It is difficult to accept that in s 416, the expression "decision that the [RRT] ... made about or because of ... information" includes a reference to a finding of fact which was not of the essence of the ultimate decision made. Several considerations contribute to this difficulty. Firstly, the distinction which the Act recognises between a "decision" and "findings of fact", particularly in s 430, suggests, admittedly not conclusively, that in s 416 the word "decision" is used in the same sense as in s 430. It would have been a simple matter for the legislature to have referred to findings of fact in s 416, if it had intended the RRT to have the discretion to act on a finding of fact made on an earlier application for review, while not acting on the decision made on that application.
Secondly, the notion of "taking to be correct" invoked by s 416 is comfortably applicable to the notion of a "decision" on an application for review but not to a finding of fact. A finding of fact may depend upon other facts, on the impression created by a witness, and on other subtle factors. Generally, so far as the legal process is concerned, far from being thought of as being correct or incorrect, findings of fact are thought of as being invulnerable to attack, and as providing
the contours and boundaries of the factual substratum to which the law may be correctly or incorrectly applied.
Thirdly, it is, perhaps, unlikely that the legislature intended s 416 to empower the RRT to identify particular findings of fact made on an earlier occasion and to accept them as correct, while not accepting the decision or the finding or findings essential to it as correct. It is necessarily part of Mr Sun's submission that s 416 authorises the RRT to accept as correct some, but not all, the findings of fact made by the Fordham Tribunal. The difficulty which the RRT would have in distinguishing one finding of fact from another, without itself embarking upon the process of making findings of fact, suggests that the word "decision" in s 416 was not intended to refer to the making of findings of fact, at least unless they were indispensable to the decision on the earlier application.
Fourthly, the "decision" given on an earlier occasion is easily recognisable. The decisions which the RRT is empowered to make are set out in sub-s 415 (2), and, as noted earlier, they are distinct from the reasons for decision. Section 430 does not require the four elements (decision, reasons, findings and evidence) which are required to be included in the RRT's written statement to be set out or referred to in any particular form - under headings, for example. While the statement of the decision itself can be expected to be easily discernible, the same cannot necessarily be said of the
statement of the reasons, findings and the reference to the evidence. It can be expected that the statement may include findings for and against a party, and passages about which there will be argument as to whether they constitute findings at all.
The present case affords an illustration. The Fordham Decision is easily identified. It appears on the cover sheet of the "DECISION AND REASONS FOR DECISION". As well, it appears under the heading "DECISION" at the end of the document. The document contains other headings, including "CLAIMS AND EVIDENCE" and "REASONS FOR THE DECISION". There are references to the evidence under both of these headings. There are findings for and against Mr Sun, and passages about which there can be debate as to whether they constitute findings. The Fordham Credibility Acceptance itself is an illustration of a passage falling into this last category, although, as I have said, there are findings which, taken together, are to its effect.
Fifthly, s 416 seems to be addressed to all the information that was considered on the earlier application and the decision that was made about or because of all of that information. Accordingly, the section is directed to the final result on the earlier application, not a particular finding which was made in the course of the earlier Reasons for Decision based on only some of the information that was considered, and which was not essential to the result.
There is much to be said for the view that if the "decision" referred to in para 416 (d) extends to embrace findings of the Fordham Tribunal, it is only the finding that Mr Sun's fear was not well founded, since that was the finding that was essential to its decision that he was not a refugee. This construction is one which is conformity with the doctrine of issue estoppel (see later).
I need not resolve the issue of construction of s 416 finally, however, because the Member had discretion as to whether to invoke the power given by s 416. Beaumont J had intended this, although he cautioned against an unthinking exercise of the discretion to take to be correct the Fordham Tribunal's decision that Mr Sun was not a refugee on the basis of the information that had been before the Fordham Tribunal. The Smidt Tribunal decided against exercising the discretion given by s 416 and in favour of conducting a hearing de novo, as, in my opinion, it was entitled to do.
The Ransome Tribunal and the Smidt Tribunal had a discretion to "take to be correct [the] decision that the [Fordham] Tribunal ... made about or because of [the] information [considered in the application before the Fordham Tribunal]". The decision of the Fordham Tribunal adverse to Mr Sun, was made about or because of all the information, no more and no less, which the Fordham Tribunal considered. The Ransome Tribunal purported to choose to exercise the discretion and the Smidt Tribunal chose not to exercise it. The information
that was before the Fordham Tribunal did not include the information relating to the application to the Chinese Embassy for a passport that was before the Ransome Tribunal. Nor did it include additional information which was before the Smidt Tribunal relating to Mr Sun's claim of participation in pro-democracy activities in Beijing - evidence about the taking of certain photographs in Tiananmen Square, for example (see later).
1.3 Principles of issue estoppel and Repatriation Commission v Nation (1995) 57 FCR 25
1.3.1 Issue estoppel
Issue estoppel is explained by Dickson J in Blair v Curran (1939) 62 CLR 464 in the following familiar and oft-cited passage:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that 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.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In
matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter [(1) (1855) 4 E. & B. 780, at p. 794 (119 E.R. 288, at p. 293), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous." (at 531-532)