MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 5 November 2004, the applicant filed both a notice of appeal and an application for leave to appeal against the judgment of Federal Magistrate McInnis given on 18 October 2004. The respondent, on 1 December 2004, filed an objection to the competency of the appeal, on the ground that the judgment of 18 October 2004 was an interlocutory judgment, and thus leave to appeal was required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). On 1 February 2005, an application was also made for an extension of time in which to file and serve a notice of appeal. The Chief Justice has directed that the matter be heard and determined by a single judge: see Federal Court of Australia Act 1976 (Cth) s 25(1A). 2 The history of the proceeding may be shortly stated. On 19 May 2004 the applicant sought review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 January 2001, in which the Tribunal affirmed a decision to refuse the applicant a protection visa ("the Tribunal's decision"). The courts had previously considered the Tribunal's decision. On 21 August 2002, Ryan J of the Federal Court of Australia dismissed, with costs, the applicant's application for review of the Tribunal's decision, on the basis that the Tribunal was not shown to have committed any reviewable error of law: see [2002] FCA 1041. A Full Court of the Federal Court affirmed his Honour's decision on 20 February 2003: see [2003] FCAFC 72. The applicant subsequently filed an application for an order nisi in the High Court of Australia, which was remitted to the Federal Court. Heerey J refused the application on 3 May 2004; and the applicant did not appeal from his Honour's decision. 3 In response to the application made on 19 May 2004, the respondent filed, amongst other things, a notice of motion moving the Court for orders that the application be dismissed with costs. The respondent submitted, in support of its motion, that the applicant was precluded or estopped from raising the same cause of action as had been considered in the previous proceedings, by reason of res judicata or issue estoppel. The respondent's submission was successful. The Federal Magistrate found that the application was "effectively an abuse of process" and summarily dismissed the application. 4 The respondent did not press the objection to the competency of the appeal at the hearing, noting that the applicant had in fact filed an application for an extension of time in which to file and serve the notice of appeal. 5 As it happens, no leave to appeal was, in any event, required in this case. 6 The distinction between an interlocutory and final judgment is not always a clear one. In this case, however, the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 ("Anshun (No 1)") provides an authoritative answer. In Anshun (No 1), the High Court unanimously held that an order that a proceeding be stayed as an abuse of process on the grounds of estoppel and res judicata was a final judgment, for the purposes of appeal. The approach of the High Court in Anshun (No 1) is equally applicable in relation to applications for leave to appeal in this Court: see, e.g., The Lardil Peoples v State of Queensland (2001) 108 FCR 453 at 480 [85]-[86] per Dowsett J. Anshun (No 1) applies with even stronger force in this case than in case of The Lardil Peoples, because the proceeding from which the current appeal is brought was dismissed on the same bases as in Anshun (No 1). 7 As the judgment under appeal is a final judgment of the Federal Magistrates Court, the notice of appeal was filed within the time stipulated in O 52 r 15(1)(a). 8 The grounds of the appeal are, in essence, that the Federal Magistrate erred in law by not finding that the applicant's grounds of review were made out. The affidavit filed in support states that the applicant disagrees with the judgment below "on the grounds that my claims were not considered properly and not [in] accordance with law. The decision [is also a] breach of natural justice. His Honour only considered the arguments of the [M]inister and dismissed my case. Therefore this decision was unreasonable and inappropriate." At the hearing of the appeal, the applicant reiterated that the Tribunal's decision was wrong and that he was in fear for his life if he returned to Sri Lanka. 9 The grounds of the application for review to the Federal Magistrate were not stated with any particularity. In the initiating application, the applicant said that he did not agree with the Tribunal's decision "because there was an error"; and this decision was "unreasonable and inappropriate". There was nothing to indicate that this latter allegation had any particular basis, apart from applicant's dissatisfaction with the decision. 10 The applicant had the benefit of counsel in the proceeding in this Court before Ryan J in 2002, although unrepresented on the present occasion. It appears from the judgment of Ryan J that a limited, and ultimately unsuccessful, attack was then made upon the reasons for the Tribunal's decision. There is nothing in the generality of the current application that might indicate that the applicant is seeking to rely on any ground other than that previously considered by Ryan J. At the hearing the applicant was unable to specify any new ground, although he repeated his submissionthat the Tribunal's decision and that of the Federal Magistrate was wrong. 11 In the recent case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 ("Wong"), Lindgren J dealt extensively with the question of whether the principles or doctrines of res judicata, issue estoppel and Anshun estoppel apply to proceedings in the nature of judicial review of administrative action. After reviewing the authorities, his Honour followed previous decisions of single judges of this Court in holding that res judicata can operate as a bar where an earlier proceeding was in the nature of a judicial review of an administrative decision: see Wong at [71]. His Honour also accepted that he was constrained by the decision in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 to find that the principle or doctrine of issue estoppel also applied to such proceedings: see Wong at [70]. Both of these applied independently of any exercise of discretion. By contrast, the application of Anshun estoppel - which bars a party from raising any point which properly belonged to the subject of earlier litigation which that party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding - is subject to some discretion. In special circumstances, so his Honour noted, in a case of Anshun estoppel, a court may exercise its discretion to allow a subsequent proceeding to continue: Wong at [49], [61]-[64], [149]. I agree with Lindgren J's analysis of the state of the authorities and, to the extent that I have any discretion, I would follow them in disposing of this appeal. The applicant did not raise any ground for review in this proceeding that had not been considered previously and thus, in this case, there is no scope for any exercise of discretion. 12 No error is shown in the finding of the Federal Magistrate that the application before him "simply seeks to relitigate matters which have already been the subject of due process" and have been "fully and appropriately agitated". Further his Honour correctly decided that the doctrines of res judicata and issue estoppel apply to preclude further consideration of the application of 19 May 2004 that was made in the Federal Magistrates Court. Having carefully read the reasons of his Honour in the Federal Magistrates Court, I do not find error. 13 For these reasons, the appeal is dismissed. 14 On the hearing of the appeal, the applicant drew attention to his lack of legal representation. It should be noted, as I have said, that he was repeated in the proceeding before Ryan J. The applicant's lack of representation does not bear on the outcome of this appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.