Applicant S1198/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from orders made on 8 December 2004 by a Federal Magistrate dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 21 July 2000 and handed down on 3 August 2000. 2 As is apparent from the date in [1] above, some explanation of what has happened in the conduct of the appellant's litigation is necessary. The reasons of the Federal Magistrate at [7] to [11] provide some essential background: The applicant filed an application in the Federal Court in relation to the same Refugee Review Tribunal decision on 29 May 2000. In [name] v Minister for Immigration and Multicultural Affairs [2001] FCA 27 at [3] Conti J found that from a reading of the application for review in its totality it was apparent that there were only two grounds under the statute scheme then in place under Part 8 of the Migration Act 1958 (Cth) (the Act) which had been pursued. The first ground was that the decision was affected by fraud or actual bias. The second ground was that there was no evidence or other ground to justify the making of the decision. In the result, Conti J dismissed the application saying that the Applicant has failed to make good the grounds for review of actual bias and non-existence of facts upon which the RRT´s Decision can be said to have been based . The application to the Federal Court was dismissed on 22 February 2001. No appeal was filed from the decision of Conti J. The applicant was also involved in the Muin High Court proceedings (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). Like most others in that class action, he eventually ended up in the Federal Court and Emmett J dismissed his application and refused to grant an order nisi. The applicant sought leave to appeal which was also dismissed, this time by Jacobson J. But in accordance with undertakings given by the Minister in Muin cases to Emmett J, no point is taken in relation to the Muin proceedings by the respondent. 3 The application in the Federal Magistrates Court was filed on 21 May 2004. This was within a matter of weeks of the dismissal by Jacobson J of the application for leave to appeal referred to in [11] of the Federal Magistrate's reasons. An amended application was filed on 4 November 2004. At the hearing the appellant was represented by Mr Archibald. At the hearing, the appellant abandoned ground 12 concerning procedural fairness. 4 The Minister submitted to the Federal Magistrate that given the history of the matter, the appellant was estopped from pursuing the application. The submission is set out at [12] of the reasons of the Federal Magistrate: The Applicant instituted previous proceedings in this Court challenging the Tribunal´s decision on the grounds of bias and the statutory no evidence ground in the former s 476(1)(g) of the Migration Act 1958 (the Act). Those proceedings were dismissed in [name] v MIMIA [2001] FCA 27 (Conti J). While the Amended Application does not raise these grounds again, there appears no reason why the grounds it does raise, other than as to procedural fairness [and unreasonableness, as accepted by the respondent at the hearing as the other exception] could not have been raised in the previous application, so Anshun estoppel applies to the non-procedural fairness [and unreasonableness] grounds in the Amended Application: see Wong v MIMIA [2004] FCAFC 242. And even if no estoppel applies, the proceedings are an abuse of process as they are an attempt to relitigate a case already disposed of (and from which no appeal was brought): Walton v Gardiner (1993) 177 CLR 378 at 393; Chu v MIMIA (1997) 78 FCR 314 (FC) at 323-326. Accordingly the Amended Application should be dismissed. 5 There was no complaint on appeal about this approach on a matter of principle. 6 It is unnecessary to set out all the grounds of review in the amended application. Mr Archibald conceded before the Federal Magistrate that "apart from the grounds of procedural fairness and unreasonableness", all the grounds could have been argued under the old Part 8 of the Migration Act 1958 (Cth). (The procedural fairness ground was, as I have said, abandoned.) 7 The Federal Magistrate identified the "unreasonableness ground" as ground 7 in the amended application, which was in the following terms: The decision was so unreasonable that no reasonable Tribunal would have made it. 8 It should be noted that ground 6 in the amended application was in the following terms: The Tribunal made several findings that elements of the applicant's claim as to experiences of past persecution were implausible and/or were exaggerated. These findings in themselves did not have logical and/or factual foundations and yet the Tribunal relied upon them to make findings of fact on material issues and the ultimate issue in the applicant's case. PARTICULARS (a) the finding that the written submission which was lodged with the Department after the applicant had submitted his own handwritten protection Visa application, and received advice at the office of the Department, to the effect that further evidence in support could be provided later, was exaggerated, (b) The finding that the applicants claims became more exaggerated in number and severity as he proceeded through the various stages of the refugee determination process. (c) the finding that on the difference between the handwritten statement within the protection Visa application, and the later written submission, represented a substantial change in the applicants account in a space of less than three months. (d) the finding that the Tribunal was not satisfied that the scarring on the applicants penis was an attempted mutilation by a group of Muslim youths. (e) The finding that it was implausible that a person who had suffered once in the way that the applicant has described, would put himself in the same position on not one but four further occasions. (f) The finding that it was implausible that a person who has had expensive camera equipment destroyed would keep replacing it and subjecting it to the same risk again. (g) the finding that it was implausible that the applicant was forced to walk naked along the streets not on one occasion but on two ocassions [sic]. (h) The finding that it was implausible and/or exaggerated, that the applicant kept writing, despite being specifically threatened with death on at least seven occasions, and assaulted another occasions. (i) The finding that it was implausible and/or exaggerated that though people had been ordered to killing [sic] the applicant they failed to carry out their orders. (j) The finding that it was implausible that there were at least four different gangs operating in the same area of Dhaka; all intent on doing the applicant harm; each of which made very sorties [sic] against him at arbitrary times with the objects of either stopping him writing, depart for India, or killing him. (k) The finding that the Tribunal was not able to be satisfied that the applicant wrote for other magazines, still less that he wrote articles critical or that the [sic] could be construed as critical of the majority Muslim community in Bangladesh. 9 There was no complaint before me that the Federal Magistrate had incorrectly recorded Mr Archibald's submissions to the effect that only ground 7 of the remaining grounds could not have been argued at the hearing before Conti J. 10 At this point it is worth noting that ground 7 could have been run before Conti J, though it is fair to say that prior to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 there was a widespread view (notwithstanding the approach of at least some members of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611) that unreasonable findings of fact and unreasonableness as to conclusion could not found review under Part 8 as it then stood: see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 (in the Full Court) overturned by the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59. 11 The Federal Magistrate approached the matter on the basis that Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589applied to an application for judicial review under s 39B(1) of the Judiciary Act 1903 (Cth). No complaint was made on appeal about that proposition. 12 The Federal Magistrate directed himself as to the application of Anshun by reference to the Full Court's decision in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]-[39], as follows: 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. 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 supra at p602 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 543at 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 287at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581. 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. 13 No complaint was made on appeal about this approach. 14 The Federal Magistrate then, at [15], posed this question for resolution: It is clear that the Anshun estoppel principle applies. The question then is whether it was not unreasonable to omit the grounds from the earlier proceedings. This involves consideration of whether there are any special circumstances for such failure to pursue the grounds at that time. It is to be noted that the Federal Magistrate at this point appears to make no distinction between the grounds which Mr Archibald conceded could have been argued before Conti J and the unreasonableness ground. The Federal Magistrate then summarised counsel's argument which summary reflected the fact that all the grounds, including the unreasonableness ground, were dealt with in the one body of submissions. Counsel's argument was summarised at [16] as follows: Archibald relied on a number of special circumstances individually and cumulatively. He summarised the grounds as the applicant´s lack of financial resources, the fact that the applicant was self-represented, the apprehension that the applicant held regarding a loss of confidentiality and in particular the perceived embarrassment he felt in relation to a personal matter. Mr Archibald also referred to the fact that the Minister is a statutory defendant, the impact of the later Yusuf decision ((2001) 206 CLR 323) and the fact that the respondent could be compensated by a costs order. Finally, although he did not include it in his summary, I understood him to be arguing that the nature of the proceedings going to issues concerning the life and liberty of the applicant constituted a special circumstance. 15 The Federal Magistrate then at [17] and [18] dealt with the issues that Mr Archibald had conceded could have been raised before Conti J, as follows: I have carefully considered these grounds for special circumstances, as they apply both individually and cumulatively to the applicant´s case. In my view, the circumstances are not so special as to amount to " exceptional" in the words of the Full Court in Wong . For example, in the applicant´s Federal Court case, Conti J found the applicant to be a well-educated and intelligent person with a reasonable command of the English language. Although he was unrepresented he had in the past had assistance from advisers, including migration agents. It is clear that he has had access to resources. The lack of representation in migration cases, in both the Federal Court and the Federal Magistrates Court, is indeed the norm and cannot amount to a special circumstance. I am not satisfied that the grounds raised by the applicant amount to special circumstances. Therefore, none of the issues which could have been raised in the earlier proceedings should be allowed to be raised in these proceedings. 16 The Federal Magistrate then, at [19] to [28], dealt with the unreasonableness ground. He found it to be an abuse of process. The Federal Magistrate applied the principles in Walton v Gardiner (1993) 177 CLR 378. He recognised the care which dismissal for this reason required. The only reasoning, however, of the Federal Magistrate was as follows in [24]-[28]: The ground of unreasonableness raised by the applicant in his amended application is ground seven: The decision was so unreasonable that no reasonable Tribunal would have made it. This ground is not particularised in any way. Mr Archibald said the applicant would be relying on the same reasoning as he had for the other grounds and he would draw support from the decision of Lee J in Thevendram v Minister for Immigration& Multicultural Affairs [2000] FCA 1910. In my view, the applicant is asking the Court to conduct merits review under the guise of the unreasonableness ground. This the Court cannot do. Having regard to all the material and the submissions that have been placed before me by Mr Archibald, in my view this ground is, in the words of Walton v Gardiner "foredoomed to fail." The unparticularised unreasonableness ground is, in my view, an abuse of process and should also be dismissed. 17 Thus, there were two clear bases for the dismissal of the application: (a) on the basis of the principles in Anshun as to grounds 1-6, 8-11 and 13 in the amended application and (b) on the basis of ground 7 being an abuse of process. 18 At the commencement of the hearing of the appeal, an amended notice of appeal was filed in Court. It contained one ground of appeal: that there were special circumstances to provide an exception to Anshun. The ground in the amended notice of appeal then went on to state the following: "This being the primary basis for the learned primary Judge's dismissal of the application". The particulars to this sole ground were set out under it and are annexed to these reasons. In support of this ground so particularised the appellant sought to lead fresh evidence on appeal under s 27 of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act"). This course was opposed by the respondent. To resolve this issue, the parties were agreed that I should hear the application to adduce fresh evidence and the appeal concurrently. 19 Two affidavits were sought to be read: that of the appellant and that of a Mr Kundu, a friend of the appellant. The affidavits go to the history of the appellant's lack of representation before Conti J. A migration agent, Mr Kabir, prepared a submission and, it was said, told the appellant that a barrister would be retained. None was. The appellant said that he was upset at the time of news as to his father's detention in Bangladesh, and of his brother's assault by police. The appellant said that he had limited financial resources. The affidavit of the appellant states that he became aware of his lack of representation on the morning of the case. He says that he did not know that he could ask for more time. 20 In submission before me, Mr Archibald crisply summed up the evidence as follows: The evidence is that after the adverse Tribunal decision the applicant wished to appeal it. He consulted a Mr Kabir, who was a migration consultant. Mr Kabir said that he would obtain a barrister for the applicant. The applicant paid him $1000 for the barrister's services. The applicant made repeated inquiries of Mr Kabir of how he is going on getting a barrister. He was repeatedly assured that everything is in hand, everything is right and then the day before the appearance before Conti J, Mr Kabir advised the applicant that he hadn't been able to obtain a barrister to the effect that the applicant went along the next day and represented himself as best he could before Conti J. Then after the adverse decision of Conti J, the applicant was advised to participate in the Muin and Lie class action. He was advised by a solicitor that he had a better chance there. He didn't exercise his rights of appeal in relation to Conti J, participated in a class action, ended up appearing before Emmett J when the class action was referred back to the Federal Court. Emmett J dismissed his personal application. 21 Mr Archibald also said that he might need to give evidence, a fact which he only appreciated on the morning of the hearing of the appeal before me. After discussion in Court he stated that the failure to seek an adjournment before the Federal Magistrate was his decision. As Mr Reilly put it in argument, that expression of the matter probably does an injustice to Mr Archibald. One needs to understand what happened at the hearing before the Federal Magistrate. 22 Shortly before the hearing before the Federal Magistrate, the history of the earlier proceedings became known to Mr Archibald. His client had not told him of these matters. He took instructions from the appellant and led evidence. The evidence was in a transcript marked "in confidence". There was no confidence disclosed or claimed in its tender before me. I see no basis for any order under s 50 of the Federal Court of Australia Act 1976. Do you remember that you made an application to the Federal Court of Australia in relation to the decision of the Refugee Review Tribunal to uphold the decision of the Department not to give you a Visa? ---Yes, I remember. Remember you made that application? ---Yes, I did. Do you remember appearing before the Judge in the Federal Court? ---Yes. Do you remember whether you had legal representation at that hearing? ---No, I didn't have legal representation. Could you tell the Court the reasons why you did not have legal representation? ---Because I didn't have money to - to hire him, a legal advisor, plus I was ashamed and embarrassed to tell my situation, what I have faced in Bangladesh, like forced circumcision, everything, to - to the lawyer because I thought maybe I could have been able to convince the Judge myself. So, that is the reason I didn't. What was your concern about telling the lawyer about your forced circumcision? ---Like, I thought maybe the - the news will go out and people from Bangladesh when they see me would know. And it will be - and be another problem for me. Was your concern about people in the country of Bangladesh or people in the country in Australia? ---People of both, who live in Bangladesh, plus also who live in Australia from Bangladesh. Did you have financial commitments to any persons? ---Yes, because I had to send some money to my family members because sometimes - because at that time they live in - they live in India without any - now without any assistance from anybody. Do you recollect that Conti J, who was the Judge in the matter in the Federal Court, do you recollect him giving his decision to you? ---Yes. And you recollect that that decision was unfavourable to you and you lost that case? ---Yes. Could you tell the Court the steps - did you take any steps in relation to an appeal of that decision? ---No, I didn't take any step for appeal because my case was with Adrian Joll in relation to class action. Your case - sorry, I didn't catch what you said your case was? ---I applied class action which was - that has been running by Mr Adrian Joll. So - so there is the reason I thought maybe it is not appropriate to appeal. Did you take advice from Mr Joll as to whether you should appeal Conti J's decision in the Federal Court? --- No. Mr Adrian Joll didn't tell me about that. Well, I repeat the question. Did you take advice from Mr Joll on whether you should appeal that decision? --- Mr Joll - he told - we have now we're in this class action so - and then, I mean, you can - this one application is okay. Do you recollect when your class action finished? --- This year. It's in May. What steps did you take after your class action finished? ---Then I apply to the Federal Magistrates Court. Which is this current application? ---Yes, this current application. Nothing further, your Honour. 23 The Federal Magistrate then questioned the appellant as follows: FEDERAL MAGISTRATE: Just one question, Applicant. You said earlier on when you were asked by Mr Archibald why you didn't have any legal representation before Conti J. you had no money, you were embarrassed to talk about the situation of your forced circumcision and I understood you also to say you thought - did you say. "I thought I could convince the Judge?" Were they your words? --- Sorry, sir? "I thought I could convince the Judge myself"? ---Yes, I thought because I can explain everything to him. So, one of your reasons for not having a legal representative is that you thought you could convince the Judge yourself? --- No, because - because the reason I didn't have - so because I didn't have any way, so I had to - I had to appear in front of Conti J and I had to tell him because I didn't have any way to hire a barrister, so --- But one of the reasons for you not hiring the barrister was, I understood you to say was because you felt that you convince the Judge yourself. Did I misunderstand you? --- No, I think, yes, maybe - maybe I used the wrong word for that. Because --- Okay. So, you don't accept that that was a reason? ---Yes. Thank you. Is there coming from what I've said? MR ARCHIB ALD: No, your Honour. MR REILLY: No, your Honour 24 The appellant was asked directly and clearly by Mr Archibald and the Federal Magistrate why he did not have legal representation. He did not give some of the evidence about Mr Kabir that is now said to be important. 25 Mr Archibald stated the following to me on appeal which was accepted by the respondent as accurate. It was taken as part of the fresh evidence application. Your Honour, the evidence will be that I was not aware of the previous proceedings before Conti J until the respondent's submissions were received. I did not discuss with the appellant why he came to be self-represented before Conti J until the morning of the hearing before Federal Magistrate Mowbray. I had a brief discussion with the appellant prior to court, that is, prior to the proceedings before Federal Magistrate Mowbray and then had a discussion of approximately [25] minutes during a recess in the hearing. I was not appraised with the applicant's dealings with Mr Kabir at any time prior to him giving evidence and I was not aware of the applicant's participation in the class action nor the ultimate dismissal. The numbers "25" are in brackets. Mr Archibald said 10 minutes but he agreed with the suggestion of Mr Reilly's instructing solicitor that it was 25. 26 The approach to the admission of fresh evidence on appeal is governed by CDJ v VAJ (1998) 197 CLR 172 at 200-204. Following this approach, I do not propose to admit the evidence. I take this course for the following reasons. Mr Archibald asked the appellant the relevant questions before the Federal Magistrate. The answer he gave was (if the appellant's affidavit is to be accepted at face value) incomplete. There was no basis for Mr Archibald to consider the need for a possibly costly adjournment. In any event the evidence now sought to be given is by way of elaboration only of the matters dealt with by the Federal Magistrate at [16] and [17] of his reasons. There must come a time in litigation when issues once addressed are not revisited at will. The appellant gave answers on oath as to why he did not have a legal representative before Conti J. The primary judge dealt with the matter on that evidential foundation. I do not see it as in the interests of justice for the appellant now to elaborate upon that evidence because it is now seen as having been inadequate as originally given. 27 I permitted the application for fresh evidence on appeal to be made without a formal motion. I would dismiss it. 28 I see no error in the Federal Magistrate's conclusion that there were no exceptional circumstances. No real attempt was made by Mr Archibald to argue that, on the evidence before him, the Federal Magistrate erred in this respect. 29 Even if I had admitted the evidence I do not see that it makes out "exceptional circumstances". Even if the evidence puts the appellant's position before Conti J in a somewhat more sympathetic light, it was not suggested in argument that the result reached by Conti J was clearly wrong or that some matter which was not illuminated before Conti J now could be, to decisive effect. 30 The substance of the appellant's position is that he wishes to have a second attempt at judicial review because he was unrepresented at his first attempt, after his migration agent let him down. In so summarising the matter, I have regard also to the other assertion in the evidence sought to be led as fresh evidence. I do not consider that an exception to the rule in Anshun has been made out, even taking into account the fresh evidence. 31 On the evidence before him, the Federal Magistrate did not err as to the question of the application of Anshun. 32 There was no appeal in respect of the treatment of the unreasonableness ground. 33 The orders that I make are: