M154 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

The previous proceedings 4 In his reasons for judgment on the present appellant's earlier application for review of the Tribunal's decision, sub nom VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 388, Heerey J concluded, at [4]-[8]; '4 The application for review in this Court was filed on 18 February 2002. The only grounds stated were:

"Review the tribunal decision on grounds under section 476 of the Migration Act 1958 (further details and amended application to be forwarded.)"

5 No such amended application or further details have been filed or served.

6 This application is governed by the Migration Act 1958 (Cth) (the Act) as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Thus the only jurisdiction of the Court is derived from section 39B of the Judiciary Act 1903 (Cth). The Court has to apply s 474 of the Act, which was introduced by last year's amendment. The decision in question is a "privative clause decision". Section 474(1) provides:

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

7 A decision to refuse a protection visa is a privative clause decision for the purposes of s 474(1). It is accepted by counsel for the Minister that the apparent exclusion of the Court's jurisdiction would not apply to the very limited grounds formulated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, namely, that the Court's jurisdiction will not be excluded where the decision under question was not a bona fide attempt to exercise the power or does not relate to the subject matter of the legislation or is not capable of reference to the power given to the decision-maker.

8 I would follow the construction given to s 474(1) by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 at [13] to [37] and by Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 at [11] to [31]. There is clearly no basis in the present case for any contention that the limited Hickman grounds are available.'

5 On appeal from Heerey J's judgment, a Full Court of this court (Marshall, North and Merkel JJ) in VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 234 referred to his Honour's reasons for dismissing the application and continued, at [6]-[7]; 'Before the Full Court, the appellant was represented by senior counsel who appeared pro bono. Senior counsel argued that the RRT had made a jurisdictional error and consequently, s 474 does not preclude relief. It was contended that the jurisdictional error was that the RRT ignored relevant material in a way that affected the exercise of power. The appellant's written submission stated:

"The Applicant submits that he told the RRT at the hearing of his application that he was threatened with death if he complained to the police and at that time the police "followed the line of government" so that it was useless to complain to the police at that time, and that sometimes money went to the police.

In its reasons the RRT rejected the Appellant's claim because it considered that if his problems were as serious as he claimed he could have reported his concerns to the police, which he failed to do. However, it failed to take into account his said explanation for such failure and therefore made wrong findings."

Senior counsel submitted that the appeal should be adjourned until the full bench of five judges specially constituted to consider the scope of s 474 has delivered judgment but accepted that if the Full Court was not satisfied that there was jurisdictional error there was no basis for it to adjourn the hearing of the appeal.'

6 After referring to two passages from the reasons of the Tribunal, the Full Court concluded, at [10]-[12]; 'In our view, on a fair reading of the RRT's reasons it is implicit, if not explicit, that it did not accept the explanation proffered by the appellant for not reporting the matters of which he complained to the police. For the reasons it gave, the RRT did not accept the appellant's version of events and made findings adverse to his credit. In our view the real criticism of senior counsel for the appellant is that the RRT attached little or no weight to the appellant's explanations for not going to the police but that is a matter going to the merits of the appellant's claims, rather than to any jurisdictional error in the determination of those claims.

We are not prepared to infer that the RRT's assessment was not made in the light of all the evidence, including country information that addressed the issue of whether citizens could avail themselves of the protection of law enforcement authorities. Accordingly, we do not accept the contention that the RRT failed to take into account the appellant's explanation for not reporting his complaints to the police. It must follow that the alleged error on which the appellant's argument is based is not made out, with the consequence that it is unnecessary to consider whether, if it was made out, the error could constitute jurisdictional error.

An additional ground for the RRT's finding that the appellant does not have a well founded fear of political persecution if he returned to Sri Lanka, is that the UNP is now in government and therefore the State will afford protection to the appellant if he returns to Sri Lanka. Thus even if, contrary to our view, an error was made by the RRT in relation to the appellant's explanations for not reporting his complaints to the police, that error did not affect the outcome of its review.'

The decision of the Federal Magistrates Court 7 In his reasons published on 30 April 2004, Phipps FM noted that the application before him had been commenced in the High Court on 6 September 2002 and sought prohibition, certiorari and mandamus in relation to the decision of the Tribunal of 22 January 2002. The learned Federal Magistrate also noted that the application had been remitted by Hayne J on 7 February 2003 to the Federal Court and had thence been transferred on 24 April 2003 to the Federal Magistrates Court. At [4] of the same reasons Phipps FM recounted the previous proceedings at first instance and on appeal in the Federal Court, including the fact that on the appeal the appellant had been represented by Senior Counsel who had advanced "jurisdictional arguments". Accordingly, it was concluded; '4. … … In Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 [2000] FCA 1192 Merkel J decided that principles of issue estoppel and res judicata applied in a situation which is indistinguishable from the current situation. That is an application which had been dealt with in the Federal Court dismissing appeals against decisions of the tribunal to refuse a visa.

5. Subsequently an application commenced in the High Court and was remitted to the Federal Court in relation to the same tribunal decision. In this application the applicant has had the opportunity to put any arguments that could be put. The documents filed in the proceedings in the Federal Court contain no grounds other than general grounds for review but given the applicant had representation in the Full Court of the Federal Court, he must have put all arguments forward which could be put. In those circumstances the principles of res judicata must apply, which means that the applicant cannot commence a separate application in a different court, in this case the High Court. The application must be dismissed.'

Disposition of the appeal 8 The affidavit filed by the appellant in the High Court when he initiated the present proceedings purported to exhibit "a copy of the draft order nisi I would ask the Court to make," but, the document exhibited contained no grounds and did not even specify the forms of prerogative relief, namely, prohibition, certiorari and mandamus, which Phipps FM identified as being sought by the appellant. 9 However, the 'draft" notice of appeal to this Court from the orders of Phipps FM indicates that on the appeal the appellant would seek those forms of relief and alternatively "an injunction compelling the respondent to cause the Tribunal to consider and determine according to law the application for a protection visa on 9th November 2001." The grounds specified in the "draft" notice of appeal were as follows; '2. His Honour erred in finding that the Refugee Review Tribunal decision was not affected by jurisdictional error.

3. His Honour erred in finding that the Refugee Review Tribunal ("the Tribunal") did not breach the rules of natural justice and procedural fairness.

4. His Honour erred in not finding that the Refugee Review Tribunal did have an obligation to give notice of all adverse findings to the applicant.'

10 The Full Court of five judges referred to in the extract from the reasons of the Full Court in VBAH quoted at [5] above was convened to hear and determine NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 in which judgment was given two days after that of the Full Court in VBAH. Although the conclusion of the majority of the Full Court in that case was not followed by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, that did not invalidate the reasoning of the Full Court in VBAH that in that case there had been no jurisdictional error by the Tribunal. 11 The grounds which the appellant has sought to raise since instituting the present fresh proceedings in the High Court, and while those proceedings were on foot in the Magistrates Court, have, despite their extreme generality, been confined to various species of jurisdictional error. Prima facie, therefore, the present proceedings attract the application of the doctrines of res judicata, issue estoppel and what is called Anshun estoppel. That application is not displaced by the fact that the present proceedings have been initiated in the original jurisdiction of the High Court under s 75(v) of the Constitution whereas the earlier proceedings in this Court in VBAH had been brought under Pt 8 of the Migration Act 1958 (Cth). As Merkel J pointed out in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, at 691 [63]; '63 Section 75(v) gives a right to jurisdiction only, not a right to the specified remedies. The remedies must be sought in public law. The cause of action is firmly grounded in the pre-existing substantive law. While certain common law grounds of review remain open under s 75(v), the grounds available under Pt 8 of the Act to impugn a decision of the RRT require that, in general, the entitlement to relief is to be determined by the same principles of substantive law as are applicable to an action under s 75(v). Relevantly, for present purposes the jurisdictional error upon which the applicants are entitled to succeed arises on the basis of the same substantive law that is applicable in the proceeding under s 75(v). Thus, while there need not be a coincidence of causes of action in all cases, in the present case the same cause of action is relied upon in the two proceedings.

64 This co-incidence is, in a sense, dictated by the orders of Hayne J remitting to the Federal Court that part of the matter in which the grounds of relief sought reflected grounds under Pt 8 of the Act (in accordance with the limitation of the Federal Court's power to review under s 485(3)) and otherwise adjourned the application, in respect of any wider grounds, to a date to be fixed. Thus, his Honour's order ensured that the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8.

65 Accordingly, for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above. 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.'

12 Those observations can be paraphrased to apply with equal force to the present case. The right to relief which the appellant has invoked, and had to invoke, in the High Court was exactly the same as the right on which Heerey J, and later the Full Court, had adjudicated in this Court. The same factual circumstances attended both sets of proceedings which are in substance the same. The right to relief was informed by the same substantive law principles and the parties are identical. Accordingly, the order of dismissal by the Full Court on 13 August 2002 finally determined the issue of whether the Tribunal had committed an error of law in the interpretation and application of the Refugees Convention to the fear of persecution asserted by the appellant, or had failed to accord the appellant natural justice. 13 It therefore follows that the appellant is precluded by res judicata or issue estoppel from pursuing essentially the same grounds of review as were denied to him by the dismissal on 13 August 2002 of his appeal to a Full Court of this Court.

Conclusion 14 For the reasons which I have endeavoured to explain, the learned Federal Magistrate was correct in refusing to entertain the later application remitted to that Court. As I have indicated in the reasons published today in M153, had Hayne J been apprised of the full litigious history since the Tribunal's decision and the present appellant's inability to bring himself within the principles laid down in Muin v Refugee Review Tribunal (2002) 76 ALJR 966; (2002) 190 ALR 601, it is most unlikely that his Honour would have made the order of remitter which he did. It follows that the appeal must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Counsel for the Appellant: The appellant appeared in person with the assistance of a Sinhalese interpreter.

Dates of Hearing: 17 March and 11 April 2005