BC v Minister for Immigration & Multicultural Affairs

the proceedings and judgment at first instance 10 The appellant's "second" case at first instance was based on the reasoning, obiter, of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 650-659. That is, jurisdictional error on the Tribunal's part in reaching the state of non-satisfaction that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The jurisdictional error asserted was that the Tribunal reached that state of satisfaction so unreasonably that no reasonable decision-maker could properly have arrived at it. It is convenient to refer to that ground, as the primary judge did, as "jurisdictional unreasonableness". 11 The respondent put forward some five responses to the appellant's arguments. As matters transpired, his Honour decided only three issues. 12 The first was whether the appellant was precluded from pursuing the matters remitted to this Court by the High Court, by reason of the res judicata doctrine or the principle explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 13 Sackville J held that the appellant was not barred by res judicata or cause of action estoppel from pursuing the remitted proceedings. However, his Honour held that it was unreasonable for the appellant not to have relied, in the earlier proceedings before Madgwick J, on the jurisdictional unreasonableness argument. The appellant does not dispute that conclusion. 14 The primary judge then considered whether there were special circumstances which warranted the Court declining to apply the Anshun principle to the remitted proceedings. His Honour's conclusion was that there were no such special circumstances. The appellant challenges that conclusion. 15 Sackville J appreciated that, having concluded that there were no special circumstances, it was not strictly necessary to consider the two further issues, but he proceeded to do so. 16 First, his Honour held that he was bound by a decision of the Full Court of this Court in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59 where it was held (by a majority) that s 476(2)(b) of the Migration Act 1958 (Cth) ("the Act") precludes an applicant for judicial review of a decision of the Tribunal relying on jurisdictional unreasonableness in this Court. That subsection provides that two specified grounds of review are not grounds upon which an application may be made under s 476(1). The second ground, specified in subsection 476(2)(b), is: "(b) That the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power." 17 [On 5 March 2002 (three months after the primary judge's decision) the High Court of Australia granted special leave to the applicant in Gamaethige to appeal from the decision of the Full Court in that matter.] 18 Secondly, his Honour made some observations about jurisdictional unreasonableness. He noted that the borderline between judicial review on the merits and consideration of whether a finding as to a jurisdictional fact is unreasonable in the relevant sense may be very difficult to identify. Then his Honour referred to an observation by Gummow J in Eshetu (at 654): "… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question." 19 The primary judge then said, that despite those two comments, the contention that the Tribunal's decision was affected by jurisdictional unreasonableness had "some force". His Honour also said that the Tribunal's reasons were difficult to follow. He concluded his description of the relevant portions of the Tribunal's reasons by saying (at [69]): "The extract from the RRT's reasons reproduced in the previous paragraph seems to me to come close to a finding that was unsupported by any probative material or logical grounds. It is also arguable that the finding was one upon which the ultimate decision of the RRT was based. Because it is unnecessary to do so, I express no final view on these questions." 20 Counsel for the appellant had not disputed that if the Anshun principle applied to the remitted proceedings, the appropriate order was to dismiss them. His Honour did so.

the appeal 21 There were three questions in the appeal from the judgment of Sackville J. The first was whether the primary judge erred in finding that there were no special circumstances which warranted the Court declining to apply the Anshun principle. The second was whether this Court should follow the decision of the Full Court in Gamaethige. The third question was whether the Tribunal's decision was vitiated by jurisdictional error amounting to jurisdictional unreasonableness. An answer unfavourable to the appellant to any of those three questions would result in the appeal being dismissed.

Whether there were special circumstances? 22 Ms N Abadee, counsel for the respondent, submitted that the primary judge's conclusion that there were no special circumstances was an exercise of discretion and that we should not interfere with it unless error of the kind referred to in House v R (1936) 55 CLR 499 at 404-5 was disclosed. 23 Counsel referred us to three authorities for that proposition. The first was Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 at 89, a decision of the Full Court of the Supreme Court of Victoria. Anshun (No 2) was the decision affirmed by the High Court in Anshun. 24 In my view, a careful reading of Anshun (No 2) shows that it is not authority for the proposition advanced on behalf of the respondent. In that case the primary judge, McGarvie J, held that the claim by the Port of Melbourne Authority for indemnity under its agreement with Anshunproperly belonged to the matter which was the subject of its claim for contribution in the damages action brought by Mr Soterales and that it was reasonably practicable for the Authority to have claimed its contractual right of indemnity in its proceeding against Anshun,within the action brought by Mr Soterales. McGarvie J took the view that once he reached that conclusion, a judicial discretion arose to grant or refuse a perpetual stay of the second action, in the exercise of which regard was to be had to all the circumstances of the case. The Full Court said this (at 89): "Mr Hulme [senior counsel for the Authority] submitted that the exercise of discretion had miscarried. We find it unnecessary to set forth his arguments in this regard, for we accept the submission of Dr Pannam that the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule (Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, at p 590). . . . Since in the present case the learned Judge, notwithstanding a careful investigation of the authorities, regarded himself as called upon to exercise a general discretion, as opposed to determining whether special circumstances in the sense indicated by their Lordships in the Yat Tung Case existed, it falls to this Court to make that determination." 25 There was no discussion in the reasons for judgment of Gibbs CJ, Mason and Aickin JJ on this point in Anshun, although their Honours upheld the Full Court's decision. Murphy J, in a brief reference at 605, expressed the view that there was no discretion where the principle applied, but was not specifically addressing the question of special circumstances. Brennan J took a different approach to that taken in the main judgment and held that the Port Authority's right of indemnity had merged in the contribution orders, thus barring the second action. His Honour's conclusion was expressed at 613 in the following terms: "As the Authority's right of indemnity merged in the contribution orders, the second action is barred. There is no discretion to be exercised." 26 His Honour explained that the view that there was a discretion or power stemmed from a reference to special circumstances in the often-cited passage from Henderson v Henderson (1843) 3 Hare at 115 [67 ER at 319] and was a reference to the former Chancery practice and principles which governed the discretion to give leave to file a bill of review to impeach a decree which had been signed and enrolled. 27 The second authority relied upon by the respondent was Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. It is true that at that page Clarke JA expressed the view that even where it is found that a point was unreasonably omitted from a previous case, the Court retains a discretion not to stay the second proceeding if special circumstances exist. However, that observation was obiter dictum because his Honour found on the facts that the Anshun principles did not apply. Priestley JA agreed with that conclusion. Powell JA (at 617-618) expressed the view, again obiter, that it would seem that where an Anshun estoppel is raised, the Court retains a residual discretion as to whether or not such an estoppel might be given effect. 28 In the third case cited on behalf of the respondent, Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, a Full Court of this Court at 296, referred to the passage in the opinion of the Privy Council in Yat Tung at 590 as demonstrating: "… that their Lordships thought that "special circumstances" comprehended situations where, for broad discretionary considerations relating to notions of justice, Henderson v Henderson should not be applied with full rigour." 29 Again, in our view, their Honours cannot be taken to have decided the question whether a conclusion about the existence of "special circumstances" amounted to the exercise of a discretion in the House v R sense. Their Honours assessed for themselves whether there were special circumstances and did not seem to be troubled by any notion of restraint in reviewing the primary judge's decision on the Anshun point, although they agreed with that decision. 30 In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only "discretion" which the court may exercise not to apply the Anshun principle is if it finds that "special circumstances" exist. That is essentially a finding of fact to which the rule in House v R has no application. 31 The special circumstances on which the appellant relied can be summarised as follows: (a) the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings; (b) the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants; (c) review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court); (d) the state of the authorities at the relevant time was such that it was reasonable not to rely on jurisdictional unreasonableness; (e) a High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 had opened up the possibility of judicial review on the ground of jurisdictional unreasonableness; (f) the proposed ground of review was meritorious especially in view of the fact that the High Court had granted special leave in Gamaethige; and (g) the appellant could not obtain redress by suing counsel for neglecting to take the point in the proceedings before Madgwick J. 32 In view of the conclusion, which the Court has reached below, that we should follow the Full Court's decision in Gamaethige, it is strictly not necessary for the Court to decide whether special circumstances exist. 33 However, as we consider that some of the circumstances advanced by the appellant, when taken cumulatively, amount to special circumstances, we hereafter provide brief reasons for that view. 34 In Stuart v Sanderson (2000) 100 FCR 150 the applicant had sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of an authorised delegate of the Chief of the Army confirming the decision of an Army reviewing authority upholding three convictions of the applicant and her discharge from military service. The fact that the applicant had not been legally represented during the military proceedings was referred to at the hearing of the application but not pressed as a ground of review. Beaumont J dismissed the application. The applicant then brought proceedings, again in the Federal Court, pursuant to s 39B of the Judiciary Act 1903 (Cth). Madgwick J held that it was unreasonable, in the Anshun sense, for the applicant not to have relied upon the applicant's lack of legal representation in the proceedings under the ADJR Act. He then considered whether there were special circumstances which could avoid the prima facie operation of the rule. His Honour at [33] expressed the view that as issue estoppel was not part of Australian criminal law, there was even less justification for importing an Anshun barrier against a defence which an accused might wish to raise. His Honour then drew an analogy between the circumstances of the case and criminal proceedings saying: "The analogical force of this [that the Anshun principle ought not to apply to criminal proceedings in a manner which prevents an accused person from asserting his or her innocence] should, in my view, be given weight in the present case: here, the applicant seeks belatedly to raise a question which could have been raised in the criminal proceedings or in earlier civil proceedings concerning that criminal process. The Court should be slower to shut her out than if merely civil rights or remedies were at issue throughout." 35 His Honour then referred to the matters relied upon as amounting to special circumstances. These were that: · the applicant had been denied a then-existing, important right of every soldier (to legal representation when charged with offences); · the consequence of allowing her to take the point would not go beyond inconvenience and expense (albeit to a not insignificant degree); and · the respondents could at least in part be compensated by a costs order, were litigants only in an official capacity, and were unlikely to feel the other pressures which often weigh on individuals who are litigants. 36 His Honour found that these were special circumstances. 37 The primary judge in this matter distinguished Stuart v Sanderson on the basis that it did not involve the application of the criminal law or of criminal sanctions, notwithstanding the possible serious consequences for the applicant. 38 In the Court's view, a combination of the four factors referred to above at subparagraphs (a), (b), (c) and (d) amounted to special circumstances. In the context of this case, we would not regard any one of those four factors on its own as amounting to special circumstances. In the Court's view the first, third and fourth factors are of significantly greater weight than the second factor to which we would attach only marginal weight. In relation to the fourth factor (the state of the authorities), there may appear to be some contradiction in the proposition that for Anshun purposes it was unreasonable on the appellant's part to fail to raise jurisdictional unreasonableness in his first application, on the one hand, and, on the other hand, to have regard to the degree to which the case law on jurisdictional unreasonableness had developed at the relevant time when considering whether special circumstances exist. However, the two points of view can be reconciled by treating the appellant's use of the word "reasonable" as meaning that mitigating circumstances existed. From a technical and procedural viewpoint, failure to raise jurisdictional unreasonableness was unreasonable in the Anshun sense, but in our opinion that is excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition and there was little guidance in the particular context of the Act. Now that the High Court has granted special leave to appeal in Gamaethige, it is likely that a clearer picture of the law will emerge. This leads to the next question in the appeal, namely whether we should follow the decision of the Full Court in Gamaethige.

Whether we should follow gamaethige? 39 As discussed above, in Gamaethige a Full Court of this Court held, by a majority, that s 476(2)(b) of the Act precludes an applicant for judicial review of a decision of the Refugee Review Tribunal from relying on jurisdictional unreasonableness. Stone J (with whom Hill J agreed) referred to Gummow J's discussion on the subject of an absence or excess of jurisdiction arising out of a finding of a jurisdictional fact where such finding was so unreasonable that no reasonable decision-maker could properly have arrived at it. Her Honour then said this, at para [92]: "When one considers the provisions of the Act which govern judicial review, it is clear that the legislature intended such review to be limited; see also the explanatory memorandum which accompanied the Migration Reform Bill 1992 (Cth). In this context, it is not appropriate to limit the effect of the restriction imposed by s 476(2) by seeking to graft it onto common law stock. I see no reason to give the words of s 476(2)(b) a meaning other than their conventional meaning or to be unduly technical in their interpretation." 40 Her Honour then referred, with apparent approval, to the comments made by Madgwick J in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 436 at para [30] to like effect. 41 It is clear that a Full Court of this Court is free to depart from a previous decision of a Full Court: see the discussion in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at paras [24]-[28]. It seems to be well established that this Court should follow a decision of another Full Court unless it is clearly wrong: see Hill J in Gamaethige at para [13]; Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 333 and Brooks v Commissioner of Taxation (2000) 100 FCR 117 at paras [69]-[70]. 42 In the present appeal the appellant has not demonstrated that the decision of the Full Court in Gamaethige was clearly wrong. In those circumstances, we should follow it. Accordingly, it is not necessary to consider the third question in the appeal. The appeal should be dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 23 July 2002 Counsel for the Appellant: Mr R Killalea

Solicitor for the Appellant: Messrs Ian D Graham & Associates