S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 | Case summary

The present application before the Court 15 The grounds for relief in the present application remitted by the High Court are set out in par 4 of the draft order nisi: (a) [the Tribunal] failed to attain or to exercise, or constructively failed to attain or to exercise, its jurisdiction, in respect of the decision made by WM Berkley, Member of [the Tribunal] on 20 December 2000. Particulars There was no logical ground or probative material to support [the Tribunal]'s findings that the Applicant could safely relocate to another part of Pakistan for the reasons that: "The Tribunal does not accept that the applicant's conversion and reconversion would be known to anyone outside of the small community in which he lived from late 1998 to late 1999. The Tribunal also does not accept that the fatwa would be known to anyone other than the local Mullah. The applicant is a Christian, has a readily identifiable Christian name and speaks excellent English. The Tribunal does not accept that there is anything about him which would identify him as a convert from Islam to Christianity. He will blend in easily to any Christian community." … and "The applicant claims that his brothers-in-law may reveal the fact of this conversion and reconversion to any community in which he is living. However, the Tribunal does not accept that this would cause the applicant any problems because he is so obviously a Christian. The Tribunal is not satisfied that anyone would take claims made by the applicant's brother-in-law about him being an apostate seriously." 16 The first issue raised in these proceedings is whether, as counsel for the Minister submitted, they constitute an abuse of process. It is not in issue that the ground sought to be raised in this application, is the same ground raised in the proceedings heard by Sackville J and to which the judgment of the Full Court related. It is also not in issue that the ground was not fully considered by either Sackville J or the Full Court. Further, it appears not to be in issue that the two judges of the High Court who dismissed the application for special leave considered the argument advanced on behalf of the applicant for a limited purpose. As counsel for the applicant pointed out, the evaluation of an argument for the purposes of a special leave application might not be the same as the evaluation undertaken by a judge hearing the matter at first instance. The power to grant special leave is a wide discretionary one influenced by the need to limit the number of cases heard by the final appellate court in this country: see s 35A of the Judiciary Act 1903 (Cth) and the observations of Dawson J in Morris v the Queen (1987) 163 CLR 454 at 475. 17 Counsel for the Minister submitted the further pursuit of the ground in these proceedings constitutes an abuse of process and referred to the following passage in the joint judgment of Mason CJ and Deane and Dawson JJ in Walton v Gardner (1993) 177 CLR 378 at 393: …proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. However, also relevant are the cautionary observations of Ryan and Gyles JJ in Miller v University of New South Wales (2003) 200 ALR 565, a recent Full Court judgment dealing with, amongst other things, abuse of process. Their Honours said at [81]: In our opinion, there is considerable difficulty in finding a proper basis for the concept of staying proceedings as an abuse of process upon the ground of relitigation in the case of proceedings between the same parties which goes beyond the effect of res judicata, issue estoppel and Anshun estoppel (incorporating the English Henderson v Henderson estoppel); see the illuminating discussion of the broad topic by the learned author of The Doctrine of Res Judicata, 3rd ed, Ch 26. Indeed, if the principle is so broad, it is difficult to understand why the various kinds of estoppel are maintained at all. In our view, near enough to an estoppel is not good enough to establish abuse of process between the same parties without some other element being present. There is the danger that persistent or unattractive litigants with awkward cases might be refused access to the courts if there is a broad and imprecise discretion to stay actions which are somewhat like a previous proceeding. 18 The Court of Appeal of New South Wales recently considered in what circumstances the re-litigation of an issue might constitute an abuse of process: see Rippon v Chilcotin (2001) 53 NSWLR 198. A purchaser, having failed in Supreme Court proceedings against a vendor, sought to maintain proceedings against accountants involved in the transaction. Handley JA said (with Mason P and Heydon JA agreeing): [24] Counsel for the appellant [the accountants] did not contend for an Anshun estoppel, but the fact that the present claim could, and perhaps should, have been included in the Supreme Court proceedings, emphasises the close connection between the two proceedings and is relevant in considering whether the present action is an abuse of process. … [28] The present proceedings are an attempt to litigate or re-litigate issues which were either decided in or are barred by the earlier proceedings.… … [30] The substance of the matter therefore is clear. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on substantially the same evidence in the hope that this time Mr Hoefl will be believed. [31] In Haines v Australian Broadcasting Corporation [(1995) 43 NSWLR 404], (at 414), Hunt CJ at CL distilled the following statement of principle from the authorities: "There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath ... The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former ... It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that ... the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance ... In normal circumstances the decision disposing of the issue must have been a final one ... There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice ... all the circumstances of the determination in the earlier case may be considered ...". [32] In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports ¶81-423, (64, 077) at 64, 089, another case involving abuse of process in seeking to re-litigate an issue, Giles CJ Comm D said: "…The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ... (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. " [33] These considerations, as Heydon JA pointed out in R v O'Halloran (2000) 159 FLR 260 at 293, "turn on precise identification of the issues". … [36] There is no question here of oppression and unfairness because the accountants were not parties to the earlier action, but these proceedings do threaten the integrity of the administration of justice and raise the prospect of conflicting judgments. [37] In my opinion therefore these proceedings are an abuse of process and this appeal should be allowed. 19 It is comparatively clear that if abuse of process can arise in a case such as the present, it will only arise if there had been a full litigation of the issue in the earlier proceedings. While it is true that the issue presently raised (concerning the allegedly illogical approach of the Tribunal), was raised in the earlier proceedings, it cannot be said, in my opinion, that it was fully litigated. It was not an issue that was considered by Sackville J and determined by his Honour, nor was it considered and determined by the Full Court. It is true that it was ventilated in the special leave application but that cannot be described, for present purposes, as the full litigation of the issue. The members of the High Court were considering whether the discretionary power to grant special leave should be exercised. They were not determining whether constitutional writs should issue because the point was a good one or be refused because it was not. These proceedings are not an abuse of process. I should emphasise that counsel for the Minister did not argue that the judgments in the earlier proceedings gave rise to either res judicata or created some form of estoppel. 20 However, I am nonetheless satisfied the proceedings should be dismissed. I reach that conclusion having heard and determined the matter finally and on the basis that the applicant had not made out a case for the issue of constitutional writs (and not merely on the more limited and interlocutory basis that a case had not been made out for the grant of an order nisi). I would dismiss the proceedings for the following reasons. 21 The gist of the applicant's case, as argued in these proceedings, was that the Tribunal accepted the applicant had grown up as a Christian, had converted to Islam in August 1998 in the hope the Islamic community would be able to help him get his wife and children back and then reconverted to Christianity. The Tribunal accepted that his conversion back to Christianity may have displeased some people in his local Muslim community and particularly displeased them because he converted to Islam for self-serving reasons and used the generosity of the Muslim community to his own advantage. The Tribunal also appeared to accept that a local Mullah issued a fatwa against the applicant though it appears to have found that the fatwa was written on a piece of paper and not distributed. However the Tribunal indicated it did not accept that the applicant's potential difficulties (flowing from these matters) would extend beyond that small community. 22 This conclusion was based on the following reasoning of the Tribunal (after it noted that Karachi is a bustling urban city of over 5 million people and Pakistan has a population of 135 million people): The Tribunal does not accept that the applicant's conversion and reconversion would be known to anyone outside of the small community in which he lived from late 1998 to late 1999. The Tribunal also does not accept that the fatwa would be known to anyone other than the local Mullah. The applicant is a Christian, has a readily identifiable Christian name and speaks excellent English. The Tribunal does not accept that there is anything about the applicant that would identify him as anything other than a Christian. There is nothing about him which would identify him as a convert from Islam to Christianity. He will blend in easily to any Christian community. The Tribunal notes that a number of newspaper articles appeared about the applicant and his family in the second half of 1998. The applicant claims to have received many letters of advice and encouragement from people all over Pakistan as a result of these articles. However, the articles appeared over two years ago now. The applicant has had no more notoriety since that time. The Tribunal finds that the applicant and his family and religious situation would only be known to the people who assisted him personally in the small Islamic community in which he lived in Karachi for one year. The Tribunal is not satisfied that the applicant would be known outside of that community in either greater Karachi or Pakistan. The Tribunal is satisfied that the applicant would be able to return to live in another part of Karachi or another place in Pakistan (such as Islamabad where his wife currently resides) in safety. The Tribunal notes that the applicant is a person who has been willing and able to relocate for purposes of employment (having moved to Indonesia to take up employment). He has been involved in occupations which he could pursue in most Pakistani cities (carpet selling, driving, security, kitchen hand). Christian communities exist throughout Pakistan but predominantly in Lahore, Faisalabad, Gujranwala, Sialkot, Islamabad/Rawalpindi as well as Karachi … Given these factors, the Tribunal finds that it would be reasonable to expect the applicant to relocate to Islamabad where he believes his wife is currently residing and thus avoid any risk of harm from the Moslem community with which he previously resided. However, the Tribunal is satisfied that the applicant could also reside with safety in an area of Karachi away from the Moslem community who helped him when he was searching for his family and for the year after his family was returned to him. The Tribunal notes that the applicant fears harm because of the fact that two of his brothers-in-law are police officers, one of whom holds a high level position. The applicant fears that he may face trumped up charges laid by these people or other trouble. The Tribunal does not accept, however, that any trouble caused by the applicant's brothers-in-law would be Convention related. … the Tribunal finds that these problems are caused solely by the personal problems between the applicants and his in-laws. The applicant claims that his brothers-in-law may reveal the fact of his conversion and reconversion to any community in which he is living. However, the Tribunal does not accept that this would cause the applicant any problems because he is so obviously Christian. The Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously. (Emphasis added) 23 Counsel for the applicant submitted that the Tribunal could only have concluded that the applicant (and his "religious situation") would not be known outside the small community in which he had lived if it concluded (in the sense that it made an assumption) that the applicant would live in a closed Christian community with no Muslim members or, alternatively, it concluded (again in the sense that it made an assumption) that if there were Muslims in the community they would never come to hear of the fatwa and would be beyond the contact of the applicant's hostile relatives and their influence. It was submitted that both conclusions or assumptions were illogical and not based on any probative material. 24 It may be accepted that Madgwick J observed at [16] of his reasons that the Tribunal's finding that the applicant could safely relocate and live in a Christian community was not (with all due respect to the Tribunal, as his Honour put it) a finding that would compel unanimous agreement. It may also be accepted that Sackville J observed at [67] of his reasons that the contention that the Tribunal's decision was affected by what his Honour had described as jurisdictional unreasonableness, had some force. 25 Nonetheless, the reasons of the Tribunal do not appear to me to be as fundamentally flawed as contended by counsel for the applicant. In determining whether an applicant has a well founded fear of persecution the Tribunal must look to the future. It engages in speculation and conjecture in the sense that the Tribunal must make an assessment of future chances of persecution: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277. One decision maker might make that assessment on certain assumptions (by reference to found facts concerning past events) and another decision maker might make the assessment on a different range of assumptions on the same found facts concerning past events. However the fact that a Court might be attracted to assumptions other than those made by the decision maker, does not provide a firm foundation for a conclusion that the decision was attended by jurisdictional error. 26 I accept that the Tribunal adopted a curious approach in saying that if the hostile relatives came to know of the applicant's whereabouts and revealed his conversion and reconversion, any allegations made by the relatives about the applicant's apostasy would not be believed because the applicant was "obviously Christian". However this conclusion is not fanciful. It was open to the Tribunal to conclude that the applicant was obviously Christian having regard to his name, appearance and long adherence to that religion. It is conceivable that Moslems in a community might view with some scepticism an accusation that someone who was obviously Christian had recently converted to and reconverted from Islam. Another decision maker might have viewed the applicant's Christianity as affording no real protection from such an accusation. But the fact that the Tribunal approached the matter in the way it did, does not provide a foundation for concluding the reasoning of the Tribunal was illogical. 27 While the Tribunal might have concluded, on the material before it, that there was a real risk that the applicant's history might become known to Muslims in any community he relocated to, it was certainly not bound to reach that conclusion. Nor does the fact that it did reach that conclusion indicate that its reasoning was tainted by a lack of logic which, on a view of the law most favourable to the applicant, revealed jurisdictional error. 28 In any event, and notwithstanding various observations of members of the High Court about illogical reasoning, I am bound to follow any considered judgment of a Full Court of this Court which itself has considered those observations and expressed a conclusion about them. Such a decision is NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 in which the Full Court said at [29]: In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a "warning note" of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by [the Tribunal]. In that matter the Full Court was satisfied there was "want of logic in one aspect of the reasoning of [the Tribunal]" but, for the above reasons, that want of logic did not itself suffice to constitute error of law, still less error of law which was jurisdictional. At best, the contention of the applicant in this matter would evidence want of logic of the type considered by the Full Court in that matter but, for the reasons their Honours gave, would not amount to jurisdictional error. 29 Arguably, it may be necessary for time to be extended for the applicant to make this application. I would be prepared to extend time but, for the preceding reasons, I would dismiss the application. The application should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

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