Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

The Refugee Review Tribunal 6 On 9 June 1998, the applicant made an application for review of the delegate's decision to the Refugee Review Tribunal ('the Tribunal'). At the hearing before the Tribunal the applicant also claimed to fear persecution on the ground of his political opinion as a member of the Democratic Alliance which is associated with a political group known as M‑19, a group persecuted by the government and opposed to FARC. The applicant further claimed to fear persecution in Colombia on the ground of his membership of a particular social group, namely a former police officer who upheld the law. 7 The Tribunal was satisfied that the applicant had a well-founded fear of persecution in Colombia based on the likelihood of further attacks of the kind he had previously experienced. The Tribunal was not satisfied, however, that the applicant's well-founded fear of persecution was a fear based on any of the reasons identified in Art 1A(2) of the Refugees Convention. The Tribunal rejected the contention put to it by the applicant that there was a social group in Colombia consisting of former police officers who performed their duties lawfully. The Tribunal found that the applicant was attacked as an individual; that is, as a person responsible for the destruction of the narcotics factory, rather than as a member of the police force. The Tribunal was also unable to find any evidence that the applicant feared persecution on the grounds of his political or imputed political beliefs as a purported member of the Democratic Alliance or M-19. 8 On 5 November 1998, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

Applications for Judicial Review 9 The applicant has made many and varied applications for judicial review since the adverse decision of the Tribunal. 10 The applicant first sought judicial review of the Tribunal's decision in this Court and in his application relied on the following grounds of review: procedural fairness; jurisdictional error; error of law on the face of the record and error of law. On 18 March 1999, Whitlam J gave ex tempore reasons for judgment, dismissing the applicant's application with costs. His Honour held that there was no reviewable basis of error in the Tribunal's decision. 11 The applicant then filed an application for extension of time to file and serve a Notice of Appeal from the decision of Whitlam J. On 14 May 1999, Hill J gave ex tempore reasons for judgment, dismissing the application. No order was made as to costs. 12 On 2 June 1999, the applicant filed an application for special leave to appeal in the High Court. On 21 December 1999, a notice of discontinuance was filed in the High Court. 13 On 12 December 2000, a draft order nisi was lodged in the High Court in the name of Bo Peng Shen on his own behalf and as a representative on behalf of fifty eight other people including the applicant and his family. On 26 March 2001, Bo Peng Shen filed a Notice of Discontinuance. 14 On 10 September 2002, a draft order nisi was lodged in the applicants' names in the High Court. On 6 February 2003, Gaudron J remitted the proceedings to this court and made an order, among others, that: 'The application proceed in [the Federal] Court as if the steps already taken in the application in this Court had been taken in that Court.' The steps taken in the High Court did not include the making of an order nisi in any terms. 15 On 11 September 2003, Branson J heard the application for an order nisi. The grounds of review set out in the applicant's draft order nisi were:

'1. A constructive failure to exercise jurisdiction by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 2. Denial of Natural Justice by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 3. Failure to take into account relevant consideration/take account of irrelevant considerations by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 4. Jurisdictional Error by the second respondent in relation to the decision of the Applicants and the Applicant family's protection visa' 16 Her Honour gave ex tempore reasons for judgment, dismissing the application with costs. Branson J held that there was no arguable case for final relief and that the arguments advanced on behalf of the applicant merely sought merits review of the decision of the Tribunal. Her Honour noted that the arguments put to her could have been raised before Whitlam J and the fact that the applicant did not appeal from his Honour's judgment leaves open the contention that the proceedings amount to an abuse of process. 17 Although not pressed as a ground of review, or even raised before the Tribunal, the applicant argued before Branson J that the Tribunal should have found that the applicant was a member of a particular social group constituted of current or former Colombian police officers trained and working in counter intelligence and drug operations, or who once did such work, and who in their operations had destroyed drug operations and exposed corrupt government officers and their link to the FARC guerrilla group and drug cartels. Branson J held that there was no evidence identifying such a social group and that the Tribunal did not err in failing to give consideration to the possibility that the applicant feared persecution by reason of his membership of this suggested social group. Draft Notice of Appeal 18 On 8 October 2003, the applicant's representative, Ms Byers, filed an application for extension of time to file and serve a Notice of Appeal from the judgment of Branson J, an affidavit in support of that application and a draft Notice of Appeal.

19 The applicant's draft Notice of Appeal proposes to rely on the following ground: 'The Court below erred in not finding that the Tribunal had made an error of law in determining that the applicant was not persecuted for reason of membership of a particular social group. Particulars The error in definition of particular social group lies in ascribing the attacks, accepted as persecutory by the Tribunal, to revenge at large. The example used by the Tribunal of a civilian wholed the police to the drug factory, and hence that factory's destruction, does not destroy the identity or cohesiveness of the particular social group, which is those law abiding Colombians who take active measures through legally based authority to destroy illegal drug operations. 20 The applicant identified a new social group in the draft Notice of Appeal as 'those law abiding Colombians who take active measures through legally based authority to destroy illegal drug operations'. 21 Ms Byer's affidavit states that the applicant's Notice of Appeal was filed out of time because the applicant only sought her assistance on 30 September 2003 and because there was some delay thereafter in obtaining advice from counsel.

Applicant's submissions 22 The applicant submits that the Tribunal failed to recognise the existence of a social group, being those law abiding Colombians who take active measures through legally based authority to destroy illegal drug operations. The applicant asserts that this failure meant that the entire approach of the RRT was infected with jurisdictional error, as the questions as to whether persecution was for a Convention reason were not posed in the correct framework. 23 The applicant provided the Court with draft written submissions. These submissions deal only with one finding of the Tribunal; namely, that the applicant was not a member of the particular social group identified before the Tribunal, they do not deal with the ground pressed in the draft Notice of Appeal that the Tribunal did not accept that any harm that the applicant feared was by reason of his membership of any such social group (the group identified before the Tribunal). 24 The applicant submits that Branson J was mistaken in not finding that the Tribunal was in error for failing to recognise that the applicant was not 'attacked as an individual' but was attacked for reason of his being a member of a particular social group, being 'those law abiding Colombians who take active measures through legally based authority to destroy illegal drug operations'. 25 The applicant submits that the Tribunal misapplied the decision of Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 ('Applicant A'), and that a correct analysis of that decision shows that the Court did not consider that in every case there must be societal recognition of a group. Dawson J merely defined a 'particular social group' as: '…a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element, the element must unite them, making those who share it a cognisable group within their society.' 26 The applicant relies on the decision of Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (2002) 210 CLR 1 for the proposition that the question whether a group is 'cognisable' is one to be assessed by the Court and not the society in question. 27 The applicant also relies on statements by Kirby J in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 ('Dranichnikov') in which his Honour stressing the importance of addressing the existence of a particular social group correctly, the failure of which can draw the Tribunal into error. 28 The applicant submits that there was evidence before the Tribunal suggesting the existence of a social group comprising those who had worked within the law to destroy drug factories, and that the applicant feared persecution because of membership of such a group, contrary to Branson J's reasons at [13].

Respondent's submissions 29 The respondent submits that the prospect of success of an appeal from the decision of Branson J is weak and that any such proposed appeal would amount to an abuse of process. 30 In the grounds of the application before Whitlam J a number of errors were asserted by the applicant: procedural fairness; jurisdictional error; error of law on the face of the record and error of law. The respondent submits that those grounds of review cover what is being asserted in the present case and are barred by the doctrine of res judicata. 31 Before the Tribunal, the applicant relied on membership of a particular social group as defined in a particular way (Colombian police officers who did their duty). Before Branson J the main ground was that the applicants were members of a different social group. Now the applicants are proposing yet another social group. The respondent submits that there is no evidence of any of these groups but, ultimately, it does not matter that a new social group is raised because error of law was raised before Whitlam J and to raise it again before Branson J or presently would be an abuse of process. Ultimately, the respondent submits, the Tribunal determined the matter adversely to the applicant in 1998 and there has been a series of applications for judicial review stemming from that decision. The applicant continues to raise new arguments not raised previously. This amounts to an abuse of process. 32 The respondent submits that the applicant cannot appeal from the decision of Branson J because the applicant has abandoned all of the grounds, or all the particulars of the grounds run before Branson J. The applicants are proposing an appeal with new grounds and the courts are very slow to allow new grounds being raised on appeal even where a right of appeal actually exists: Coulton v Holcombe (1986) 162 CLR 1. Here, what is being sought by the applicants is, in effect, a totally new proceeding, identifying a new error. 33 Finally, the respondent submits that the decision of Branson J was an interlocutory judgment, because what was dismissed was an application for an order nisi. It is only once there order nisi has been granted that there is a proceeding before the Court and, as such, no appeal as of right lies in this proceeding.

Applicant's submissions in reply 34 To the respondent's claim that an appeal could not succeed because the 'particular social group' raised in the Notice of Appeal was not raised before the Tribunal, the applicant contends that review ought not be denied because a 'variable legal concept' (that is, the particular social group) is not defined with 'absolute accuracy'. The applicant says that 'the

heart of the issue is that the applicant fears persecution for characteristics (which he cannot don or doff like clothes) that he shares in common with others'. 35 To the respondent's claim that there was no evidence as to the existence of a social group of 'those law abiding Colombians who take active measures through legally based authority to destroy illegal drug operations', the applicant submits that 'a social group may exist for Convention purposes without in anyway involving interaction between its members: it is not a club'. The applicant relies on a statement of McHugh J in Applicant A at 265: 'A group may qualify as a particular social group, however, even though the distinguishing features of the group do not have a public face. It is sufficient that the public is aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group…' 36 The applicant claims that the particular social group may be gleaned by the Tribunal from the applicant's claim 'as to fear from a certain quarter, combined with acceptable 'judicial knowledge' as to the conditions in Colombia…'. 37 The applicant denies that 'until an order nisi is granted no proceedings, as such, exist' is wrong because the respondent can appeal if the applicant for relief manages to get an order nisi and it is made absolute, but if the applicant does not get an order nisi he/she is without remedy. The applicant submits that 'her Honour's order was final on its face…and was consequently dispositive of the matter…and as such may be the subject of appeal'. 38 The applicant submits that an application for review under s 39B of the Judiciary Act 1903 (Cth) is a fresh basis of litigation (analogous to the power under s 75(v) of the Constitution) and therefore is not barred by the doctrine of res judicata. Consideration 39 Order 51 of the Federal Court Rules deals with matters remitted by the High Court for an order nisi: '(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 40 As explained at [17]-[18] above, Branson J did not make an order nisi. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180; NAHQ v Minister for Immigration & Multicultural Affairs [2003] FCAFC 297. The applicant would therefore require leave to appeal from those orders out of time. No such application for leave to appeal was lodged by the applicant. The application for extension of time to file and serve a notice of appeal is thus incompetent. However, assuming that the applicant should be treated as if also seeking leave to appeal from Branson J's interlocutory decision, I would not allow it. 41 A grant of leave would be futile because the applicant's appeal would have been barred by the doctrine of res judicata. The application of this doctrine in the context of judicial review was discussed and analysed by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 ('Somanader'). I adopt his Honour's reasoning. In Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054, Merkel J said at [33]-[37]: 'I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s 75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding. … In a case involving res judicata the court has no discretion to allow the proceeding to continue: Somanader at 688 [44]. The same is applicable to cases of issue estoppel: see Sharma v State Rail Authority of New South Wales (1998) 85 FCR 391 at 397. 42 In determining whether res judicata applies, the primary question is whether the cause of action litigated in the principal proceedings is the same as that being pursued presently. It is clear from the authorities that 'the identity of the causes of action in question is to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded': Somanader at 690. 43 In Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406, Gummow J concluded that a court should focus on the substance of the two proceedings rather than their form (at 418): "It is said that for the estoppel to operate, the cause of action in each proceeding must be the same: Ramsay v Pigram (at 280). 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 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. Sir William Brett MR directed attention to this third sense by asking 'whether the same sort of evidence would prove the plaintiff's case in the two actions': Brunsden v Humphrey (1884) 14 QBD 141 at 146. In that litigation the first action had been brought in a county court and the second in the High Court. 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, as indicated above, 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, to which I have referred earlier in these reasons. 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.' See Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473. Further, characterisation by regard to substance rather than form assists in cases where the first action was brought in a foreign forum, for the doctrine applies in such circumstances…." 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. 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 BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221. It is also unnecessary to consider the applicant's claim that the Tribunal misapplied the decision in Applicant A as to characterising a 'particular social group'. 46 As far as I can see, the only avenue that might avail the applicant is to lodge an application to the Minister under s 417 of the Act to substitute for the decision of the Tribunal a decision in favour of the applicant's application for a protection visa. The applicant was apparently an upstanding member of the Colombian police force and, if returned to Colombia, faces the prospect of persecution for the part he played in the destruction of a narcotics factory. This may well be an appropriate case for the Minister to exercise her discretion in favour of the applicant. 47 The application is dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 3 February 2004 Solicitor for the Applicant: Michaela Byers

Solicitor for the Respondent: Australian Government Solicitor