Daniel v Minister for Immigration & Multicultural & Indigenous Affairs

Background to the proceeding 3 On 26 November 2002 the High Court remitted the matter to the Federal Court (except for one aspect of the application raising issues of unreasonableness) including the leave sought by the applicant to bring part of his application out of time. The applicant seeks an extension of time for making the application for the issue of writs of certiorari and mandamus because of the period of time which has elapsed between the decision of the Tribunal and the initial application to the High Court. The time within which to bring an application for a writ of certiorari is six months after the date of the relevant judgment or order (O 55 r 17 of the High Court Rules), and in the case of a writ of mandamus it is two months (O 55 r 30 of the High Court Rules). 4 The High Court and, by virtue of the order of remittal, the Federal Court, have power pursuant to O 60 r 6 of the High Court Rules to enlarge the time in which an application can be made for these writs: Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22]. 5 The applicant is a Sri Lankan Tamil, born in February 1961. He studied arts and theology and became a minister in the Assembly of God church. He came to Australia to study and arrived on a student visa on 25 January 1995. On 5 December 1996 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa. On 28 May 1997 a delegate of the Minister refused to grant the applicant a protection visa and on 11 June 1997 he lodged an application for review with the Tribunal. On 16 July 1999 the Tribunal handed down its decision to affirm the decision of the delegate not to grant a protection visa to the applicant. 6 The applicant claimed that during the Indian Peacekeeping Forces Occupation in 1987 he took up the position of pastor at the Assembly of God church in Chenkaladi and began to help the Liberation Tigers of Tamil Eelam ("LTTE") with clothes, food and small donations. Later the applicant travelled to Colombo and India and after his return to Sri Lanka he discovered that his church in Chenkaladi had been looted and demolished. In 1992 he joined the church in Nugegoda in Colombo and later became assistant pastor. He claimed that the police were suspicious of the church and believed that he was the confidant of many Tamil suspects. The applicant maintained that he always attracted suspicion from the police. After he left Sri Lanka and came to Australia he received a letter from a relative stating that the police were searching for him. 7 The Tribunal found that the applicant had not suffered any problems that could be said to amount to persecution. The Tribunal was not satisfied that the applicant faced a real chance of persecution as a result of the events which the applicant had relied upon in relation to his connection with the LTTE. The Tribunal rejected the applicant's claim that security forces had been asking about him after he left Sri Lanka. 8 The Tribunal noted that the applicant had delayed almost two years after arriving in Australia before he applied for refugee status. The Tribunal was not satisfied that the applicant had any subjective fear of returning to Sri Lanka. The Tribunal concluded that the applicant did not have a well‑founded fear of persecution on the basis of any imputed political opinion. The Tribunal stated: "Given that nothing has happened to the applicant in the past, the Tribunal also does not accept that the applicant's leanings have come to the attention of the authorities through his involvement in any Tamil student organisations, his assistance provided to the LTTE prior to 1992 or his development of a Tamil congregation. The Tribunal also notes that the applicant was able to go to India in 1990 and return without being questioned by the authorities. As he has not been accused by the security forces in the past of supporting the LTTE, the Tribunal is not satisfied that there is any real chance they will impute an opinion of supporting the LTTE to the applicant, even if he in fact does support them. For the same reasons, the Tribunal does not accept that the applicant will be a target for questioning because of his position in the clergy." 9 On 12 August 1999 the applicant filed an application in the Federal Court for judicial review of the decision of the Tribunal under Pt 8 of the Act (as it then existed). The grounds of his application were that the decision of the Tribunal involved an error of law pursuant to s 476(1)(e) of the Act, both separately and in conjunction with s 420(2)(b) of the Act. The particulars of his grounds included the following: "Rather than considering whether or not the applicant had a subjective fear that was objectively well founded (the Chan test), the decision‑maker sought to rely on his impressions and interpreted the facts as to how the applicant should have behaved rather than considering the total claims of the applicant to see whether claims of the applicant satisfied the 'Chan' Test." 10 On 2 May 2000 North J ordered by consent that the proceeding in the Federal Court be dismissed and that the applicant pay the Minister's costs fixed at $1,500 ("the consent dismissal"). The applicant's explanation for not proceeding with the Federal Court application was: "I had to withdraw my application due to the financial constraints I encountered." 11 On 14 July 2000 the applicant caused a letter to be written to the Minister, on his behalf, requesting the Minister to exercise his power under s 417 of the Act to make a more favourable decision than the Tribunal. On 11 January 2001 the Minister wrote to the applicant informing him that he had decided not to consider exercising his power under s 417 of the Act.

Enlargement of time for certiorari and mandamus 12 The first matter to consider is whether the applicant should be granted an extension or an enlargement of time within which to apply for an order nisi for the issue of writs of certiorari and mandamus. The proper approach to take to such applications and the relevant factors and principles to take into account were considered by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495‑496. Those factors include the reason for the delay, the length of the delay, whether any decision was made at any point of time to accept the decision of the Tribunal, whether any party may be prejudiced if the extension is not granted and, ultimately, the applicant's prospects of success in obtaining an order absolute for the issue of the writs. It is also necessary to take into account the basic and fundamental principle that the Court should seek to achieve justice between the parties and that there should be an end to litigation. In Re Commonwealth of Australia; Ex parte Marks (supra) McHugh J said at 496: "In all but very exceptional cases, they [the time provisions] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court." 13 The applicant's explanation for the delay is unsatisfactory. He said that after he applied to the Federal Court for a review of the Tribunal's decision he was advised that he was not entitled to a bridging visa with a legal work permit and that he had to withdraw his application "due to the financial constraints" he encountered. These financial constraints are completely unparticularised and there is no basis upon which any assessment as to the extent or weight of those financial constraints can be made. 14 Over nine months elapsed between the order dismissing the application for review in the Federal Court and the filing of the application in the High Court. The High Court application was made prior to the handing down of the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. During that intervening period, on 14 July 2000 the letter had been written to the Minister requesting him to exercise his power under s 417 of the Act. The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. Indeed in his affidavit filed in the High Court, the applicant, after referring to the order of dismissal of his application for review in the Federal Court, said: "I was left with the only avenue of requesting the … [Minister] to exercise his power under s.417." This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal's decision was correct and that he did not intend to challenge that decision further in the Court. A similar approach has been taken in a number of cases in this Court: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Re Batuwantudawa [2003] FCA 684; Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823; Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [16]‑[20]. For reasons to which I shall refer later, I am also satisfied that the substantive ground sought to be made out by the applicant as being the error of law made by the Tribunal cannot be sustained. 15 Adopting the observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) I do not consider that there are any or sufficient exceptional circumstances which warrant allowing the extension of time. The basic submission propounded by the applicant as to the reason for the delay was his decision to seek a more favourable outcome from the Minister on humanitarian grounds, pursuant to s 417 of the Act. The applicant submitted that he acted reasonably in the circumstances in attempting to obtain a more favourable decision. However, I do not consider that the pursuit of such a decision constitutes a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge. 16 For all of these reasons I am not prepared to extend the time within which the applicant can apply for the issue of writs of certiorari and mandamus.

The issue of a writ of prohibition, injunctive and declaratory relief 17 It is still necessary to consider whether there is any basis for the issue of a writ of prohibition against the Minister, or for the grant of injunctive or declaratory relief. The Minister submitted that there was no basis upon which such orders could be made as the applicant was precluded by the consent dismissal from making the claim of error in relation to the Tribunal's decision. The Minister submitted that the applicant's claim was barred by the principle of res judicata and, in the alternative, the principles of issue estoppel and Anshun estoppel precluded the applicant from raising the matters now sought to be raised.

Res judicata 18 The fact that the application for review was dismissed by consent, is not a bar to the Minister being able to raise a claim of res judicata. An order made, or a judgment given, by consent binds the parties to the judgment or order as effectively as if the judgment had been given, or the order made, after a fully contested hearing: Re South American & Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 at 45; Spencer Bower, Turner & Handley, The Doctrine of Res Judicata (3rd edn, Butterworths, London, 1996) at pars [38]‑[40]. The only difficulty that can arise in determining whether a consent order raises an issue of res judicata, is in specifying the "res", or the matter, or the cause of action which has already been determined by the Court: Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502. 19 In Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677, Merkel J held that dismissal by consent of proceedings brought under Pt 8 of the Act gave rise to a res judicata in respect of a later proceeding. In the present case, the cause of action relied upon by the applicant is an attack upon the decision of the Tribunal. An attack was also made upon the decision of the Tribunal in the proceeding before North J the subject of the consent dismissal. However, in the proceeding before North J, the cause of action arose under Pt 8 of the Act (in the form in which the Act then existed), whereas the cause of action in the matter presently before the Court arises under s 75(v) of the Constitution of the Commonwealth of Australia (1901 (Cth) ("the Constitution"). 20 The cause of action in the proceeding which was the subject of the consent dismissal was one which alleged errors of law within s 476(1)(e) of the Act as it then existed. The cause of action relied upon in the present proceeding is one based upon the Tribunal having committed an error of law. I adopt with respect, and apply to the present circumstances, the observations of Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (supra) at [65] where his Honour said: "The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the two sets of proceedings differ in any material respect. Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case." 21 Although the cause of action relied upon in the present case arises under s 75(v) of the Constitution, whereas the proceeding before North J arose under Pt 8 of the Act, it should be noted that s 75(v) of the Constitution is not a cause of action in itself but rather a source of federal jurisdiction: see Somanader at [59]‑[62]. 22 The applicant submitted that the cause of action in each of the two proceedings is not the same, as a matter of substance. The applicant submitted that the present application sought review on the ground that the Tribunal failed to deal with a particular claim made by the applicant or failed to take into account relevant considerations, whereas the earlier proceeding claimed that the Tribunal had misconstrued and misapplied the law relevant to the particular issues before it. In other words, the applicant submitted that he had previously sought review for an error of law but now his claim is the Tribunal's failure to deal with a particular issue. However, both matters result in a cause of action based upon an error of law and as such the requisite commonality between the two causes of action exists. 23 In the proceeding before North J the applicant raised, as a cause of action under s 476(1)(e) of the Act, the ground that the Tribunal made an error of law. The particulars relied upon under that ground included the allegation that the Tribunal adopted the course of relying on the decision‑maker's impressions and "interpreted the facts as to how the Applicant should have behaved rather than considering the total claims of the applicant". The present cause of action relies upon a failure by the Tribunal to consider or address a particular claim. Such a cause of action falls within the ambit of the claim made under s 476(1)(e) in the earlier proceeding. Accordingly, the Minister's claim that the matter before the Court is res judicata is made out.

Anshun estoppel 24 Even if the doctrine of res judicata did not apply I am satisfied that the applicant should be estopped from bringing the present proceeding by reference to the Anshun principle explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 25 An Anshun estoppel arises where the subject‑matter now sought to be raised was so relevant to the subject‑matter in the first proceeding that it would have been unreasonable not to raise it in the earlier proceeding. The applicant submitted that the claim which he now wishes to make, that is to say that the applicant had a fear of persecution as a result of information provided to Sri Lankan authorities by members of his former congregation, was not specifically dealt with by the Tribunal in its reasons. 26 The applicant submitted that on 2 May 2000, the day the application was dismissed by consent, the decision in Yusuf (supra) had not been handed down and that prior to Yusuf it was not apparent that the review grounds set out in s 476(1)(b) and s 476(1)(c) of the Act could encompass review for constructive jurisdictional error, including the ground that the Tribunal failed to address a claim of the applicant. However the applicant conceded that prior to Yusuf there was a ground of review available to him, namely that the Tribunal had failed to consider an integer in the applicant's claim: Sellamunthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at 292‑294. 27 In the course of the hearing, counsel for the applicant conceded that the Anshun principle of estoppel did apply. However, he submitted that even if the claim or matter was unreasonably omitted from an earlier proceeding, the Court retained a discretion not to apply the Anshun principle in special circumstances. He referred to Macquarie Bank v National Mutual (1996) 40 NSWLR 543 at 558 (see also Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296). 28 The applicant submitted that there were special circumstances which warranted the Court exercising its discretion not to apply the Anshun principle in the present circumstances. These were: · The outcome of the proceeding will have serious consequences for the applicant and will determine whether he is to be permitted to remain in Australia; · The Minister is not subject to the same costs process as other litigants; · The review of refugee matters involves a complex procedure under the Act, in the Federal Court and the High Court; · The state of the authorities prior to Yusuf was such that it was reasonable for the applicant not to rely on jurisdictional error as a ground of review in his earlier application. 29 I accept that the outcome of this application will have serious consequences for the applicant if it is determined against him. However, I do not consider that those consequences constitute a special circumstance warranting a disregard of the Anshun principle. I make the same observation in relation to the other special circumstances relied upon. They are all circumstances that apply, in one form or another, in many cases which come before the Court. 30 For all of these reasons the application for the issue of a writ of prohibition and declaratory and injunctive relief should be dismissed.

Error by the Tribunal 31 I noted in par [14] above that I was satisfied that the error of law relied upon by the applicant could not be sustained. I reached that conclusion for the following reasons. The substantive error relied upon by the applicant was that the Tribunal did not address the applicant's claim that he had a fear of persecution as a result of information provided to Sri Lankan authorities by the congregants of his church. The Minister disputed the proposition that such a claim had been made. Although it is not found in the express terms articulated by counsel for the applicant, there was an oblique reference, made by the solicitor for the applicant and found in the transcript before the Tribunal, that after cordon and search operations were carried out a hostile church member may have "dobbed" in relation to the applicant that there were Tamils moving around. For present purposes I am prepared to accept that this claim was advanced before the Tribunal. 32 The Minister accepted that a failure by the Tribunal to address a fundamental claim, or take into account a relevant consideration, may amount to a jurisdictional error in the manner outlined in Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration & Multicultural Affairs v Yusuf (supra) at 351‑352. However, the Minister submitted that no such failure had occurred in the present case and that the Court should exercise caution in concluding that an issue had not been dealt with, in a situation where the issue is referred to in earlier comprehensive reasons. The Minister submitted, and I agree, that I should adopt and apply, inter alia, the following observation of the Full Court (French, Sackville and Healy JJ) in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at par [47]: "The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked." 33 I am satisfied that the Tribunal recognised and acknowledged the claim that the applicant faced risks as a result of information provided to Sri Lankan authorities by congregants. The Tribunal, at page 7 of its reasons, noted the applicant's adviser's submission that the applicant faced "risk from checkpoints, from cordon and search operations and from information provided by others". I consider that the reference to "others" includes congregants or hostile church members. So much follows, in particular, from the passage in the Tribunal transcript upon which the applicant relied in his submissions. 34 I am also satisfied that the Tribunal addressed this issue in its reasons as express findings given by the Tribunal and referred to in par [8] above. In these findings the Tribunal addressed and determined the range of issues which were raised by the applicant in relation to his fear of persecution as a result of associations with the LTTE. It is in the last sentence that the Tribunal addressed the issue of a fear of persecution arising out of his position in the clergy, which includes the applicant's concern that he may be "dobbed" by hostile church members. Such a finding resolves any claim in relation to the consequences of him being a member of the clergy. 35 The application will be dismissed with costs. 36 I wish to record the Court's acknowledgement of, and appreciation for, the submissions made on behalf of the applicant by counsel who appeared pro bono. The Court was greatly assisted by the comprehensive written submissions prepared by pro bono counsel and the manner in which those submissions were presented at the hearing. I certify that the preceding thirty‑six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 29 January 2004 Counsel for the Applicant: Mr A Ritchie who appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor