FEDERAL COURT OF AUSTRALIA

Kong v Minister for Immigration and Citizenship [2011] FCA 1345

THE COURT ORDERS THAT:

1.    The Notice of Appeal as filed on 9 August 2011 is dismissed.

2.    Pursuant to r 40.02(b) of the Federal Court Rules 2011, the Appellant is to pay the costs of the First Respondent in a lump sum of $5,590.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 25 August 2003 the Appellant, Mr Tian Le Kong, was granted a Subclass 574 Postgraduate Research Sector visa. But that visa was cancelled on 6 May 2004.

2    Review was sought and on 30 March 2005 the Migration Review Tribunal affirmed the decision. An application for review was dismissed by the Federal Magistrates Court in May 2006: Kong v Minister for Immigration [2006] FMCA 851. The Federal Magistrate concluded that “no ground establishing jurisdictional error has been made out”. An appeal to this Court was dismissed on 3 November 2006. A transcript of that occasion records the Appellant not “pressing” four of his grounds and conceding that “there are no grounds on the fifth ground of appeal”. An application for special leave to appeal to the High Court was dismissed: Kong v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 588.

3    Thereafter, in 2008, Mr Kong unsuccessfully applied for a Protection visa.

4    It was in 2011 that he turned his attention back to the Tribunal decision. Undeterred by the decisions of the Federal Magistrates Court and this Court, and the refusal by the High Court of Australia to grant special leave to appeal to that Court, on 9 May 2011 he filed another application for review to the Migration Review Tribunal. He contended that the Tribunal’s earlier decision had been “rendered invalid”. On 20 May 2011 the Tribunal, differently constituted, decided that it did not have jurisdiction. Review of that decision was sought and on 29 July 2011 the Federal Magistrates Court dismissed the application: Kong v Minister for Immigration and Citizenship [2011] FMCA 583.

5    A Notice of Appeal was filed in this Court on 9 August 2011.

6    The appeal is to be dismissed.

The Grounds of Appeal

7    The Grounds of Appeal were expressed as follows:

1.    The Federal Magistrate erred in finding that the Migration Review Tribunal had no jurisdiction to reopen its decision of 30 March 2005 in circumstances in which it was common ground that the decision affected by jurisdictional error as a result of the decision of the Full Federal Court in Dai v Minister for Immigration and Citizenship and Another (2007) 165 FCR 465.

2.    The Federal Magistrate erred in finding that the principle of issue estoppel operated in circumstances in which the issue of the validity of condition 8202 was not subject of the earlier proceedings before the Federal Magistrates Court and the Federal Magistrates Court made no determination as to the validity or application of the condition.

3.    The Federal Magistrate erred in failing to find that it was not unreasonable for the appellant not to have raised the issue as to the validity of condition 8202 in the earlier Federal Magistrates Court proceedings in circumstances in which the issue arose as a result of a later Full Federal Court decision.

4.    The Federal Magistrate erred in finding that the Migration Review Tribunal could not review the Delegate’s decision twice in circumstances in which the decision of 30 March 2005 was affected by jurisdictional error and did not constitute a valid review of the decision to cancel the appellant’s visa.

8    These Grounds of Appeal obviously directed attention, in one way or another, to whether the 30 March 2005 decision of the Migration Review Tribunal was a decision which precluded later reconsideration and whether the judicial review of the 30 March 2005 decision which was undertaken by the Federal Magistrates Court and this Court in 2006 precluded later judicial reconsideration.

9    The oral submissions advanced on behalf of Mr Kong thus focussed attention upon:

    the legal consequences following from the 30 March 2005 decision of the Migration Review Tribunal, with emphasis being placed upon concessions made on behalf of the Respondent Minister;

    the doctrine of res judicata; and

    Anshun estoppel.

Reservation may be expressed as to whether res judicata would preclude success on the part of Mr Kong. But it has been separately concluded that the appeal is to be dismissed by reason of what is now known as Anshun estoppel. The Federal Magistrate was correct in so concluding.

The Two Decisions of the Tribunal

10    At the heart of the Appellant’s case is reliance upon Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 and a submission that the first decision of the Migration Review Tribunal was affected by jurisdictional error.

11    In Bhardwaj the Immigration Review Tribunal was hearing an appeal from a decision of the Minister’s delegate cancelling a student visa. The Tribunal had proceeded to hear and affirm a decision in ignorance of a letter which had been received the day before requesting a later hearing date because of illness. The letter was then brought to the attention of the Tribunal and the Tribunal held a further hearing at which it revoked the delegate’s decision cancelling the visa. The Minister sought review. At first instance and on appeal to the Full Court the Minister was unsuccessful. Special leave to appeal to the High Court was granted. It was there concluded that the Tribunal had power to make the second decision. On the approach of Gleeson CJ, the Tribunal had set out to – but had failed to – give Mr Bhardwaj an opportunity to be heard. The former Chief Justice reasoned as follows:

[14] … The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its “decision”, the Tribunal merely noted the delegate’s decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate’s decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.

[15] In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

Gaudron and Gummow JJ concluded that a decision affected by jurisdictional error is “no decision at all” and any duty to make a decision affected by such error “remains unperformed”. Their Honours set out the general principle as follows:

[53] … a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.

On either approach there was nothing stopping the Tribunal from later properly discharging the jurisdiction entrusted to it. McHugh J agreed with these reasons of Gaudron and Gummow JJ. Hayne and Callinan JJ also agreed that the appeal should be dismissed. Kirby J dissented.

12    The divergence in the reasons given for reaching the conclusion in Bhardwaj was reviewed by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1. The analysis undertaken by their Honours led them to conclude that “the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function”: at [40]. Their Honours continued: “All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition”. Their Honours’ helpful review of the judgments in Bhardwaj is clearly correct.

13    Bhardwaj does not stand for the proposition that jurisdictional error on the part of an administrative decision-maker always means that a decision is “no decision at all” or a decision without legal consequences: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] per Lander J (Mansfield and Siopis JJ agreeing); SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 at [26], 180 FCR 438 at 445 per Moore, Jagot and Foster JJ. The consequences of a decision affected by legal error, including jurisdictional error, are determined primarily by consideration of the statute pursuant to which a decision is made. See also: Jackson v Purton [2011] TASSC 28 at [49] to [87] per Wood J.

14    The basic principle established by this decision, albeit a decision itself necessarily confined to the specific statutory and factual context there in issue, has since been applied in a variety of different circumstances including decisions of this Court in respect to the Administrative Appeals Tribunal: e.g., Christiansen v Social Security Appeals Tribunal [2010] FCA 1146 at [68], 53 AAR 166 at 186.

15    Given that an administrative decision which is vitiated by jurisdictional error may not preclude the decision-maker from later making a decision in accordance with law, Counsel for Mr Kong set out to make good his contention that the decision of the Tribunal as first made in March 2005 was vitiated by jurisdictional error.

16    In doing so, reliance was placed upon Dai v Minister for Immigration and Citizenship [2007] FCAFC 199, 165 FCR 458 and Hossain v Minister for Immigration and Citizenship [2010] FCA 161, 183 FCR 157. Both decisions concerned the question whether a visa could be cancelled for a failure to comply with a condition said to be attached to the visa, namely condition 8202. Mr Kong maintains that his visa was cancelled in like circumstances. Just as in Dai, where it was concluded that the visa could not be cancelled, he now maintains that his visa was likewise invalidly cancelled. He maintains that the 30 March 2005 decision of the Migration Review Tribunal was vitiated by jurisdictional error.

17    The statutory scheme in which Mr Kong’s argument as to jurisdictional error is to be considered starts with s 116 of the Migration Act 1958 (Cth). That section confers a power on the Minister to cancel a visa if satisfied that “its holder has not complied with a condition of the visa”. Clause 2.43(2) of the Migration Regulations 1994 (Cth) further relevantly provides for present purposes that “the Minister must cancel … a Student (Temporary) (Class TU) visa [if] … satisfied that the visa holder has not complied with … condition 8202”. Condition 8202 relevantly provided as follows:

(1)    The holder … must meet the requirements of subclauses (2) and (3).

…

(3)    A holder meets the requirements of this subclause if:

…

(b)    in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i)    for a course that runs for less than a semester — for the course; or

(ii)    for a course that runs for at least a semester — for each term or semester (whichever is shorter) of the course.

18    In concluding that the power of the Minister to cancel the visa under s 116(3) was “not engaged” in Dai, North J reasoned as follows:

[17] Following from the language of cl 2.43(2), the Minister must cancel the visa holder’s visa if satisfied “that the visa holder has not complied with condition 8202”. Thus, the visa holder is the subject of the condition and it is the visa holder who must comply. Yet, when one turns to the condition about which the Minister had to be satisfied one sees that the condition required certification by the education provider that the academic result of the visa holder was at least satisfactory. The requirement imposed by the condition was certification of the academic result. This was to be the act of the education provider. The visa holder had no role to play in providing the certification.

…

[19] There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal.

[20] Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant’s visa under s 116(3) was not engaged.

Gyles J agreed with the orders of North J. In so concluding, His Honour observed in part:

[23] … Condition 8202 has attracted much litigation in its various forms. It has been described as “difficult to construe and apply” (Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at [49]). That is true of the form of the condition relevant to this case.

…

[34] … The validity of condition 8202 is affected by the conclusion I have reached. The disconformity between s 116(1)(b) (and reg 2.43(2)(b)), on the one hand, and condition 8202, subcl (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subcl (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subcl (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain.

Edmonds J dissented.

19    Before the Federal Magistrate the Respondent Minister conceded that the decision in Dai had the consequence that the Tribunal’s decision in the present proceeding was affected by jurisdictional error. It was further conceded that there were circumstances in which the Tribunal had power to re-open a decision affected by jurisdictional error.

20    Despite these concessions the Respondent Minister opposes the grant of relief in the present proceeding. The Minister contends that the decisions of the Federal Magistrates Court and this Court in respect to the judicial review of the first Tribunal’s decision constitute either:

(a)    a res judicata; or

(b)    an Anshun estoppel

which precludes any ability on the part of the Tribunal to re-open its earlier decision or entertain any subsequent application for review of the original decision of the Minister’s delegate. The Appellant, in summary form, contends that any operation of the doctrine of res judicata does not preclude the relief now sought; alternatively, the Appellant contends that it was not unreasonable for the Appellant not to have raised the basis upon which jurisdictional error is now sought to be advanced when judicial review was first sought.

21    Each of these arguments needs to be separately considered.

Res Judicata

22    In those circumstances where there is a res judicata, a “cause of action” of a party becomes merged in a judgment: Gibbs v Kinna [1998] VSCA 52, [1999] 2 VR 19. Kenny JA (with whom Ormiston and Phillips JJA agreed) summarised the general principle as follows:

[21] The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment: see Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J; Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J dissenting on other issues; Anshun’s Case 147 CLR at 597, and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507-8.

23    For there to be a res judicata it has thus been said that the “cause of action” in each proceeding must be the same. And, notwithstanding uncertainty as to the expression “cause of action”, its content is to be determined as a matter of substance and not form: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418. Gummow J, when a member of this Court, there said:

It is said that for the estoppel to operate, the cause of action in each proceeding must be the same: … But, as Brennan J pointed out in Anshun (at 610-613) the phrase “cause of action” is used imprecisely and in several senses. These include:

(i)    the series of facts which the plaintiff must allege and prove to substantiate a right to judgment;

(ii)    the legal right which has been infringed; and

(iii)    the substance of the action as distinct from its form.

    …

In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508, Deane, Gaudron, Toohey JJ drew attention to what Brennan J had said as to the imprecision of the phrase “cause of action”, but did not espouse any particular formulation.

However … for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form. This reflects the constitutional basis of federal jurisdiction … Also, it allows for the very many controversies which now come before superior courts, federal and State, without pleadings. And even where pleadings are necessary or are ordered, the effect of the judicature system of pleading, now in general operation in Australia, is as described by Barwick CJ:

[T]here is no necessity to assert or identify a legal category of action ... It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts.

An appeal was dismissed: Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510.

24    The merging of rights by reason of an earlier decision – and the doctrine of res judicata – is well illustrated by Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502. A proceeding had there been instituted by the Deputy Commissioner in the Supreme Court of the Australian Capital Territory seeking the recovery of tax. The proceeding sought the recovery of $25,557.92 and $115.00 in costs. The amount disclosed as the tax due was stated in the assessments as being $255,579.20. Whoever drafted the writ commencing the proceeding mistakenly put the “comma” in the wrong place. The mistake was willingly accepted by the taxpayer. Terms of settlement were negotiated and judgment was entered in the sum claimed in the proceeding. The Deputy Commissioner thereafter commenced a separate proceeding seeking recovery of the balance between the amount claimed in the assessment and the amount recovered in the Supreme Court proceeding. It was concluded that the second proceeding was not maintainable. In so concluding, Deane, Toohey and Gaudron JJ reasoned:

The point of the present appeal is that the respondent brought an action against the appellant and recovered judgment against him. He obtained a judgment of the Court in which the cause of action upon which he relied merged, thereby destroying its independent existence so long as that judgment stood. And, so long as that judgment stands, it is not competent for the respondent to bring further proceedings in respect of the same cause of action. It is no answer to say that the Court might, if appropriate, stay the second action as an abuse of process. The impediment goes deeper than that; res judicata may sustain a plea of abuse of process but in that case the appropriate remedy is to strike out the later action: …. So long as the respondent chooses, as he does, to take no step to set aside the judgment and to raise no issue in the second action as to the circumstances in which that judgment was obtained, he must accept the consequences of res judicata. There is nothing in the Act or arising from the position of the respondent as a public officer that precludes the operation of that doctrine. The matter is not one for the discretion of the Court; by operation of law the cause of action relied upon by the respondent has ceased to exist.

Brennan and Dawson JJ further concluded that the doctrine of res judicata does not admit of any exception in respect to “special circumstances”. In so concluding, Brennan J thus said:

A phrase used by Wigram V.C. in Henderson v. Henderson [(1843) 3 Hare at 115] may be understood as meaning that in “special circumstances” the doctrine of res judicata does not or may not apply. For reasons which I gave in Port of Melbourne Authority v. Anshun Pty. Ltd [(1981) 147 CLR 589 at 613-614], Wigram V.C. was not, in my view, advancing any exception to the doctrine but was referring to the equity practice of that time which allowed for the impeaching of the first judgment in special circumstances. As the doctrine of res judicata does not admit of any exception so long as the first judgment stands, I do not find it necessary to consider the “special circumstances” exception addressed in the joint judgment.

See also Dawson J: (1988) 164 CLR 502 at 512. See: Justice K R Handley, ‘Res Judicata: General Principles and Recent Developments’ (1999) 18 Australian Bar Review 214.

25    The doctrine of res judicata extends beyond disputes between litigants and has been invoked in Australia in an attempt to preclude judicial review of a decision which has previously been the subject of judicial determination.

26    One instance is provided by Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192, 178 ALR 677. Merkel J there concluded that the dismissal of proceedings brought under Part 8 of the Migration Act 1958 (Cth) disentitled the applicants to relief in a subsequent proceeding brought under s 75(v) of the Constitution. Rejected was an argument that the two proceedings were not in substance the same because “the right to prerogative relief under s 75(v) of the Constitution [was] not to be equated with a statutory right of review”: [2000] FCA 1192 at [46]. His Honour noted that the applicants were “only entitled to succeed on the single ground that the RRT constructively failed to exercise its jurisdiction by failing to determine the question of whether the applicants faced a real chance of persecution by reason of imputed political opinion”: [2000] FCA 1192 at [55]. His Honour concluded:

[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.

27    And, in Applicants S311 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 45 Madgwick J also concluded that an earlier decision was in substance the same as a later decision. The applicants, all members of a family group, had there also sought review of a decision of the Refugee Review Tribunal. A number of grounds were relied upon. Whitlam J dismissed the application. Subsequently, a draft order nisi was lodged in the High Court of Australia and an order was made remitting the proceeding to this Court. Branson J heard that application. An argument was advanced that the Tribunal should have found that the father was a member of a particular social group constituted of current or former Columbian police officers trained and working in counter intelligence and drug operations. Branson J noted that the arguments advanced before her could have been raised before Whitlam J. Her Honour also concluded that there was no evidence identifying the social group being advanced for consideration and that the Tribunal did not err by failing to give consideration to the possibility that the father feared persecution by reason of his membership of the suggested group. An application was then made for an extension of time in which to file a notice of appeal from the judgment of Branson J. In refusing leave, Madgwick J concluded:

[44] In my view, the claims raised before Whitlam J are, in substance, the same as the claims raised before Branson J and in the proposed Notice of Appeal before me. For present purposes, the ‘cause of action’ of the applicant may be said to be a claim that the Tribunal’s decision was made with vitiating illegality, whether for constitutional, other jurisdictional or statutory reasons, by reason of legal error made by the Tribunal in misunderstanding the concept of a “particular social group” as it should have properly been applied to the facts found in the applicant’s case. It is, to my mind, immaterial that there have been different, successive attempts to make good this claim, as by differently formulating a supposed social group the membership of which the Tribunal should have considered. Whitlam J’s decision must therefore be seen as finally disposing of the subject of the litigation. The proposed appeal from Branson J’s decision is, accordingly, barred by the doctrine of res judicata.

His Honour went on to further conclude:

[45] In these circumstances, it is unnecessary to consider questions of Anshun estoppel, including whether special circumstances might exist to mitigate the applicability of that doctrine: …

See also: Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 at [48], 132 FCR 222 at 236 per Merkel J; Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65; S307 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 650.

28    The present Appellant accepts that the doctrine of res judicata may apply to decisions seeking judicial review. But on his behalf it is contended that attention nevertheless has to remain focussed on the “cause of action” in respect to which all rights merge in a judgment. Central to this contention is the Appellant’s proposition that a challenge to an administrative decision upon a particular ground giving rise to “jurisdictional error” does not preclude a subsequent challenge upon a different and discrete ground which also may establish “jurisdictional error”. It was the ground upon which “jurisdictional error” was said to have been committed – and not “jurisdictional error” itself – that was the “cause of action”.

29    Somanader, it is submitted on behalf of the Appellant, does not stand in the way of this application of the doctrine of res judicata to decisions seeking judicial review. Somanader, on behalf of the Appellant, it was pointed out, was considered by Sackville J in BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669, 67 ALD 60. This Court had there dismissed an application for review of a decision refusing a protection visa: BC v Minister for Immigration and Multicultural Affairs [2001] FCA 393. There was no appeal from this decision. A separate proceeding was then commenced in the High Court of Australia and that Court remitted the proceeding. Sackville J concluded that “the applicant is not barred by res judicata or cause of action estoppel from pursuing the remitted proceedings”. In considering Somanader, Sackville J observed:

Res judicata

[27] In Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, Merkel J held that the dismissal by consent of proceedings under Pt 8 of the Migration Act to review a decision of the RRT, disentitled the applicants to claim relief by way of judicial review and constitutional writs pursuant to s 75(v) of the Constitution on the same grounds. Among the propositions accepted by his Honour were these:

*    the doctrine of res judicata applies to successive applications for judicial review …;

*    in determining whether res judicata applies, the primary question is whether the cause of action in the later proceedings is the same as that which was litigated in the earlier proceedings …;

*    the identity of the respective causes of action is to be determined by matters of substance, rather than by form …; and

*    the fact that the later proceedings take the form of an application for constitutional writs, as distinct from an application under Pt 8 of the Migration Act, does not prevent the cause of action in the later proceedings being in substance identical to the cause of action determined in the earlier proceedings …

[28] Mr Killalea disputed none of these propositions. However, he resisted the application of res judicata on the ground that the cause of action dismissed by Madgwick J, in what I shall refer to as the Pt 8 proceedings, was not the same as those raised by the remitted proceedings. Mr Killalea pointed out, correctly, that Somanader v Minister was a different case to the present. There the applicant had relied on seven grounds of review in the earlier Pt 8 proceedings, all of which were, in substance, repeated in the grounds relied on in the proceedings determined by Merkel J. Mr Killalea submitted that the present case was different because the single cause of action relied on by the applicant in the Pt 8 proceedings was different from the cause of action relied on in the remitted proceedings.

Sackville J concluded that the doctrine of res judicata did not preclude the applicant from raising a basis upon which jurisdictional error was asserted different to that which had been the subject of an earlier decision.

30    In the present proceeding it was accepted by the Respondent Minister that the basis upon which jurisdictional error was now sought to be advanced was a different source or ground of jurisdictional error to that previously advanced for resolution by the Federal Magistrates Court, this Court and the High Court.

31    The decision of Sackville J, with respect, provides considerable reason to pause before concluding that Mr Kong is now precluded by the doctrine of res judicata from raising the argument as to jurisdictional error founded upon the decision in Dai. But it is unnecessary to reach any concluded view. The doctrine of Anshun estoppel, it is concluded, precludes him from now raising that argument.

Anshun Estoppel

32    The distinction between the two doctrines of res judicata and Anshun estoppel should be recognised at the outset: where there is a res judicata, the right or cause of action becomes merged in the judgment; where there is an Anshun estoppel, a party will not be permitted in a later proceeding to raise a matter that was so relevant to an earlier proceeding that it was unreasonable not to have done so. For there to be a res judicata the parties to the two proceedings must be the same: Ramsay v Pigram (1968) 118 CLR 271 at 276 per Barwick CJ.

33    As recognised by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

A party is thus precluded from later raising an argument in a subsequent proceeding which he could reasonably have relied upon in an earlier proceeding. A party is generally bound by the manner in which he initially sought to have factual and legal issues between himself and an opponent judicially resolved. See also: SZGGS v Minister for Immigration and Citizenship [2008] FCA 973 at [16] per Rares J.

34    The principles particularly relevant to what is now commonly referred to as Anshun estoppel are to be found in the case bearing that name: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. When concluding that a defence which could previously have been raised could not later be relied upon, Gibbs CJ, Mason and Aickin JJ there expressed the law to be as follows:

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. …

It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. …: [(1981) 147 CLR 589 at 602-603].

In reaching the same conclusion, Brennan J reasoned:

When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right … He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. …

The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.

Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts. …: [(1981) 147 CLR 589 at 611-612].

These observations of Brennan J were endorsed by Handley AJA in White v Thompson [2011] NSWCA 161 at [33] (Basten and Young JJA agreeing). The risk of inconsistent judgments lies at the core of Anshun estoppel: Gibbs v Kinna [1998] VSCA 52 at [25] to [26], [1999] 2 VR 19 at 27 to 28 per Kenny JA; Solak v Registrar of Titles [2011] VSCA 279 at [74] per Warren CJ (Neave JA and Hargrave AJA agreeing). In considering whether a matter is “so relevant” that it would have been “unreasonable” not to have previously raised it, it is an error to reason that because a matter “could have been raised in the first proceeding…, it should have been”: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 at [4], 75 NSWLR 245 at 247. Allsop P observed that “the assessment is not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern litigation”. “The purpose of the principle is to avoid the possibility of inconsistent decisions and promote the efficient use of court resources and time”: Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 at [125], 248 FLR 193 at 218 per McLure P.

35    Anshun estoppel, it should also be noted, is not confined to litigation as between private litigants. It is also a doctrine which has been applied in Australia to proceedings seeking judicial review: Stuart v Sanderson [2000] FCA 870 at [22] to [24], 100 FCR 150 at 156 to 157 per Madgwick J; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39], 146 FCR 10 at 18 per Emmett, Conti and Selway JJ. In SZBJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404 at [18], Madgwick J concluded that he could “see no cogent reason why res judicata, issue estoppel (where it can otherwise be established) and Anshun estoppel should not apply in administrative proceedings”. Issue estoppel has been held to preclude in a later proceeding a re-litigation of whether a decision was of “an administrative character” and made “under an enactment” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354 per Fisher J. Ryan J agreed with Fisher J: (1987) 18 FCR 342 at 365. Northrop J dissented: (1987) 18 FCR 342 at 345.

36    Thus, for example, in Wong Emmett, Conti and Selway JJ summarised at least some of the relevant legal principles as follows:

[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 (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 at 602.

…

[39] Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: …. 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: [(2004) 146 FCR 10 at 17 to 18].

See also: MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387 at [28] per Middleton J. Emmett, Conti and Selway JJ in Wong went on to express the following further comments:

[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]): [(2004) 146 FCR 10 at 20].

The Minister’s failure in Wong to there comply with a “positive duty” did not constitute “special circumstances”. See also: Applicant M117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 at [63] to [64] per Kenny J.

37    But, and as was recognised by Emmett, Conti and Selway JJ in Wong, general principles as to the reach of Anshun estoppel may operate differently when the litigation involves the resolution of public – as opposed to private – rights.

38    In public law litigation the focus of attention shifts from an adjudication of private rights between private litigants to an adjudication of rights as between a litigant and a Minister of the Crown or a government entity. There are sound reasons why all issues which can reasonably be raised as between private litigants should generally be resolved during a single judicial outing. So, too, in decisions seeking judicial review. But different considerations, however, potentially apply in public law litigation (cf Enid Campbell, ‘Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation’ (1994) 20 Monash University Law Review 21). Considerations which it has been said may apply in a different manner in the context of public law litigation include:

    the absence of any “pleadings” in (for example) an application for judicial review which clearly identify the “issue” or the “cause of action”;

    the absence on the part of a respondent Minister of any “personal interest in the outcome of a proceeding”;

    the prospect that a respondent may be less “vexed” by litigation than a private respondent; and

    the potential for a respondent Minister to have greater resources.

Another consideration, however, supporting the importance of Anshun estoppel to public law litigation may be:

    the prospect of a respondent Minister confronting a series of separate challenges arising out of multiple decisions raising the same legal question, albeit a question which has to be answered by reference to the facts and circumstances of each particular applicant. A series of unsuccessful attempts raised in a series of discrete proceedings to challenge the manner in which that single legal question has been approached and resolved cannot generally be open to question merely because a later applicant happens to seize upon an argument previously not considered.

In areas of mass decision-making, such as some decisions made under the Migration Act, any contrary conclusion may lead to many earlier decisions being open to question – not by reference to the bases upon which they were in fact challenged – but by reference to an argument only crafted and devised by legal advisers retained in different proceedings, perhaps in a proceeding taking place many years after the first decision on that same legal question has been made.

39    The state of the authorities in Australia, however, is such that Anshun estoppel may operate in both private and public law litigation.

40    In determining whether it was “unreasonable” for Mr Kong not to have raised the argument exposed in Dai, it may be accepted that at the time he sought judicial review the jurisdictional error exposed in Dai remained unexplored. The fact that legal advisors retained in different proceedings at a later point in time successfully exposed an argument previously not discerned must necessarily be balanced against the fundamental concern as to the need for finality in litigation and also such further considerations as:

(i)    the public interest in ensuring that administrative decision-making is made in accordance with law; and

(ii)    the public interest in certainty in administrative decision-making and decisions being made in a timely and efficient manner.

The sole factor which may lend some support for Mr Kong’s proposition that he should remain free to be able to now rely upon the decision in Dai is that the judgment was handed down after the decision in his own proceeding. On one view, his proposition is that it cannot be “unreasonable” for him to have not relied upon an argument or a ground of review of which he was unaware. But that sole factor, it is considered, should not prevail. The law is constantly developing – especially in the area as to what constitutes “jurisdictional error.” A successful argument as to what constitutes “jurisdictional error” should not generally be the occasion for prior disappointed applicants seeking judicial review to re-agitate issues which had previously been finally resolved. To accept such a general proposition would undermine finality in public law litigation and be productive of inconsistent judgments.

41    Although the absence of legal representation may be relevant to a determination as to whether a new ground of review should reasonably have been raised in an earlier round of litigation, it should be recognised that Anshun estoppel does not necessarily arise merely by reason of a litigant being unrepresented (MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 at [11] per Sundberg J; MZWKJ v Minister for Immigration and Multicultural Affairs [2006] FCA 761 at [19] per Kenny J; SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [33] per Jagot J) or by reason of any lack of appreciation on the part of an unrepresented litigant of the arguments that could potentially have been previously advanced (SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [11] per Bennett J).

42    In the circumstances of the present case, it is concluded that Mr Kong cannot now rely upon the jurisdictional error exposed by Dai. The public interest in the certainty of administrative decision-making prevails over permitting Mr Kong the freedom to raise the argument some four years after the decision of the Full Court in Dai and seven years after the cancellation of his visa. After such a period of time, the importance to be ascribed to possibly inconsistent judgments being delivered – one in 2006 and the other in 2011 in this appeal – is only increased and weighs heavily against Mr Kong. The potential for inconsistent judgments was also a matter relied upon by Sackville J in BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669 at [45] to [46], 67 ALD 60 at 73. Although His Honour there concluded that res judicata did not deny success to the appellant, Anshun estoppel did.

43    In the present proceeding it is perhaps of marginal relevance to note that there is an absence of any evidence in the present proceeding of such matters as (inter alia) when Mr Kong’s advisors were first retained to give advice and when they first became aware of the decision of the Full Court in Dai.

44    Notwithstanding the significant concessions made on behalf of the Respondent Minister, it is concluded that there are no “special circumstances” such as to warrant Mr Kong being now free to raise an argument founded upon Dai.

Conclusions

45    Mr Kong challenged the decision to cancel his student visa in 2005. He availed himself of his right of review before the Migration Review Tribunal and his right to seek judicial review before the Federal Magistrates Court and on appeal to this Court. The conduct of his case was even considered by the High Court on an application for special leave.

46    He cannot now be permitted years later to avail himself of the argument as to jurisdictional error which he seeks to invoke. It is unnecessary to consider the final submission advanced on behalf of the Respondent Minister that relief should be refused, even if one or other of the Grounds of Appeal were otherwise made out, on the basis of futility.

47    Each of the Grounds of Appeal is to be dismissed.

48    It should finally be noted that Counsel on behalf of Mr Kong put a formal submission that neither the doctrines of res judicata nor Anshun estoppel were applicable to the resolution of the present appeal.

49    The appeal is to be dismissed with costs.

ORDERS

The Orders of the Court are:

1.    The Notice of Appeal as filed on 9 August 2011 is dismissed.

2.    Pursuant to r 40.02(b) of the Federal Court Rules 2011, the Appellant is to pay the costs of the First Respondent in a lump sum of $5,590.00.

Associate:

Dated:    25 November 2011