Background
1 The applicants, who are Sri Lankan citizens of Tamil descent, arrived in Australia on 11 August 1996. They applied for protection visas on 23 September 1996 on the ground that they are entitled to refugee status under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The first applicant ("the applicant") claims that he has a well founded fear of persecution by reason of both his political opinion and his Tamil descent if he returns to Sri Lanka. The second applicant is married to the applicant and the third and fourth applicants are their children. It is common ground between the parties that the success or failure of the application by the applicants for refugee status depends upon the outcome of the claim for refugee status made by the applicant.
2 On 18 November 1996 a delegate of the Minister notified the applicants that he had refused their applications for protection visas. On 2 December 1996 the applicants sought a review of the delegate's decision by the Refugee Review Tribunal ("the RRT"). On 21 April 1997 the RRT concluded that it was not satisfied that the applicants are refugees and affirmed the decision of the delegate not to grant protection visas to them ("the decision of the RRT").
3 On 26 May 1997 the applicants applied to the Federal Court to review the decision of the RRT under Pt 8 of the Migration Act 1958 (Cth) ("the Act"). The grounds for the review were stated to be as follows:
"1. The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
2. The Tribunal did not have jurisdiction to make the decision.
3. The decision was not authorised by the Act or the Regulations.
4. The decision was an improper exercise of the power conferred by the Act or the Regulations.
5. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law.
6. The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal.
7. There was no evidence or other material to justify the making of the decision."
4 In August 1997 the applicant advised the Australian Government Solicitor that he no longer wished to proceed with the application for review and on 29 September 1997 orders were made by the Court, by consent, that the application be dismissed and that the applicants pay the Minister's costs in the sum of $1,300 ("the dismissal orders"). Although the applicants had legal representation at the time it appears that they had been refused legal aid, were without sufficient means to continue to fund their legal representation, and were therefore unable to continue with their application to the Court.
5 Instead of pursuing the application to the Court for review the applicants applied to the Minister under s 417(1) of the Act. Under that sub-section the Minister may, if he thinks it is in the public interest to do so, substitute for a decision of the RRT another decision, being a decision that is more favourable to the applicant, whether or not the RRT had the power to make that other decision. The applicants made their application under s 417(1) to the Minister by letter dated 28 July 1997 and provided written submissions in support of their application on 24 November 1997. The Minister declined to exercise his discretion under s 417 and communicated that decision to the applicants by letter dated 18 June 1998. A second request was made under s 417(1) by the applicants by letter dated 9 July 1998 but that also did not result in a more favourable decision being substituted. The failure of that application was communicated to the applicants by the Minister by letter dated 26 April 1999.
6 The applicant, who had always maintained that he feared political persecution if he returned to Sri Lanka, again sought to review the decision of the RRT. On or about 6 January 1999 the applicants commenced a proceeding in the High Court. Procedural orders in the matter were made on 11 October 1999. On 23 November 1999 Hayne J granted an Order Nisi, inter alia, calling upon the RRT to show cause why writs of mandamus, prohibition or certiorari should not be issued out of the High Court pursuant to s 75(v) of the Constitution in respect of the decision of the RRT. Hayne J remitted to the Federal Court that part of the matter pending in the High Court which related to whether:
"(a) the Refugee Review Tribunal ('the Tribunal') failed to observe the procedures that were required by the Migration Act 1958 (Cth) ('the Act') or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;
(b) the Tribunal did not have jurisdiction to make the decision it did;
(c) the Tribunal's decision was not authorised by the Act or the regulations under the Act;
(d) The Tribunal's decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."
7 When the matter was remitted to the Court on 23 November 1999 senior counsel appearing for the Minister reserved the Minister's right to argue, as a matter of discretion, that relief should not be granted by reason of the applicants' delay. The delay relied upon was the delay between the decision of the RRT, which was made on 21 April 1997, and the application to review it in the High Court, which was not commenced until on or about 6 January 1999. If the applicants had applied to review the decision of the RRT at that time under Pt 8 of the Act, rather than under s 75(v) of the Constitution, they would have been barred from doing so as s 478(1)(b) of the Act requires that a proceeding under Pt 8 be commenced within 28 days of notification of the decision of the RRT.
8 Nonetheless, where relief is sought under s 75(v) of the Constitution, whether in the High Court or the Federal Court, the grant of the relief is discretionary: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 532 and the cases there cited. The discretion to refuse to grant relief on judicial review is often exercised when the basis for relief is otherwise established: see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 ("Singh") at [37] and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 639 at 647. Recently, in Candyah v Minister for Immigration and Multicultural Affairs [2000] FCA 869 ("Candyah") at [9]-[14] Heerey J expressed the view that delay, in circumstances similar to those occurring in the present case, was a "strong" additional factor why the application before him should fail.
9 The chronology of events set out above raises two issues. The first is whether the dismissal of the applicants' proceeding under Pt 8 of the Act pursuant to the dismissal orders has disentitled the applicants to the relief they now seek by reason of res judicata or issue estoppel. The second is whether the delay in commencing the present proceeding should, as a matter of discretion, result in the refusal of relief. As these issues only arise if the applicant is otherwise entitled to relief it is appropriate to turn to that issue.
Error of law
10 Although the applicant sought to challenge the decision of the RRT on a variety of grounds, ultimately the only ground pressed was that the RRT erred in law in its application of the "What if I am wrong?" test. That issue arose in the context of the applicant's claim for refugee status as a consequence of his arrest and detention in Colombo by the Sri Lankan police in January 1996 after the bombing of the Central Bank, which resulted in the death of at least 86 people and the injury of some 1,200 people.
11 The applicant's account of events in respect of that issue was described by the RRT as follows:
"The night after the January 1996 Central Bank bombing, an old school friend, whom [the applicant] knew to be an LTTE member and on a government 'wanted list', came to his door at 12:30 am seeking sanctuary. His friend told him that he had been tipped off that the police were going to raid his house and he just wanted to stay the night. Though the applicant was initially reluctant, because his friend was very persistent and had helped him a lot when they were at school together, the applicant allowed him to come in and stay until daybreak.
At 2:30 am that morning, the police and security forces raided the applicant's home. He told the police there was no one there except his family; however, the police found his friend hiding behind the wardrobe and they were both arrested and taken away. The applicant was repeatedly interrogated and accused of being a 'Tiger' and helping the LTTE and he was again subject to physical mistreatment.
After a week of detention, the applicant's wife and mother were able to secure his release on a reporting basis through the payment of a bribe. The condition of his release was that he should not leave Colombo or change address without permission and that he should report to the police station every Monday. He does not know to this day what happened to his friend.
The applicant reported weekly as required, usually before going to work but sometimes at night, but became fearful of the anger and attitude of the police who frequently interrogated him and taunted and slapped him on these occasions. He therefore made a decision to leave fearing he would be killed by the police or security forces.
He applied for and was issued with a Sri Lankan passport on 2 July 1996. He encountered no difficulties. However, he and his family did not depart Sri Lanka until more than four weeks later because his eight month old son was sick with fever and diarrhoea.
After coming to Australia, he heard from a Sinhalese friend that the police were looking for him."
12 The RRT appeared to assume that the applicant had a subjective fear of persecution by reason of an imputed political opinion should he return to Sri Lanka and confined its decision to whether, objectively, that fear was well-founded in the sense that there was a "real chance" of political persecution of the applicant if he returned to Sri Lanka. The RRT made the following findings on that issue.
1. It had "difficulty in believing" that the applicant was arrested for the crime of harbouring an LTTE member on a "wanted list" the day after the Central Bank bombing but was not charged and allowed to go free, albeit on a reporting regimen.
2. As the applicant had lied to the police about the Tamil friend found hiding in his house it was difficult to believe that the police would not have charged the applicant if his account of events is correct.
3. The fact that the applicant was able to apply for and be issued with a Sri Lankan passport after the bombing incident and was also able to freely leave Sri Lanka supports the conclusion that the applicant was not of interest to the Sri Lankan authorities.
4. As the applicant was not of interest to the Sri Lankan authorities when he departed, the RRT did not accept he was placed on a wanted list after he left Sri Lanka.
13 The findings were open to the RRT on the material before it and, if they were made with the requisite degree of confidence, they would constitute proper grounds for the RRT to reject the applicant's claim for refugee status in so far as it related to the events occurring immediately after the Central Bank bombing: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ("Guo") at 575-576. However, the Tribunal did not appear to arrive at its findings with the requisite degree of confidence as, immediately after the above findings were stated, the RRT said;
"However, even if, despite my reservations, I were to accept the applicant's account of events, I would conclude that he was arrested and detained for harbouring someone suspected of involvement in a major crime, the bombing of the Central Bank. That is, on the applicant's own evidence he was not arrested because of his political opinion or because he is a Tamil. If I were then to accept that he was released without charge but had to report weekly, I would conclude that any difficulty the applicant might face on return would be for not abiding with his reporting conditions in relation to a criminal matter. In other words, any difficulty he would face would not be Convention-related."
14 In stating that it had "reservations" as to the applicant's account of the post Central Bank bombing events it is implicit that the RRT was not rejecting that account, or making its findings against the applicant, with the requisite degree of confidence. It was therefore proper for the RRT to consider the outcome of the application before it on the basis of accepting "the applicant's account of events": see Guo at 575-576.
15 Several difficulties arise as to the manner in which the RRT then proceeded. Although the premise upon which it was proposing to proceed was the applicant's account of events, it did not form part of the applicant's account that he was "detained for harbouring someone suspected of involvement in a major crime, the bombing of the Central Bank". Rather, the applicant's account, as stated by the RRT in its reasons and as appears in the material, was that prior to the bombing he knew that the old school friend who he harboured in his home was an LTTE member and on a government "wanted list". Further, it was not the applicant's "own" evidence that he was not arrested and mistreated by the police because of his "political opinion". In the RRT's summary of the applicant's evidence it stated that the applicant said he was subjected to physical mistreatment as he was interrogated and accused of being a "tiger" and helping the LTTE.
16 The police mistreatment, of which the applicant complained, did not appear to be related to the Central Bank bombing. The applicant said he was questioned about whether he had any involvement with the LTTE and whether he knew of anyone else who was also in the LTTE. When the RRT asked whether the applicant was questioned about the Central Bank bombing he said that, although there was some reference to the Central Bank bombing, the questioning related "to the person I was harbouring at home".
17 The issue in the present matter under s 75(v), however, is not whether the RRT erred in fact; rather it is, as I shall shortly explain, whether it erred in law in its application of the "real chance" test and if so, whether the error was reviewable as jurisdictional error.
18 The RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence: see Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19] and Singh at [52]. The merits related to whether there is a "real chance" that persecution for a Convention reason will occur. The degree of probability that similar events have, or have not, occurred for particular reasons in the past is relevant to determining the chance that such events will occur in the future. As was said in the joint judgment in Guo at 576:
"If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining that there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong."
19 In Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220 ("Rajalingam") at 240 Sackville J (with whom North J agreed) said of the "What if I am wrong?" test:
"In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a 'real substantial basis' for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
Although the 'What if I am wrong?' terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a 'well-founded fear of being persecuted' for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute 'an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found'."
20 Sackville J concluded at 241:
"Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution."
21 The present case is one where a fair reading of the reasons allows the conclusion that the RRT had a real doubt as to whether its adverse findings on material questions of fact were correct. Accordingly, if the RRT did not undertake the required speculation about the chances of future persecution of the applicant for a Convention reason it will have erred in law.
22 The applicant's account of events, which were accepted by the RRT for the purpose of the required speculation, was:
· he was mistreated by the authorities by reason of an imputed political opinion being that he was either an LTTE member or was helping the LTTE;
· as a result of the imputed political opinion he was required to report weekly to the police after being released.
23 The applicant claimed that, as he ceased reporting after he fled to Australia, he was placed on the wanted list and faces arrest and further mistreatment upon his return to Sri Lanka.
24 The RRT was required to form its own view as to whether, on the applicant's account of events, there was a real chance of the political persecution feared by the applicant. While it was open to the RRT, as part of the speculative process, to form a view as to the significance of the alleged events and as to the possibility, or otherwise, that the alleged events occurred, it was not open to it to merely revert to its earlier adverse findings against the applicant in respect of those events as the basis for its conclusion. If the Tribunal did so it would transform the "What if I am wrong?" test to a "What if I am right?" test. Yet that appears to be what the RRT has done. Put in terms of the analysis of this issue in Rajalingam, the RRT has purported to consider the possibilities about the chances of future persecution as part of the required speculation but has, in fact, failed to do so.
25 The conclusion of the RRT that the applicant was arrested and detained for harbouring someone suspected of involvement in a major crime accords with its earlier adverse findings but is inconsistent with the hypothesis upon which the RRT was proceeding in the critical paragraph, that is, on the basis of the possibility of those findings being wrong. It is not an answer to a "What if I am wrong?" enquiry for the RRT to say that "It is not wrong".
26 The RRT also stated that the reason why the applicant was arrested was unrelated to any political opinion imputed to him. That may be an accurate statement in the sense that the applicant's arrest was because of a desire on the part of the police to investigate the circumstances in which his friend was being hidden by him in his house. However, it was not the arrest that was being claimed to constitute past persecutory conduct; rather, it was the subsequent detention, mistreatment, threats, imposition of reporting conditions and being placed on a wanted list as a result of their breach that were being complained of by the applicant. In so far as the RRT approached the issue by having regard only to the circumstances of the arrest and not to the later events which formed the basis for the applicants' claim, it plainly erred in law. This is because it was determining the "real chance" test on the basis of only part of the applicant's account of events after it had stated it was accepting the whole of his account for the purpose of engaging in the speculation.
27 Further, the RRT's conclusion that the applicant might face difficulty on his return for not abiding with his reporting conditions but that that was "in relation to a criminal matter", also demonstrates a further error which appears to underlie the RRT's observations throughout the relevant paragraph. That error is the failure of the RRT to accept that a person may be arrested and detained by reason of a perceived criminal association and by reason of a perceived political opinion: see Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 at [29]-[30] and the cases there referred to. Oddly, the applicant's account of events did not appear to include a claim of persecution by reason of any perceived involvement in the Central Bank bombing on the part of either his friend or himself. Thus, the conclusion that breach of the reporting conditions was "in relation to a criminal matter" is not easy to follow. It appears to follow from the earlier rejection, rather than an acceptance of, the applicant's account of events. The conclusion also failed to recognise that the harm that was said to flow from the breach of the reporting conditions was inextricably linked to the reason for the imposition of the conditions which, on the applicant's account, was by reason of the imputed political opinion.
28 The above matters demonstrate error of law on the part of the RRT in failing to undertake the required speculation about future persecution. The failure of the RRT to apply itself to, and address, the correct legal question which the law prescribes is a constructive failure by it to exercise its jurisdiction. In these circumstances I am satisfied that the errors of the RRT to which I have referred constitute jurisdictional error for the purposes of s 75(v) of the Constitution: see Craig v South Australia (1995) 184 CLR 163 at 177-178, Abebe v Commonwealth (1999) 197 CLR 511 ("Abebe") at 552, Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64 and 69-70 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292-293.
29 It follows from the foregoing that the RRT erred in law in its understanding and application of the "real chance" test and the requirements imposed upon it by law to determine whether the applicant had a well founded fear of persecution by reason of an imputed political opinion. While there was material before the RRT which entitled it to find in favour of, or against the applicant on that issue, the RRT fell into jurisdictional error in arriving at its decision against the applicant without properly engaging in the "What if I am wrong?" analysis. Accordingly, subject to the issue of whether the applicants have become disentitled to the relief they seek, the RRT decision should be set aside.
Delay
30 The right to certiorari or prohibition may be lost by acquiescence or implied waiver. Judicial review and prerogative relief may be refused on the ground of undue delay if the court is of the opinion that to grant the order would cause substantial hardship or prejudice third parties or be detrimental to good administration. Whether delay is considered undue will depend on the facts of each particular case. The court is entitled to have regard generally to the conduct of the applicant and to the special circumstances of the case in deciding whether to grant the remedy sought. See generally De Smith, Judicial Review of Administrative Action (5th ed, 1995) 805-820; Ex parte Malouf: Re Gee (1943) 43 SR (NSW) 195 at 201-202; R v Williams; Ex parte Lewis [1992] 1 Qd R 643 at 658; Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 577-581.
31 Although there is unlikely to be any prejudice, as that term is usually understood. However, there is prejudice caused by inaction in seeking judicial review in migration cases. As was observed by Heerey J in Candyah at [14]:
"…there is prejudice in the sense of evasion of the clear legislative will that judicial review of Tribunal decisions is to be prompt: s 478(2)."
32 I would add that a similar requirement of "promptness" lies behind the imposition of general time limits on judicial review, whether statutory or under Rules of Court: see Aronson and Dyer at 581. Although the applicant's delay in the present case is inordinate it is nonetheless necessary to consider if there are special circumstances which mean that relief should not be refused on the ground of delay alone. The circumstances in the present case that are relevant to that consideration are:
· the discontinuance of the original proceeding was not entirely voluntary in so far as it came about as a result of the refusal of legal aid and flowed from impecuniosity;
· the applicant, in pursuing his alternative recourse to the Minister under s 417 of the Act, continued to maintain his claim that he was a political refugee;
· the RRT, in making its decision on the applicant's claim for refugee status, was acting as the repository the obligations of the executive aim of government in giving effect to Australia's obligations under the Convention; the failure by the RRT to exercise its functions in accordance with those obligations as discussed above is a matter of some significance;
· a decision to refuse a refugee visa, unlike many other judicially reviewable decisions of government agencies or authorities, does not affect the rights of third parties;
· the decision in the present case is concerned with the fundamental human rights of an individual (see Lord Bridge in R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514 at 531) and judicial review of such a decision should not be lightly refused absent a substantial basis for doing so;
· no prejudice, other than that flowing generally from any delay in seeking judicial review, has been suffered.
33 The above factors, cumulatively, have led me to conclude that delay, alone, in the present case is not a sufficient cause to disentitle the applicants to the relief to which they may otherwise be entitled.
The dismissal orders
34 The remaining issue is whether the dismissal orders dismissing the applicants proceeding under Pt 8 of the Act have disentitled the applicants to the relief they now seek by reason of res judicata or issue estoppel.
35 It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata (3rd ed, 1996) at [38]-[40].
36 In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 ("Chamberlain") at 508, Deane, Toohey and Gaudron JJ stated:
"The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date… [b]ut the principle of res judicata holds good in such a case."
37 The position is the same with issue estoppel. The fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it, but the issue estoppel operates only as to those matters which were necessarily decided by it.
38 In Re South American and Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 at 45, Vaughan Williams J stated:
"It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter… if [the parties] agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end."
39 In Isaacs v Ocean Accident and Guarantee Corporation Ltd [1957] 58 SR (NSW) 69 at 75 [footnotes omitted], Street CJ and Roper CJ in Eq stated:
"It is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it: Re South American and Mexican Co.; Ex parte Bank of England. But a judgment operates by way of estoppel only as to those matters which are necessarily decided by it. (Cf. Blair v Curran; Jackson v Goldsmith.) 'Though consent judgments and orders are undoubtedly in every case decisions in the sense that the actual mandatory or prohibitive parts of the judgment or order are conclusively binding upon… the parties… it may often be a matter of legitimate doubt and debate as to what, if any, particular questions or issues of right, title, or liability were, expressly or impliedly, the subject of the consent, and of the decision. For this purpose, as for all other purposes connected with the ascertainment of the subject-matter of a decision, the Court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to' (Spencer Bower on Res Judicata, p.24, par 34). Again, at p.114, para 174, the learned author says: 'In the case of judgments and orders by consent… it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent... judgment or order was made'."
40 In Makhoul v Barnes (1995) 60 FCR 572 at 582 the Full Federal Court (Hill, Cooper & Branson JJ) accepted the proposition that issue estoppel arises where an application is dismissed by consent:
"…it seems now to be clear that a judgment entered by consent is as much a judgment as one obtained after a full argument and as such capable of founding an estoppel: see G Spencer-Bower and A K Turner, Res Judicata (2nd ed, 1969), p.37 and cases cited at note 5. Thus, provided it is clear what the issues involved in the consent order may be, those issues will be taken as having been conclusively determined so as to prevent there being raised in subsequent proceedings: cf Thompson v Moore (1889) 23 LR Ir 599."
41 The Minister relied on the doctrine of res judicata as a ground for the Court to dismiss the present proceedings. If res judicata is found not to apply, the Minister relied on issue estoppel as an alternative to dismiss the proceedings. The Minister also submitted that if the Court found that res judicata and issue estoppel had no application, the Court should dismiss the matter on the basis of Anshun estoppel.
42 The distinction between res judicata and issue estoppel was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ("Anshun") at 597 where Gibbs CJ, Mason and Aickin JJ stated:
"The distinction between res judicata (in England called 'cause of action estoppel') and issue estoppel was expressed by Dixon J. in Blair v. Curran (1939) 62 CLR 464, at p 532 in these terms: 'in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order'."
43 The doctrines of res judicata and issue estoppel have been held to apply to applications for judicial review: see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356 per Fisher J and at 365 per Ryan J.
44 If res judicata applies to the present proceeding, there is no discretion in the Court to allow the proceeding to continue. By operation of law the applicants are not able to maintain the proceeding as the plea, if made out, is a complete bar to the claim as the cause of action is extinguished by the first judgment: see Anshun at 612-613; Chamberlain at 511; Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 at 512.
45 In determining whether res judicata applies, the primary question is whether the cause of action in the later proceeding is the same as that which was litigated in the former proceeding.
46 The applicants contended that res judicata does not apply in this case as there is no commonality of cause of action. It was said that the applicants had a choice between the fundamentally different rights of seeking review under Pt 8 of the Act or seeking prerogative relief in the original jurisdiction of the High Court under s 75(v) of the Constitution. It is contended that the right to prerogative relief under s 75(v) of the Constitution is not to be equated with a statutory right of review. Thus, so it is said, the cause of action in each case is different.
47 The Minister submitted that res judicata operates in this case because, as a matter of substance, the cause of action is the same in both proceedings. He contended that the dismissal orders finally determined whether any of the grounds of review set out in the Application under Pt 8 of the Act in relation to the decision of the RRT were made out. Accordingly, the plea barred the same grounds being raised between the same parties in the s 75(v) proceeding.
48 Although the question is whether the two proceedings relate to the same cause of action, as Brennan J noted in Anshun at 610-611 "cause of action" is an imprecise term leading to difficulties in determining whether res judicata applies:
"There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment (see per Williams J. in Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557, at pp 600, 601); sometimes to mean a right which has been infringed (see Serrao v. Noel (1885) LR 15 QBD 549 ), and sometimes to mean the substance of an action as distinct from its form (see Krishna Behari Roy v. Brojeswari Chowdranee (1875) LR 2 Ind App 283 ). Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J. said in Blair v. Curran (1939) 62 CLR 464, at p 532 : 'the very right or cause of action claimed or put in suit has . . . passed into judgment, so that it is merged and has no longer an independent existence…'."
49 While some cases define "cause of action" to mean the fact or combination of facts which gives rise to right to sue (Carter v Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557 at 600; Do Carmo v Ford Excavations Proprietary Limited (1984) 154 CLR 234 at 245; Golski v Kirk (1987) 14 FCR 143 at 145) other cases strongly support the view that "cause of action" in this area of the law means the right, rather than the facts which support the right (Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 672-673; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 ("Macquarie") at 559).
50 In Macquarie (at 559) Clarke JA noted that what is necessary:
"…is an examination of the factual circumstances relied upon to establish the right to relief in each case in order to determine whether there is a sufficient identity between them to found the conclusion that the same cause of action was in question in both cases."
51 In Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510), Gummow J concluded that a court should focus on the substance of the two proceedings rather than their form (at 418):
"It is said that for the estoppel to operate, the cause of action in each proceeding must be the same: Ramsay v Pigram (at 280). But, as Brennan J pointed out in Anshun (at 610-613) the phrase 'cause of action' is used imprecisely and in several senses. These include:
(i) the series facts which the plaintiff must allege and prove to substantiate a right to judgment;
(ii) the legal right which has been infringed; and
(iii) the substance of the action as distinct from its form.
Sir William Brett MR directed attention to this third sense by asking 'whether the same sort of evidence would prove the plaintiff's case in the two actions': Brunsden v Humphrey (1884) 14 QBD 141 at 146. In that litigation the first action had been brought in a county court and the second in the High Court. In Chamberlain v Deputy Commissioner of Taxation, (1988) 164 CLR 502 at 508, Deane, Gaudron, Toohey JJ drew attention to what Brennan J had said as to the imprecision of the phrase 'cause of action', but did not espouse any particular formulation.
However, as indicated above, for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form. This reflects the constitutional basis of federal jurisdiction, to which I have referred earlier in these reasons. Also, it allows for the very many controversies which now come before superior courts, federal and State, without pleadings. And even where pleadings are necessary or are ordered, the effect of the judicature system of pleading, now in general operation in Australia, is as described by Barwick CJ:
'[T]here is no necessity to assert or identify a legal category of action…It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts.'
See Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473. Further, characterisation by regard to substance rather than form assists in cases where the first action was brought in a foreign forum, for the doctrine applies in such circumstances…."
52 It is clear from the above authorities that the identity of the causes of action in question is to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded.
53 Many of the difficulties that often arise in identifying the cause of action determined by a consent order do not arise in the present case. Each of the seven unparticularised grounds in the Application under Pt 8 were couched in very wide terms. Each of the grounds, if made out, would, in the usual course, entitle the applicant to seek relief under s 481(1) of the Act. The width of the relief that may be granted under that sub-section includes setting aside the RRT decision, referring the matter back for the consideration, declaring the rights of the parties in respect of any matter to which the decision relates and directing any of the parties to do, or refrain from doing, any act where the Court considers that "necessary to do justice between the parties". On any view the relief that may be granted is wider than the prerogative relief available in any proceeding under s 75(v) of the Constitution.
54 The dismissal orders must therefore be seen as finally disposing of the subject of the litigation, namely each of the seven grounds of review outlined in the application. That conclusion must follow from the fact that, as each ground can give rise to a right of judicial review, the dismissal necessarily decided that none of them gives rise to a right of judicial review of the decision or to any of the remedies available under s 481(1) of the Act. As the grounds open to be relied upon before the Court, and the relief available, on the remitter in the s 75(v) proceeding were no wider or greater than the grounds or relief available in the proceeding the subject of the dismissal orders, the applicants' rights in respect of those grounds merged in the judgment arising from the dismissal orders.
55 In any event, as explained above, the applicants pressed and are only entitled to succeed on the single ground that the RRT constructively failed to exercise its jurisdiction by failing to determine the question of whether the applicants faced a real chance of persecution by reason of imputed political opinion. That jurisdictional ground is plainly a ground of review that was the subject of the dismissal orders. The remaining question is whether that cause of action arising under s 75(v) is different to that arising under Pt 8 of the Act.
56 Gleeson CJ and McHugh J at 522 noted in Abebe that, in some respects, the grounds for review under s 75(v) are narrower than review under Pt 8 of the Act:
"The combined effect of ss 476 and 485 of the Act, therefore, is that the jurisdiction of the Federal Court to review decisions under the Act is narrower in some respects than the jurisdiction conferred on this Court by s 75(v) of the Constitution, is narrower in some respects than the scope for review of administrative decisions at common law and is narrower than the scope for review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act. In other respects, however, the jurisdiction is arguably wider than the jurisdiction of this Court under s 75(v) and the jurisdiction at common law (cf sections 476(1)(a), (e) and (g))"
57 See also Gaudron J at 568-569. While in some instances their Honours' observations may result in different causes of action in a proceeding under s 75(v) and under Pt 8 (for example, apprehended bias and Wednesday unreasonableness) that issue does not arise in the present case. In the present context, the grounds of review relied upon under section 476 of the Act in the earlier proceeding are wider than the grounds relied upon for prerogative relief under s 75(v) in the remitted proceeding. For example, in the current proceeding under s 75(v) it is not enough for the applicant to show error as described in section 476(1)(e) of the Act; rather the applicant is required to demonstrate jurisdictional error. As was said by Gaudron J in Abebe at 551, in general terms, relief under s 75(v) "…is available only to correct jurisdiction errors, as distinct from errors within jurisdiction" [footnote omitted].
58 In my view, it is no answer to the plea of res judicata that, as the applicants seek prerogative relief under s 75(v), there is no commonality of cause of action between the former and current proceedings. The Court's jurisdiction in the present case, founded on the order of Hayne J of 23 November 1999, s 75(v) of the Construction and s 44(2A) of the Judiciary Act 1903 (Cth), arises from a different source than the jurisdiction conferred under Pt 8 of the Act.
59 It is clear, however, that s 75(v) of the Constitution is not a cause of action in itself. Section 75(v) is a source of federal jurisdiction rather than of substantive rights(Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 ("Richard Walter") at 178 per Mason CJ, 204-207 per Deane and Gaudron JJ, 232 per Toohey J; see also Werrin v The Commonwealth (1938) 59 CLR 150 ("Werrin") at 167-68; Maguire v Simpson (1977) 139 CLR 362 at 404 cf The Commonwealth v New South Wales (1923) 32 CLR 200).
60 In Richard Walter Mason CJ noted at 178:
"Section 75(v) is a grant of jurisdiction to the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The provision is not a source of substantive rights except in so far as the grant of jurisdiction necessarily recognises the principles of general law according to which the jurisdiction to grant the remedies mentioned is exercised." [Footnotes omitted]
61 Similarly Deane and Gauldron JJ stated [at 204-205]:
"Implicit in each of s 75(v) and s 75(iii) is a conferral of a right to invoke the jurisdiction of the Court upon any person with an interest which is sufficient to provide standing to seek judicial relief in a matter of a kind specified in the relevant sub-section... the right to invoke the jurisdiction is essentially an auxiliary or facultative one in the sense that the jurisdiction which the sub-section confers upon the Court is to hear and determine the designated matters in accordance with the independently existing substantive law. In other words, the right to invoke the jurisdiction will be unavailing unless the decision or conduct of the officer of the Commonwealth in respect of which the designated relief is sought is invalid or unlawful under that substantive law."
62 See also Werrin, where (at 167-168) Dixon J (as he then was) rejected the proposition that s 75 is a source of substantive liability.
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.
66 As Brennan J noted in Anshun (at 612):
"The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.
Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts."
67 Although I am of the view that res judicata applies in the present case the applicant relied on certain observations in Abebe of Gaudron J at 550-551 and of Kirby J at 590-591 to the effect that s 75(v) and Pt 8 can give rise to different legal rights in the same factual circumstances. However, their Honours observations were in a different context and did not appear to be intended to suggest that, as a consequence, as a matter of substantive law different "causes of action" arise under s 75(v) and Pt 8. Further, even if res judicata does not arise by reason of the different legal sources for the rights being asserted by the applicants in their two proceedings, I am in no doubt that issue estoppel would still preclude the applicants from obtaining the relief sought.
68 An issue estoppel arises where:
"…for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." (Blair v Curran (1939) 62 CLR 464 ("Blair") at 532)
69 In other words, a party is precluded from contending the contrary of any precise point which has once been distinctly put in issue and has been finally determined between the parties. Unlike res judicata, issue estoppel may arise when the cause of action in each proceedings is entirely different (see Blair at 532; Jackson v Goldsmith (1950) 81 CLR 446 at 460-461).
70 The doctrine of issue estoppel will only apply when the issue ruled upon by a court in the earlier proceedings was fundamental to the ultimate decision in the case (Blair at 531-532). When resort is had to the available evidence to ascertain the matters in dispute (in this case being the Application filed by the applicant) it becomes clear that the dismissal orders must be seen as finally disposing of the subject of the litigation, namely the seven broad unparticularised grounds of review outlined in the Application. Those grounds of review encompass all the grounds remitted to the Court by Hayne J. Thus, the dismissal orders conclusively determined that the RRT had jurisdiction to make the decision and made no error of law in its decision. Accordingly, the applicants' current application for review, based on those same grounds is barred by issue estoppel. In these circumstances it is unnecessary to consider the application of Anshun estoppel.
Conclusion
71 For the above reasons I have concluded that the consent dismissal of the applicants' original proceeding under Pt 8 to review the decision of the RRT disentitled the applicants to claim relief by way of judicial review and prerogative relief on the same grounds, under s 75(v) of the Constitution. Accordingly, the application is to be dismissed. In the special circumstances of the present case it is appropriate to make no order as to costs. Those circumstances include:
· the applicant succeeded on the two main issues originally argued by the Minister, being the merits of the application under s 75(v) and delay;
· the issues on which the Minister has ultimately succeeded were first raised by the Court in the course of the hearing.
72 Finally, I raised with counsel for the Minister whether, in the event there was jurisdictional error but a refusal of relief, there was any reason why it would not be in the public interest for the applicants to be permitted by the Minister under s 48B of the Act, to make a further application for refugee status. While I accept that that is a matter for the Minister it is appropriate to observe that it would be most unfortunate if an invalid decision, which denied the applicants refugee status under the Convention, were to stand as the ultimate and final decision made on behalf of the executive branch of government in respect of the refugee status of the applicants.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.