FEDERAL COURT OF AUSTRALIA

S307/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 650

MIGRATION – application for review of decision of Refugee Review Tribunal – doctrine of res judicata

Held: the applicationis barred by the doctrine of res judicata, as it seeks review of a Tribunal decision that was the subject of a previous judicial review application by the applicants and the facts giving rise to the right of review and the grounds of review are the same

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Blair v Curren (1939) 62 CLR 464 referred to

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to

Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406referred to

S307/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2454 OF 2003

TAMBERLIN J

SYDNEY

30 MAY 2006

THE COURT ORDERS THAT:

1.                  The application for an order nisi is dismissed.

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

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

REASONS FOR JUDGMENT

background

1                     The two applicants, a mother (“the applicant”) and her son, are citizens of India.  They arrived in Australia on 18 July 1997 and lodged a combined application for protection visas with the Department of Immigration and Multicultural Affairs on 24 December 1997.  On 8 April 1998, the applications were refused by a delegate of the Minister.  The applicants sought review of that decision before the Refugee Review Tribunal (“the Tribunal”) on 4 May 1998.  On 27 March 2000, the Tribunalaffirmed the decision of the delegate.

2                     The applicant then applied to the Federal Court for judicial review of the decision of the Tribunal.  That application was heard by Moore J on 7 September 2000.  Both the applicant and the respondent were represented by counsel at the hearing.  On 5 October 2000, Moore J dismissed the application and ordered the applicant to pay the costs of the respondent.   

3                     On 17 June 2003, the applicant filed an application in the High Court of Australia for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of the decision of the Tribunal.  The applicant supported her application for an order nisi by an affidavit sworn by her on 16 June 2003.

4                     The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal (2002) 190 ALR 601.

5                     By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing.  The applicant was invited to file written submissions on the question of whether the Court should make an order nisi.  Written submissions were filed by the applicant on 10 December 2004.

6                     I propose to deal with this application on the papers.

discussion

7                     Res judicata arises where a cause of action relied on in proceedings has, in former proceedings, passed into judgment so that it has merged and has no longer an independent existence: see Blair v Curren (1939) 62 CLR 464 at 532 per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ (Anshun).  The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: see Anshun at 612-3 per Brennan J.

8                     The question to be determined on a plea of res judicata is whether the cause of action relied upon in the proceedings in which the plea is raised is the same cause of action which has been determined in the earlier proceedings.  In determining that question, the Court will have regard to the substance rather than the form of the proceedings: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510).

9                     In the draft order nisi, the applicants claim that the Tribunal failed to afford them natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at the hearing or an adequate opportunity to respond to unfavourable material.  In her supporting affidavit, the applicant does not give any particulars of the material that she wished to present to the Tribunal or the unfavourable material that she did not have an opportunity to respond to.  There is no evidence before me that would support the applicant’s claim that she was denied natural justice.

10                  The submissions filed by the applicant on 10 December 2004 raise a number of grounds of review.  First, the applicant submits that the Tribunal erred in failing to determine whether, on the totality of the facts found, she had a well-founded fear of persecution.  Secondly, it is argued that the Tribunal misunderstood the elements of the definition of a refugee under the Convention which were supported by the facts of the case.  Thirdly, the applicant says that the Tribunal erred in finding that women in India and/or Sikh women did not constitute a social group for Convention purposes.  Fourthly, the applicant claims that she was denied procedural fairness as the Tribunal forced her to attend the hearing despite the fact that she had informed it of her psychological condition.  Finally, the applicant made a number of claims regarding the merits of the decision of the Tribunal.  In particular, the applicant says that the Tribunal did not realise that she suffered because of her husband’s involvement in the Sikh movements and that she has a fear of harm by the Indian police authorities, who have provided her with no protection.

11                  The grounds of review before Moore J were, in substance, the same as the first and third grounds outlined in the applicant’s written submissions in the present case.  These grounds are set out in the judgment of Moore J at [10]:

“In the proceedings in this Court, counsel for the applicant pressed two grounds of review. First, it was argued that the Tribunal failed to determine whether, on the totality of the facts as found, the applicant had a well-founded fear of persecution.  Second, it was said that the Tribunal erred in finding that women in India, or Sikh women, did not constitute a particular social group.  Each of these errors was said to constitute an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts, and thus to amount to errors of law pursuant to s 476(1)(e) of the Migration Act 1958 (Cth).”

12                  The judgment and orders of Moore J were final and resolved a controversy between the applicant and the Minister.  Accordingly, the doctrine of res judicata applies to the present application because, in substance, it seeks review of the same Tribunal decision that was the subject of the applicant’s previous judicial review application.  The facts giving rise to the right to review are the same and the grounds of review are the same.  The right to relief in each case is informed by the same principles of substantive law and the proceedings do not differ in any material respect.

13                  I have considered the reasons for decision of the Tribunal and can see no reviewable error of principle or law which would warrant further consideration of the applicants’ case.

14                  The application for an order nisi should therefore be dismissed with costs.

Associate:

Dated:              30 May 2006