S394 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

The application for review before Hill J 6 The applicant applied for judicial review of the Tribunal's decision under s 39B of the Judiciary Act 1903 (Cth). The grounds for review set out in the application to the Federal Court filed on 15 January 2002 challenging the decision of the Tribunal, were as follows: 1. There was an error of law in the Tribunal's decision constituting a jurisdiction error. 2. There was procedural error in the Tribunal's decision constituting an absence of natural justice. No particulars were supplied. 7 The nature of the case advanced on behalf of the applicant and the issues raised were apparent from Hill J's reasons for judgment. His Honour referred to and considered two submissions in support of the applicant's application. First, his Honour dealt with a submission that the Tribunal had asked itself the wrong question, had placed too much emphasis on the applicant's previous travel and had taken into account an irrelevant consideration, namely, the applicant could have sought refugee status in other countries visited by the applicant. This issue arose because the Tribunal had pointed to the fact that the applicant had left and re-entered India on several occasions after incidents which the applicant identified as founding his present fear of persecution. The Tribunal had taken the approach that because the applicant had returned to India on several occasions (and not claimed asylum when outside India) indicated that he did not have the subjective fear of persecution which he later claimed in the application for protection visa. 8 Hill J concluded that the Tribunal did not address a wrong issue or take into account irrelevant considerations. His Honour considered that it was open to the Tribunal to conclude the applicant's fear of persecution was not genuine given that the applicant had returned to India from abroad on a number of occasions. Further, his Honour concluded that the Tribunal did not take into account an irrelevant consideration when it took into account that the applicant returned to India or that the applicant did not claim refugee status in a third country. 9 The applicant's second submission was that the Minister failed to accord the applicant procedural fairness or natural justice. The applicant had made what, in effect, was a sur place claimbefore the Tribunal based on his political activities in Australia which could have been taken by the Indian authorities (specifically through observation of a demonstration outside the Indian Embassy in Canberra) to indicate an association with the International Sikh Youth Federation (ISYF). The applicant contended the Tribunal did not ask him questions concerning his participation in the ISYF. After setting out the questions the applicant claimed the Tribunal was required to ask of the applicant, his Honour found that the Tribunal had not failed to accord the applicant natural justice. His Honour found the Tribunal was entitled to reject the sur place claim on the basis of the material provided by the applicant.

The appeal to the Full Court 10 The applicant appealed against the decision of Hill J to the Full Court. The applicant claimed the Tribunal had committed two jurisdictional errors. First, in arriving at its decision, the Tribunal should not have taken into account that the applicant had the opportunity to settle and start a new life in other countries. Secondly, the Tribunal did not afford the applicant procedural fairness in respect of his sur place claim based on his participation in a demonstration by ISYF and should have made further inquiries into that claim. The Full Court concluded Hill J did not err in dealing with those issues.

The present application before the Court 11 The applicants' grounds for review, as set out in the draft order nisi filed in the High Court on 8 July 2003, were: (a) a breach of the rules of natural justice occurred in connection with making of the decision. (b) the decision involved an error of law, whether or not the error appears on the record of that decision. (c) procedures that were required by law to be observed in connection with the making of the decision were not observed. (d) the making of decision was improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. (e) My family and I have the fear of being persecuted upon return by a particular social group namely ("Shiv Sena") (f) The above fear has cause my spouse psychological effect, depression and anxiety and such are unwilling to return. (g) Fear of my wife and two daughters being terrorised by the "Shiv Sena" group and fall victims of violence such as rape. 12 By notice of motion filed on 25 August 2004, the Minister sought an order that these proceedings be dismissed on the grounds that: (a) Res judicata applies and is a complete bar to the application. (b) Issue estoppel applies and is a complete bar to the application. (c) Anshun estoppel applies and there are no special circumstances to justify its non application. (d) Pursuant to Order 20 Rule 2(1)(c) of the Federal Court Rules, the proceeding is an abuse of process in the Court. A notice of objection to competency was filed on 1 September 2004 and subsequently amended on 22 September 2004 and stated that the Court had no jurisdiction to review the decision on the ground that the application was not made within 35 days of being notified of the Tribunal's decision: see s 486A(1) of the Migration Act 1958 (Cth). 13 The applicants oppose the notice of motion on the grounds that: 1. The applicants claim that they were denied procedural fairness when whole case was misunderstood because of the misinterpretation of the applicant's oral evidence. 2. The Tribunal failed to provide a competent interpreter (Punjabi Language) to the applicants. 3. In the transcript of the Tribunal at page 2, 3, 4, 10, 11, 12, 23, 24, 25 and 27 the applicant expressed his difficulties to understand the proceedings through Punjabi Interpreter. 4. The Tribunal failed to provide opportunity to take oral evidence of the applicant's wife who was witness of the harm suffered by applicant. 5. Her medical conditions … were not considered to adjourn the hearing for some time. She wished to attend the hearing but due to the mental depression and sickness she could not attend the hearing on the scheduled day. 6. The applicants acknowledge that they went through Courts proceedings to get the natural justice. However, all of the Courts failed to recognise the Tribunal's jurisdictional errors. 7. The Tribunal failed to make any reference to any current information dealing with this issue and failed to investigate the Applicant's claims fairly and properly and therefore fell into error. 8. The applicants claim that a special circumstances arise when his case will be heard with a new evidence of denial of procedural fairness. 9. The applicants claim that they have a good grounds for their case. They oppose the notice of motion to dismiss the case. They believe that it would be denial of natural justice of they are denied to be heard on the above mentioned grounds of procedural fairness. 10. The applicants appeal to the Court to allow the case to be heard. 14 Having regard to these grounds and what the applicant said at the hearing, it appeared that the applicant wished to argue he was denied procedural fairness, first, because it would have been apparent to the Tribunal at the hearing that he could not communicate effectively and, secondly, because his wife did not give evidence because of her then (and continuing) medical condition. The applicant annexed to his submissions, filed before the hearing of the application, a copy of the transcript of the hearing before the Tribunal and also a letter concerning the emotional position of the applicant's wife. I am prepared, for present purposes, to accept that letter at face value. These submissions were repeated in written submissions filed after the hearing which included further medical reports and also some specific criticisms of the Tribunal's analysis of the facts. 15 I turn now to consider the contention of the Minister that the proceedings should be dismissed or permanently stayed because of the operation of the doctrine of res judicata, the principle of issue estoppel or by application of Anshun estoppel. In the present case, it is difficult to discern to what extent, relevantly, res judicata or issue estoppel arises. The grounds articulated in the original application and the present application are in the most general of terms. The grounds actually pursued before Hill J were narrower in compass. However, plainly all matters now sought to be raised could have been raised before Hill J even if they may have raised issues about the scope and operation of s 474. At that stage the applicant was legally represented. In my opinion this is a clear case, having regard to the history of litigation in this and other courts, where the principle of Anshun estoppel should be given full effect. The relevant principles and the need for finality of litigation were recently discussed by a Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36] and following: [36] The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. [37] A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602 [38] Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting 'special circumstances': see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581. [39] Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance. 16 While there is a discretion in relation to the application of the Anshun principles (as discussed by the Full Court in the passage quoted above) I do not consider special circumstances arise in the present case. The material provided by the applicant in relation to the points now sought to be raised (and specifically the claim that there was a communication problem at the hearing before the Tribunal and the applicant's wife wished to but did not give evidence) and the circumstances of the case more generally, do not suggest to me the existence of special circumstances militating against the operation of the estoppel. 17 In my opinion, the application for constitutional writs should be dismissed with costs. In this case, that can be achieved by dismissing the application for an order nisi. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 3 November 2004 The Applicants appeared in person.

Date of Hearing: 26 October 2004

Date of Judgment: 3 November 2004