Applicant A87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application by the first respondent to dismiss the applicant's principal proceedings. 2 On 18 February 2003 the applicant filed proceedings in the High Court of Australia seeking the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) made on 27 August 2002 and handed down on 17 September 2002. 3 The applicant is a national of Bangladesh. He arrived in Australia on 5 October 2000. On 14 November 2000 he lodged an application for a protection visa (Class XA) with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 2 January 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa. On 26 January 2001 the applicant applied to the RRT for a review of that decision. 4 On 27 August 2002 the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa. 5 On 11 June 2003 Hayne J ordered: '1. The further proceedings in this application for an Order Nisi for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari be remitted to the Federal Court of Australia, South Australia District Registry. 2. The application for an Order Nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.' 6 On 10 March 2004 the applicant filed an amended application (the second application) under the Judiciary Act 1903 (Cth) supporting the application for the issue of the constitutional writs. In particular, he claimed that the Tribunal decision 'was not with any lawful effect rather it was infected by jurisdictional error'. 7 The particulars given are: '(a) That the Tribunal did not comply with the mandatory obligations that [sic] contained in s 424A of the Migration Act. (b) That the Tribunal references includes - (1) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (2) Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 191 CLR 559, (3) Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, (4) Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 and (5) Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574. (c) That the Tribunal did not ensure, as far as reasonable [sic] practicable, or at all, that the applicant understood why all those references and information were relevant to his review application as required by s 424A(1)(b) of the Migration Act. (d) That the Tribunal did not give the applicant notice of the particulars of the information or references in the manner required by s 424A(1)(a) and s 424(2)(a) of the Migration Act.' 8 The amended application was supported by an affidavit, the content of which was mainly directed to the merits of the RRT decision. 9 On 1 April 2004 the Minister filed a Notice of Motion seeking orders: '1. The application in these proceedings be dismissed pursuant to O 20 r 2 of the Federal Court Rules on the basis that the doctrine of Res Judicata prevents the bringing of the application. 2. Further that the applicant is estopped from bringing this application on the basis of the doctrines of issue estoppel and Anshun estoppel. 3. Further that the application be dismissed on the grounds that the application is an abuse of the process of this Honourable Court. 4. Further that the application be dismissed on the basis that no reasonable cause of action is disclosed in the application.' 10 The Minister also sought the costs of and incidental to the application. 11 The Minister's Notice of Motion was supported by the affidavit of a solicitor in the employ of the Minister's solicitors. She has deposed that she searched the files of the Department and the RRT. Those files disclose that on 21 October 2002 the applicant issued proceedings in the Federal Court of Australia in the New South Wales Registry seeking, pursuant to s 39B of the Judiciary Act, a judicial review of the decision of the RRT handed down on 17 September 2002. She exhibited a copy of that application (the first application) and the reasons for decision and the orders of Wilcox J given on 29 January 2003 by which he dismissed the applicant's application for review. 12 The first application was in the following form: 'A. Details of claim I am seeking a review of the RRT decision of dated 17/08/2002 [sic] under concerned Section (Error of Law) of the migration act. I received the decision dated 23/09/2002, and lodging this application under Section 39B of the Judiciary Act 1903. I am totally aggrieved by the decision because-