Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

The COURT: 1 This is an appeal from a judgment of Jacobson J dismissing an application for Constitutional writs pursuant to s 75(v) of the Constitution of the Commonwealth of Australia (Applicants S503/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372). The proceeding was remitted to this Court by Heydon J of the High Court on 16 February 2004 pursuant to s 44 of the Judiciary Act 1903 (Cth). The relief sought was prohibition directed to the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and certiorari and mandamus directed to the Refugee Review Tribunal (the Tribunal) aimed at quashing and preventing enforcement of a decision of the Tribunal. 2 A brief chronology of relevant events is as follows. 3 The appellants are husband and wife. They are citizens of Sri Lanka who arrived in Australia on 16 August 1999 and lodged an application for protection visas on 17 September 1999. No separate claim was made on behalf of the wife and her application turns entirely on that of her husband, who is the real applicant. A delegate of the Minister refused the application on 20 March 2000. Application for review of that decision by the Tribunal was received on 3 April 2000. By decision of 22 September 2002, handed down on 16 October 2002, the Tribunal affirmed the decision not to grant the protection visas. The appellants were represented by solicitors in relation to the dealings with the Department and with the Tribunal. 4 On 7 November 2002 the appellants brought a proceeding in the Federal Magistrates Court pursuant to s 39B of the Judiciary Act 1903 (Cth)seeking certiorari prohibition and mandamus against the Minister and the Tribunal. On 16 June 2003 Driver FM dismissed the application and gave detailed reasons for that decision. An appeal against that decision was discontinued. On 16 September 2003 the current proceeding was commenced in the High Court. The relief sought is indistinguishable from that sought in the proceeding in the Federal Magistrates Court. 5 Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process. There could not be a clearer case for the application of those principles (including Anshun estoppel). There is no hint of any basis for avoidance of them. It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]-[39] (special leave refused 4 February 2005). This proceeding is a transparent attempt to relitigate the same matter that was previously litigated. The attempt should not have gone as far as it did. 6 Jacobson J took the course of considering the merits of the attack upon the Refugee Review Tribunal's decision afresh. In our opinion, that course was unduly favourable to the appellants. In the event, all grounds of attack were rejected in a reasoned decision. 7 The appellants again seek to argue the merits of the matter today. In our opinion, no appealable error has been identified in the reasons of Jacobson J. We cannot improve upon those reasons for rejecting the claims of the appellants. 8 The appeal is dismissed with costs.