribunal acted unconstitutionally.”

17                  These grounds could be described as colourful, if not meaningless, legalese.  Much the same could be said in respect of the particulars provided in the third application which bear little, if any, relationship to the grounds themselves.  Those particulars were as follows:-

“PARTICULARS:

In regards to the applicant’s claim for a protection visa:

(a)       There was a fallacy of formal logic in the finding at law by the tribunal as to the availability of protection to the applicant from persecution for political opinion through the courts of Bangladesh and subsequently the finding in law that the applicant did not have a well founded fear of being persecuted.

(b)       The fallacy arises from an invalid inference pattern that is described in terms of formal logic.

c.         The fallacy of sentential logic occurs when the tribunal denies the antecedent such that it held:

(i)        If the applicant was found or will be in future found guilty by the courts then the applicant committed the crimes charged of him; the applicant was found guilty by the courts and in the future may or may not be found guilty by the courts.  Therefore, the applicant is to be tried by the courts in order to determine whether or not he committed the crimes charge of him.

(ii)       The antecedent denied is the persecution of the applicant by the courts for his political opinion.

d.         The fallacy of syllogistic logic occurs when the tribunal fails to understand that from two particular premises nothing follows such that it held:

(i)        Some prominent and high-level ranking members of the Party are able to defend themselves before an independent judiciary.  The applicant is low-level member of the Party.  Therefore, the applicant will not be able to defend himself before an independent judiciary.

(ii)       In so doing the tribunal made errors of distribution and not having the conclusion follow the weaker premise.

(iii)      The above conclusion was a breach in the judicial duty to use formal logic is a breach of the rule of law on the grounds of arbitrariness.”

18                  On 28 April 2005 the First Respondent to the third application filed a notice of motion seeking the following orders:-

“1.       That the application for judicial review filed on 30 March 2005 be dismissed on the grounds that:

(a)        The doctrine of res judicata applies and is a complete bar to the application.

(b)        The doctrine of issue estoppel applies and is a complete bar to the application.

(c)        Anshun estoppel applies and there are no special circumstances to justify its non-application.

(d)        Pursuant to Part 13, Rule 13.10( c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.

2.         That the applicant pays the respondent’s costs on an indemnity basis.

3.         That the applicant not file another application in the Federal Magistrates Court seeking review of the Refugee Review Tribunal decision handed down on 23 October 2002 without leave of the Court.

4.         Any other order that the Court sees fit.”

19                  The problem confronting the Appellant in the proceedings before the Federal Magistrates Court and on the current appeal is that Hely J decided the first application adversely to the Appellant and ordered that the application be dismissed with costs on 28 February 2003. 

20                  The Appellant lodged an appeal from the judgment of Hely J on 17 March 2003 the nominated grounds of appeal being:

“2.       His honour failed to find denial of natural justice and procedural fairness made by the RRT.

3.         Tribunal did not consider any supporting documents in relation to my protection visa claim.”

21                  This appeal was also the subject of a Notice of Discontinuance filed in this Court on 30 June 2003.

22                  From the foregoing it can readily be seen that the Appellant has sought to challenge the decision of the Tribunal handed down on 23 October 2002 on three separate occasions and is simply not willing to accept the “umpire’s decision”.

23                  The issues raised by the third application were all either dealt with by Hely J in his reasons for judgment in respect of the first application or issues that properly belonged to the subject of the earlier litigation and which the Appellant exercising reasonable diligence, might have brought forward on the hearing of the first application.

24                  In his reasons for judgment Hely J said:-

“6.       The grounds on which relief is sought do not appear with any clarity from the application.  The applicant lodged written submissions dated 18 February 2003 in support of his application.  Those submissions are twelve pages long, and have been placed with the papers. …

7.         … Paragraphs 3 – 13 appear to invite a merits review of the RRT’s decision, which this Court is not entitled to undertake.

8.         Paragraph 14 asserts a belief on the part of the applicant that the decision of the RRT was otherwise than a bona fide attempt to exercise its power.  This assertion is not particularised, nor is it made out.  In oral submissions the applicant complained that the RRT did not investigate all of the papers properly.  However, the substance of the applicant’s complaint appears to be that the RRT did not accept as genuine documents which, if authentic, may have supported the applicant’s claim.

9.         Paragraphs 15 – 22 of the applicant’s written submissions allege a failure to follow proper procedures, and that the RRT denied the applicant procedural fairness in a manner akin to that found in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966.

…

14.       As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at par [24] … Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention.  The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness.

…

17.       … There is no evidence that the applicant was in any way misled by the communications from the RRT, hence there are no facts established in the present case which could conceivably give rise to a finding of a want of procedural fairness.

18.       There was a second element of want of procedural fairness in Muin, inasmuch as Mr Muin was not made aware of the substance of unfavourable documentary information received by the RRT after the delegate’s decision.  It was established that he would have conducted his case differently had he been aware of that information.  A denial of procedural fairness was established in that respect as well.

19.       In the present case, the applicant’s written submissions only rely upon a denial of procedural fairness in the first of the ways considered in Muin.  Nothing was put in the written submissions or orally, which could conceivably establish a want of procedural fairness by reason of any supposed failure to alert the applicant to the substance of any documentary information which would be adverse to the applicant’s case.  The documentary information in the possession of the RRT which was adverse to the applicant’s case was information in relation to document fraud.  That information was specifically communicated to the applicant at the hearing, and his comments on that information invited.

20.       Paragraphs 23 – 28 of the applicant’s written submissions allege jurisdictional error on the basis that the RRT ignored relevant evidence.  Whilst the submission asserts that the RRT ignored relevant evidence, that evidence is not identified in the written submission, nor was it identified orally.  The applicant’s claim was rejected because the RRT did not believe the applicant, primarily because of inconsistencies in his story, and because it did not accept as genuine documents which he produced.  That does not mean that the RRT “ignored” these matters.

…”

25                  In the foregoing circumstances the Federal Magistrates Court was required to consider the First Respondent’s application for summary dismissal filed by the Respondent on 28 April 2005.  As indicated above the Federal Magistrates Court decided the matter adversely to the Appellant on 27 May 2005.

26                  The grounds of appeal specified in the Notice of Appeal to this Court filed 30 May 2005 are as follows:-

“1.       The FM failed to consider the issue rose in this application previously bought against the tribunal.  ‘an error of law, procedural mistakes and denial of natural justice by not accepting any oral evidence and supporting documents’.  The tribunal misconceived the duty it was under when it is reasoning its satisfaction in regards whether or not a protection visa is to be granted under s 65(1) of the Act.

2.         The tribunal exceed its jurisdiction, in failing to consider procedural fairness as required under section 424A1 of the Migration Act 1958.  Further, the tribunal did not maintain a separation between its judicial and executive exercise of its power.

3.         The tribunal denied procedural fairness and therefore committed Jurisdictional error at the time of deciding this matter before the tribunal and Federal Magistrates Court by the honourable FM.”

27                  It is clear that the Appellant is unwilling to accept that he has had his day in Court and lost.  He fails to accept that the law in this country does not allow limitless attacks on the same Tribunal decision.

28                  The current appeal from the decision of the Federal Magistrates Court is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

29                  Given that, as a matter of reality, the orders made by the Federal Magistrates Court finally disposed of the rights of the parties, it seems clear that the decision of the Federal Magistrates Court should not be treated as an interlocutory judgment within the meaning of s 24(1A) of the Federal Court of Australia Act.  Accordingly, leave to appeal was not required (see Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 at p 37-38; see also MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs (“MZWHW”) [2005] FCA 466, Kenny J 20 April 2005 at [6]; cf Re Luck (2003) 203 ALR 1).

30                  Plainly an attempt to re-litigate an issue which is res judicata or one which is affected by issue estoppel or by “Anshun” estoppel would constitute an abuse of process of the court in respect of which an order could be made under Rule 13.10(c) (See Port Melbourne Authority (No. 1) at pp 37-8.)

31                  Given that the current appeal is an appeal by way of rehearing to which the principles enunciated in Warren v Coombes (1979) 142 CLR 531 apply (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 533 [75]) the question for determination is whether the issues raised in the third application are the subject of res judicata, issue estoppel or “Anshun” estoppel (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (“Wong”) (2004) 204 ALR 722; [2004] FCAFC 242. An application for special leave to appeal from the Full Court’s judgment was refused on 4 February 2005).  If the latter, has the appellant established that there were special circumstances as to why issues which he now wishes to raise were not canvassed, if that be the case, at the hearing of the first application before Hely J.

32                  In Wong the Full Court comprising Emmett, Conti and Selway JJ stated the relevant legal principles at [36] – [39] as follows:-

‘THE RELEVANT LEGAL PRINCIPLES

36.       The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’).  It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court.  Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter.  The resources of the community ought not to be expended in the litigation, more than once, of the same issue.

37.       A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation:  Port of Melbourne Authority v Anshun Pty Ltd [No 2] (1981) 147 CLR 589 at 598 and 602.  Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding.  In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties:  Anshun supra at p602

38.       Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis).  As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding.  The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding:  see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558.  However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’ : see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30].  What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.

39.       Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J.  However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.”

33                  Later, their Honours found that a failure by the Minister to comply with an obligation under the Act, which was based upon a mistaken view of the Act and was not contumelious, did not constitute “special circumstances” which would take a case outside the principle of “Anshun” estoppel even though the legislative policy reflected in the relevant provision of the Act was frustrated as a consequence.  At [52]-[53] they said:-

“52.     … If it were the case that a failure by a Minister to comply with a positive duty constitutes ‘special circumstances’ then it would seem every such failure would be sufficient to invoke the special circumstances exception, requiring the full ventilation of argument on the issue that would otherwise be estopped.  Those circumstances alone, do not constitute the requisite special circumstances, such that it would not be an abuse of process for Mr Wong to ventilate issues that it was unreasonable for him not to have raised in either the First Proceeding or the Second Proceeding.

53.       …

… There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the Executive Government and its representatives, but only to individuals.  This is because the Executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be ‘vexed’ in the same way by instigation of subsequent proceedings.  That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the Executive Government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate.  However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action (at [39] above).”

34                  The question in respect of res judicata is whether the cause of action in the third application is the same cause of action that was determined by Hely J in the first application.  In determining that question the Court should focus on the substance of the two proceedings, rather than their form (per Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (“Thayananthan”) (2003) 132 FCR 222; see also Somanader v Minister for Immigration and Multicultural Affairs (“Somanader”) (2000) 178 ALR 677 at p 688 [45-52]).

35                  Issue estoppel will arise where for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by a prior judgment, decree or order (per Dixon J in Blair v Curran (“Blair”) (1939) 62 CLR 464 at 532).  A judicial determination concludes not merely the point actually decided but also the matter which it was necessary to decide and which was actually decided as the groundwork for the decision itself, though not then directly the point in issue.  Matters cardinal to a later claim or contention cannot be raised if to raise them would necessarily involve an assertion that the judicial determination previously made was erroneous.  However matters of law or fact which are subsidiary or collateral are not covered by issue estoppel.  Findings which concern only evidentiary facts and not ultimate facts forming the very title to rights are not affected.  Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation (see Blair at p 532-3).

36                  Unlike res judicata, issue estoppel may arise when the cause of action in each proceeding is entirely different (per Merkel J in Somanader at p 692 [69]).

37                  As indicated in Wong at [37], “Anshun” estoppel occurs when an applicant puts forward in a later proceeding matters which might have been put in the earlier proceeding.  In Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER at p 319) Sir James Wigram VC expressed the principle in these terms:-

“where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.”

38                  What may come within the “special circumstances” exception to a finding of “Anshun” estoppel was dealt with by the Full Court in Wong.  Those circumstances need to be “exceptional”:  (see also BC v Minister for Immigration and Multicultural Affairs (“BC”) [2002] FCAFC 221 at [31] – [33] and [38] and Thayananthan at p 237[52] – [53].)  No circumstances such as those which prevailed in BCwere or could be called in aid by the Appellant in the present case.

39                  In his Reasons for Judgment Hely J drew attention to the conclusions reached by the Tribunal.  Amongst other things the Tribunal found that the Appellant’s claims and evidence were filled with implausibilities, contradictions and inconsistencies.  The Tribunal was not satisfied that he was a reliable witness.  It was not satisfied that the Appellant’s fear of persecution for a Convention reason was well founded.

40                  As Hely J observed, the grounds on which relief was sought in the first application did not appear with any clarity from the application itself ([2003] FCA 118 at [6]).  His Honour pointed out that the Appellant had invited the Court to undertake a merits review of the Tribunal’s decision and pointed out that it was not entitled to do so [at 7].

41                  His Honour rejected a submission that the Tribunal’s decision was otherwise than a bona fide attempt to exercise its power [at 8].

42                  After considering the evidence His Honour found that there were no facts established on the hearing of the first application which could conceivably give rise to a finding of a want of procedural fairness [at 17].

43                  In written argument filed in the current appeal on 4 July 2005 the Appellant used a series of catch phrases such as “natural justice”, “procedural fairness”, “bias”, “error of law”, “new grounds” and “improper exercise of power”.

44                  In his oral submissions the Appellant submitted that he had a “new ground” which I understood to be to the following effect.  He urges that he had been sentenced to a term of imprisonment, that under section 494 of a Bangladesh Criminal Act the government could excuse or pardon the punishment of a criminal, that he had made an appeal to the government of Bangladesh for a release but the government had rejected his application.  It is difficult to see how this could constitute a proper ground for attacking the Tribunal’s decision.

45                  In both his written and oral submissions the Appellant sought to raise a collateral attack on the correctness of the Tribunal’s decision.  He gave very limited attention to the issue as to whether or not his case was one to which the principles of res judicata, issue estoppel and/or “Anshun” estoppel applied in the circumstances.

46                  In his written argument the Appellant said:-

“5.       That the judicial application was not bar by the historical Res Judicata Doctrine.  I filed judicial the review application to the FM Court which … was based on new grounds.”

47                  As to whether the third application constituted an abuse of process the Appellant submitted that he did not abuse anything and did not violate any law.  He says that he filed the third application on a new ground.  He submitted that if it would have been an abuse of process then the Registrar would not have allowed him to file his case.  Accordingly, he submitted that there was no abuse of process.

48                  The Appellant said that he did not accept the judgment of the higher court.  If he had accepted it, he would not have made the third application.  The Appellant submitted that the Federal Magistrate who granted the Respondent’s application for summary dismissal was wrong because it denied him a final hearing.  The Appellant said that accordingly he had come before this Court for “justice”.  The Respondent Minister has submitted that the Federal Magistrate’s decision was “plainly right” for the reasons which he gave.

49                  Other cases to which I was referred in which a similar approach was adopted to that taken by the Federal Magistrate in this case were MZWHW, Somanada, Thayananthan and Wong.

50                  The Federal Magistrate considered that the third application was precluded by res judicata and issue estoppel and insofar as it may have sought to raise other issues was precluded by “Anshun” estoppel.  Accordingly he found the third application to constitute an abuse of process and dismissed it, pointing out that the Appellant had not put forward any evidence or argument that he could not reasonably have raised in his previous litigation.

51                  Notwithstanding the difficulty that one has in identifying the issues sought to be raised by the third application having regard to the grounds identified, it seems to me that the Federal Magistrate was correct in deciding that the arguments sought to be raised were precluded by the principles of res judicata, issue estoppel and, to the extent to which the Appellant may have wished to raise a “new ground” or any other issues under the third application that had not been raised before, there was no matters that could not have been raised under the first application before Hely J.  His finding that the third application was an abuse of process of the Court and that the third application should be dismissed was correct.

52                  In relation to the order made by the Federal Magistrates Court that no further application for review of the Tribunal Decision should be accepted for filing without the prior leave of the Court, such an order was within power (see per Jacobson J in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581 at p 586 [27] and [29].

53                  Given the attempts of the Appellant to attack the correctness of the Tribunal’s decision on the numerous occasions referred to above, I agree that it was appropriate for the Federal Magistrate to make an order precluding the Appellant from filing any further applications for review of the Tribunal’s decision.

54                  For the foregoing reasons I am of the opinion that the judgment appealed from should be affirmed.  The appeal should be dismissed with costs.

Associate:        

Dated:              15 July 2005