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MIGRATION - Application by respondent Minister for summary dismissal of substantive application seeking review of RRT decision - where no judicial review of the Tribunal decision had ever occurred - where application filed in the Federal Court/Federal Magistrates Court was dismissed by consent - where further application was made to High Court which was then remitted to the Federal Court - where said application was then dismissed by the Federal Court for failure to comply with directions of the Court - where applicant then filed an application for review in the Federal Magistrates Court - whether these current proceedings are an abuse of process - whether the doctrines of res judicata, issue estoppel or Anshun estoppel apply - whether Notice of Objection to Competency should be upheld.

SZECW v Minister for Immigration [2004] FMCA 786 (22 November 2004)

SZECW v Minister for Immigration [2004] FMCA 786 (22 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECW v MINISTER FOR IMMIGRATION
[2004] FMCA 786




MIGRATION - Application by respondent Minister for summary dismissal of substantive application seeking review of RRT decision - where no judicial review of the Tribunal decision had ever occurred - where application filed in the Federal Court/Federal Magistrates Court was dismissed by consent - where further application was made to High Court which was then remitted to the Federal Court - where said application was then dismissed by the Federal Court for failure to comply with directions of the Court - where applicant then filed an application for review in the Federal Magistrates Court - whether these current proceedings are an abuse of process - whether the doctrines of res judicata, issue estoppel or Anshun estoppel apply - whether Notice of Objection to Competency should be upheld.




Migration Act 1958 (Cth), ss.424A, 477(1A),483A

Judiciary Act 1903 (Cth), s.39B

Federal Magistrates Court Rules 2001

NAAV v MIMIA [2002] FCAFC 228

Azzi & Anor v MIMA (2002) 195 ALR 166

Applicant M17/2002 v MIMIA [2003] FCA 1364

MIMA v Anthonypillai (2001) 192 ALR 256

Wong v MIMIA [2004] FCA 51

Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342

Somanader v MIMA (2000) 178 ALR 677

BC v MIMA (2001) 67 ALD 60

Re Ruddock; Ex parte LX [2003] FCA 561

Thayananthan v MIMIA [2003] FCA 1054

Chamberlain v DCT (1988) 164 CLR 502

Stewart v Sanderson (2000) 100 FCR 150

Makoul v Barnes (1995) FCR 572

Blair v Curran (1939) 62 CLR 464

Jackson v Goldsmith (1950) 81 CLR 446

Foxman & Sons (Australia) Pty Ltd v Kubpower (NSW) Pty Ltd (unreported; Supreme Court NSW Court of Appeal, 23 October 1998)

Rogers v Legal Services Commission (1995) 64 SASR 572

Baines v State Bank of NSW (1985) 2 NSWLR 729

Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543

Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 453

Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406

Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543

BC v MIMA [2002] FCAFC 221

Isaacs v Ocean Accident & Guarantee Corp Ltd (1957) 58 SR (NSW) 69 Minero Pty Ltd v Redero Pty Ltd (unreported, Santow J, NSWSC 29 July 1998)

Daniel v MIMIA [2004] FCA 21

Bryant v Commonwealth Bank (1995) 130 ALR 129

Ling v Commonwealth (1996) 139 ALR 159

Handley J, `Res Judicata: General Principles and Recent Developments' (1999) 18 Aust Bar Rev 214

S.Maiden, `Recent Steps in the Evolution of Res Judicata, Cause of Action estoppel and the Anshun Doctrine in Australia' (2004) 25 Aust Bar Rev 130

Applicant:
SZECW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 2456 of 2004




Delivered on:


22 November 2004




Delivered at:


Sydney




Hearing date:


28 October 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in Person




Solicitors for the Respondent:


Ms Gibson for Sparke Helmore




ORDERS

(1) Substantive application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $2,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

(3) The applicant not be permitted to file any further application seeking judicial review of the decision of the Refugee Review Tribunal dated 20 May 2002 without leave of the Court. This order does not apply to any appeal against these orders.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 2456 of 2004

SZECW



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. These are proceedings by which the respondent Minister seeks interlocutory judgment against the applicant on a series of technical bases which few unrepresented applicants would be able to comprehend with any sophistication, based as they are on concepts of the common law alien to persons such as the present applicant who is from Nepal, and not without difficulty for Courts seeking to resolve them in a context where they are more readily understood and comprehensively argued.

2. It was accepted by the respondent to the substantive proceedings that the applicant's claims concerning the reviewable errors of the Tribunal had nowhere been ventilated. They had been the subject of two dismissals, first by consent before Federal Magistrate Barnes on

16 October 2002 and then by Justice Selway on 18 July 2003.

3. I took the view that in these circumstances it might be more in the interests of justice and good judicial administration to give the applicant an early hearing of his substantive claim and decide that rather than embark upon the interlocutory application which could involve hearings and appeals that led to a requirement to hear the substantive case in any event. I put this to the Minister's representative but the proposal was not accepted.

4. The notice of motion is in the following form:

1. That the application for judicial review filed on 4 August 2004 be dismissed on the grounds that:

(a) Anshun estoppel applies and there are no special circumstances to justify its non application

(b) Pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules, the proceedings are an abuse of process.

2. That the applicant pay the respondent's costs on an indemnity basis.

3. That no further application by the applicant to review the decision of the Refugee Review Tribunal dated 20 May 2002 be accepted for filing except with leave of the Court.

4. Any other order that the Court sees fit.

The respondent was given leave at the hearing to include two additional grounds, namely:

* The doctrine of res judicata applies and is a complete bar to the application;

* The doctrine of issue estoppel applies and is a complete bar to the application.

History

5. The applicant is a Nepalese citizen who arrived in Australia on 17 June 1999. On 16 July 1999 he lodged an application for a protection visa which was refused by a delegate of the Minister on 8 November 1999. The applicant claimed that he was a member of the Maoist party who had been detained in 1997 and had been released from custody conditionally. These claims were accepted by the delegate (including a claim that he may have been detained and tortured by the police in 1997) but nonetheless for reasons stated in the decision the delegate concluded at [CB 39]:

"There is not a chance that the applicant will be persecuted for his religious beliefs, or for any other Convention reason, if he returns to Nepal."

6. On 10 December 1999 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. On 11 March 2002 the applicant was invited to a hearing which was to take place on 24 April 2002. On 15 April 2002 the applicant faxed to the Tribunal a request for another hearing date as he was attempting to obtain evidence from Nepal. The Tribunal reluctantly agreed to a further extension to

20 May 2002. On 19 May 2002 a migration agent acting on behalf of the applicant wrote to the Tribunal informing it that the applicant was unable to obtain his documents and did not wish to come to a hearing. The agent did provide the Tribunal with a statement. The Tribunal proceeded to consider the matter and gave its decision on 12 June 2002. The decision is a short one of nine pages. On 4 July 2002 an application for judicial review and an affidavit in support was filed by a solicitor on behalf of the applicant with the Federal Court in matter N650/2002. On 25 July 2002 there was a directions hearing and on

26 July 2002 Hely J made orders remitting the matter to the Federal Magistrates Court. There it was given the number SZ612/2002 and placed into the docket of FM Barnes. The matter was due to be heard at 2.15pm on 24 October 2002 and the applicant's solicitors were so advised on 31 July 2002. On 16 October 2002, by consent, the application was dismissed and the applicant was ordered to pay the respondent's costs fixed in the amount of $1,200. That order was perfected on 23 October 2002.

7. On 13 November 2002 another solicitor in South Australia filed an affidavit and draft order nisi in the High Court of Australia under matter number A291/2002. In the Federal /Federal Magistrates Court proceedings the grounds for impugning the decision of the Tribunal were

1. The applicant is aggrieved by the decision of the RRT because it failed to act on proper principles and failed to take into consideration the merits of the case.

2. The RRT did not act in good faith to make the decision.

3. The decision made by the RRT was an improper exercise of the power conferred by the Migration 1958 and Migration Regulations 1994 as amended.

4. The decision involved an error of law being an incorrect interpretation of the applicable law and incorrect application of the law to the facts.

In the High Court the grounds of complaint in respect of the decision were listed as being

1. That a breach of the rules of natural justice occurred in connection with the making of the decision.

2. That the decision involved an error of law, whether or not the error appears on the record of the decision.

3. The procedures that were required by law to be observed in connection with the making of the decision were not observed.

4. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

5. There was no evidence or other material to justify the making of the decision.

6. That the decision was otherwise contrary to law.

8. On 7 February 2003 Hayne J, by consent, ordered that the matter be remitted to the Federal Court where it was given matter number S253/2003. On 26 May 2003 von Doussa J made some comprehensive directions and listed the matter for a further directions hearing on

18 July 2003. The first order made required the applicant to take certain steps including the filing and serving of an amended application specifying precisely the errors upon which the decision under review was challenged, the serving of outlines of submissions and a memorandum which would assist the Court to decide whether the matter should remain in South Australia or be remitted to the Federal Magistrates Court either in that State or elsewhere. The matter came before Selway J on 18 July 2003. His Honour made the following orders:

1. In the absence of any steps having been taken in accordance with the orders made on 26 May 2003 by von Doussa J , the application is dismissed.

2. Applicant to pay first respondent's costs fixed at $1,500 inclusive of disbursements and High Court Australia costs.

The Minister submitted that these orders were unopposed.

9. At all times after 18 July 2003, or in any event after the time for an appeal against those interlocutory orders had expired, until 4 August 2004 the applicant was a person remaining in Australia without a visa who the respondent was entitled to take into detention and deport under the provisions of the Migration Act. This did not happen. On 4 August the applicant filed an application for judicial review in this Court under matter number SZ2456/2004. The grounds of the application were said to be:

1. That the Tribunal's decision was in breach of s.418(3) of the Migration Act.

2. The Tribunal exceeded its jurisdiction in failing to accord the procedural fairness as required under s.424A(1) Migration Act 1958.

3. That the Tribunal is bound to follow procedural fairness in reaching its decision and a failure to follow procedural fairness will lead to jurisdictional error which is not protected from review by the privative clause.

4. That a breach of the rules of natural justice occurred in connection with the making of the decision.

5. That the decision involved an exercise of the power that is so unreasonable that no reasonable person could have exercised the power.

6. The taking of an irrelevant consideration in account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power which involved error of law in the Tribunal's decision.

10. On 13 August 2004 the Minister filed a Notice of Objection to Competency on the grounds that the Tribunal decision of 20 May 2002 was a decision which was covered by s.477(1A) Migration Act and that any application to the Federal Magistrates Court under s.39B Judiciary Act and s.483A Migration Act was required to have been made within 28 days of the notification of the Tribunal decision.The matter was set down for directions on 6 September 2004 and on that day the respondent Minister filed the Notice of Motion which is presently before me.

Consideration

11. On 26 October 2004 the applicant filed some submissions. He stated that when he lodged his original application the High Court had not decided the Muin and Lie cases but he says that his case is identical to those and he wishes to rely on those cases in his application before this Court. This applicant does not appear to be one of those persons who joined the Muin and Lie class actions. A perusal of the proceedings in the High Court which were transferred to the Federal Court does not reveal any specific reference to those decisions although the first ground of application is that a breach of the rules of natural justice occurred in connection with the making of the decision. There is little doubt that this description could include an application based upon the facts of Muin and Lie. The applicant says in his submissions that he had to discontinue his applications in the Federal Court and the High Court of Australia because of insufficient funds. It seems to me that what occurred in relation to these various proceedings is that the applicant's first case was withdrawn from the Federal Magistrates Court at a time when the decision in Muin had been handed down but also at a time when, because of the decision in NAAV he was prevented from bringing a case based upon the Muin and Lie grounds in either the Federal Court or the Federal Magistrates Court. That was why the new proceedings were commenced in the High Court (NAAV v MIMIA [2002] FCAFC 228).

12. The second ground raised by the applicant in his submissions was that he was misled by the Tribunal in relation to the invitation to give oral evidence and was therefore unable to attend the hearing. If this had occurred it would be a procedural fairness issue. Procedural fairness does not appear to have been raised in terms in the application to the Federal Court dated 4 July 2002 although it was in the proceedings before the High Court that were eventually dismissed by Selway J. The difficulty that I have with this ground is that the facts do not bear it out. The letter of 15 April 2002 sought to postpone the hearing whilst the applicant recovered documents from Nepal. That was agreed to on 16 April 2002 and a new hearing date was set. The response to the hearing invitation was sent by the applicant's agent on 17 May 2002 and the box consenting to the Tribunal proceeding to make a decision without taking any further action to allow or enable the applicant to appear before it was ticked. A statement was submitted requesting the Tribunal to consider his case positively [CB 52] - [CB58]. I can find no evidence of confusion.

13. There is another complaint made by the applicant that the Tribunal failed to investigate his claims through DFAT and independent sources. This is generally described as a "failure to investigate" claim. It is not a claim that was made or in my view hinted at in the initial proceedings but like the previous claim it has no prospects of success: see Azzi & Anor v MIMA (2002) 195 ALR 166 per Allsop J at [111] - [113] and the cases cited therein; Applicant M17/2002 v MIMIA [2003] FCA 1364 at [29]; MIMA v Anthonypillai (2001) 192 ALR 256 at [86].

14. The applicant also argues that the Tribunal "failed to internalise the circumstantial grounds of his review application while considering the claims of his review application and did not consider the supporting facts and documents". Whilst that is not a happy form of phraseology it would seem to me that the matters raised there are covered by points

1 and 4 of the applicant's grounds of appeal in the original proceedings.

15. The applicant's submissions then go on to explain the law and the jurisdiction of this Court before stating at [14]:

"The RRT has failed to investigate my claims, specifically the grounds for persecution in Nepal. Therefore, the Tribunal's decision dated on 20 May 2002 was affected by actual bias constituting judicial error."

This is the good faith ground number 2 in the applicant's Federal Court/Federal Magistrates Court application.

16. The applicant then argues that the Tribunal did not complete the exercise of its jurisdiction because it made no findings as to what socio-political changes might occur in Nepal in the reasonably foreseeable future and therefore failed to assess whether the applicant's fear of being persecuted for being a member of the Maoist Party of Nepal were well-founded in the reasonably foreseeable future. The Tribunal certainly acknowledged its responsibility to undertake this task at [CB 65] but an investigation as to whether or not it undertook the task would require a proper hearing. It is suggested by the Minister that this ground of review would be covered by the terms of ground 4 of the original application.

17. Finally the applicant argues that the Tribunal did not comply with the provisions of s.424A(1) Migration Act as it did not provide him with particulars of information which formed part of the reason for the Tribunal's decision namely that violence against Maoists had subsided. If I was hearing the matter in full I would have to decide whether or not, if this ground was made out, the information was not required to be given because of the proviso set out in s.424A(3) Migration Act. But for the purposes of this judgment I have to consider first whether the claim had been included within the grounds of review first brought in the Federal Court/Federal Magistrates Court or possibly within the High Court proceedings.

18. Section 424A is a procedural fairness section and I would tend to the view that it was not included in the original application, although it was clearly in the application to the High Court.

19. The result of this analysis is that there are certain elements of the current claim which are not identical to the proceedings initiated in the Federal Court [see paragraphs 11, 16 & 17].

20. In Wong v MIMIA [2004] FCA 51 Lindgren J described res judicata and issue estoppel in the following way:

[43] I need not discuss res judicata or issue estoppel at length. (The expression `res judicata' is sometimes used to include issue estoppel as one form, and merger of cause of action in judgment as a different form, but, consistently with the cases to be discussed below, I will use it here to refer to the form of estoppel which arises from the establishment, or failure to establish, a cause of action, by reason of a judgment.) For res judicata to operate:

* there must have been a final judgment (albeit appealable) within its jurisdiction, by a judicial tribunal, based on the establishment or failure to establish a cause of action;

* the later proceeding must raise the same cause of action; and

* except where the prior judgment was in rem, the parties to the two proceedings must be the same: cf Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at 1-3; Campbell, `Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation' (1994) 20 Mon U L Rev 21 at 21-22, and cases cited in both works.

[44] For issue estoppel to apply, an issue of fact or law which is raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding, and, again, except where the prior judgment was in rem, there must be identity of parties: Spencer Bower, Turner and Handley, chs 8, 9; Campbell at 22-23, and cases cited in both works.

[45] In Blair v Curran (1939) 62 CLR 464, Dixon J distinguished between res judicata and issue estoppel on the basis that in the case of res judicata the cause of action itself has `passed into judgment, so that it is merged and has no longer has an independent existence', whereas, in the case of issue estoppel, `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' (at 532 - the passage was adopted in Anshun by Gibbs CJ, Mason and Aickin JJ at 597).

[46] Where the earlier proceeding is dismissed in so far as it is based on a particular cause of action, that cause of action does not merge in the judgment: cf Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 (`Macquarie Bank') at 556 per Clarke JA, with whom Priestley JA agreed; BC (at [19] per Sackville J).

[47]Reliance on the same cause of action in successive proceedings will ordinarily raise the same issues, so that if a litigant is defeated by res judicata, an issue estoppel will also be present. But the converse is not necessarily true: an issue estoppel may defeat a litigant without res judicata doing so; cf the passages from the judgment of Dixon J in Blair v Curran set out in [45] above.

[48] The expression `cause of action' can bear different meanings, and Brennan J observed in Anshun (at 610-611) that the imprecision in its meaning `tends to uncertainty in defining the ambit of the [res judicata] rule'.

21. Some principles are clear. Firstly, the doctrines of res judicata and issue estoppel apply in this type of administrative proceedings: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; Somanader v MIMA (2000) 178 ALR 677 per Merkel J; BC v MIMA (2001) 67 ALD 60 per Sackville J; Re Ruddock; Ex parte LX [2003] FCA 561 per Heerey J; Thayananthan v MIMIA [2003] FCA 1054 per Merkel J and Wong v MIMIA (supra). Secondly, if I find that there is a res judicata or an issue estoppel I have no discretion as to whether or not to accede to the Minister's request to dismiss these proceedings, at least in so far as there is commonality of issues: Chamberlain v DCT (1988) 164 CLR 502. Next Anshun estoppel may apply in these proceedings: BC (supra) but in those circumstances the Court does have limited discretionary powers: BC (supra); Stewart v Sanderson (2000) 100 FCR 150. Finally the dismissal by consent of the proceedings first brought in the Federal Court/Federal Magistrates Court by FM Barnes can give rise to a plea of res judicata or issue estoppel: Makoul v Barnes (1995) FCR 572 at 502; Somanader (supra).

22. The doctrine of res judicata and issue estoppel are both concerned with ensuring finality of litigation. However, as has been noted in cases such as Blair v Curran (1939) 62 CLR 464 at 531 and Jackson v Goldsmith (1950) 81 CLR 446 at 466-467, they do operate differently. Res judicata prevents re-agitation of the same cause of action where there has been previous judicial determination of the matter. In contrast issue estoppel applies where, although a separate cause of action is argued, an issue of fact or law is relied upon that has previously been determined and which formed the basis of an earlier judgment. As Fullagar J said in Jackson v Goldsmith at 467:

"It follows from the very nature of the difference between the plea of res judicata and the plea of issue estoppel that different materials are relevant in each case. Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided."

Res Judicata

23. The doctrine of res judicata does not apply in respect to interlocutory proceedings as the decision must be one on the merits. For an in depth discussion of this principle and the exceptions thereto see the comments of Handley J in his paper `Res Judicata: General Principles and Recent Developments' (1999) 18 Aust Bar Rev 214 at 215-16 and also Foxman & Sons (Australia) Pty Ltd v Kubpower (NSW) Pty Ltd (unreported; Supreme Court NSW Court of Appeal, 23 October 1998); Rogers v Legal Services Commission (1995) 64 SASR 572 at 595; Baines v State Bank of NSW (1985) 2 NSWLR 729 at 738. The doctrine cannot be used to prevent this Court from having jurisdiction in respect of the procedural fairness claim that was dismissed by Selway J on the grounds that the applicant had not complied with orders for directions.

24. Maiden (supra) quotes Dixon J in Blair v Curran (1939) 62 CLR 464 as defining this principle in the most elegant and succinct way. His Honour said:

"A judicial determination directly involving an issue of fact or 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. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded."

25. Cases such as Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 453; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 and Macquarie Bank Ltd v National Mutual Life Association of Australia (1996) 40 NSWLR establish that it is the substance of a cause of action and not the form that is relevant when considering whether an action is barred by estoppel. It is therefore necessary to examine the grounds being advanced in support of the subsequent proceedings to determine whether there is a commonality between the causes of action.

26. I found above at [18] that the procedural fairness claim was not a ground of review in the original proceedings in the Federal Court/ Federal Magistrates Court. It is my view that the claim in relation to procedural fairness was not contemplated by the wide grounds contained in the affidavit annexed to the original application. I am alert to the fact that the outcome sought by the applicant in the present proceedings is the same as that pursued in his earlier applications for judicial review, namely an order of the Court declaring that the decision is void and of no effect and remitting the matter to the Refugee Review Tribunal for determination in accordance with law. However I do not take this as meaning that the cause of action has been duplicated so as to give rise to res judicata estoppel. In this regard I refer to the comments of Sackville J in BC v MIMA (2001) 67 ALD 60 where his Honour said at [36]:

"I recognise that each "ground" of judicial review of an administrative decision does not necessarily constitute or found a separate "cause of action" for the purposes of res judicata or cause of action estoppel. But in this case the applicant, in the Pt 8 proceedings identified an alleged flaw in the RRT's decision quite distinct from the alleged flaw relied on in the remitted proceedings. It is true that each flaw, if established, would lead to similar relief being granted (although the source of the jurisdiction and power to grant the relief is different). But in characterising the respective claims to set aside or quash the RRT's decision, the court should lean towards regarding each as founding a separate legal claim for relief and therefore as constituting a separate cause of action. Otherwise there is a risk that litigants will be too readily shut out from pursuing a legitimate claim without the court being able to consider the particular circumstances of the case and, if appropriate, to exercise a discretion in favour of the applicant. In the present case, the claims made in each proceedings are sufficiently distinct to warrant the conclusion that they are founded on separate causes of action."

The decision of Sackville J was upheld on appeal by the Full Bench in BC v MIMA [2002] FCAFC 221. For the reasons stated above, I find that the doctrine of res judicata does not apply.

Issue estoppel

27. I am not satisfied that there is an issue estoppel as between the original Federal Court proceedings concluded by Federal Magistrate Barnes and the current proceedings because I am not satisfied that the issue of procedural fairness was one of the issues encapsulated in those proceedings. In considering the concept of res judicata in Wong at [48] Lindgren J noted that the expression could bear different meanings and that the imprecision in its meaning "tends to uncertainty in defining the ambit of the rule". In an article by Stewart Maiden in the Australian Bar Review `Recent Steps in the Evolution of Res Judicata, Cause of Action estoppel and the Anshun Doctrine in Australia' (2004) 25 Aust Bar Rev 130 the learned author noted the tricotomy of forms which Brennan J in Anshun said the term was used to refer to. The article goes on to suggest that the proper approach is to look at the substance of the action as distinct from its form: Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543. As I understand this in the context of applications for judicial review the doctrine would only apply when the error which grounded the need for the review was articulated and considered in the earlier proceeding and sought to be raised again in the later one. I also note that in this case the series of facts which the applicant must allege and prove to substantiate his right to judgment are different. The fact that he has to prove in order to obtain a right to judgment when claiming that he was not granted procedural fairness is a fact concerning the conduct of the Tribunal. It is established from looking at the way the decision was arrived at rather than from the decision itself. It may also be capable of being established by other means, for example by looking at the transcript. In this case there was no reference to a failure to provide procedural fairness in the application that went before Barnes FM and I am unable to see how it could be said that it was "judicially considered" when she made her consent orders.

28. Issue estoppel like res judicata can operate where there is a judgment by consent: Isaacs v Ocean Accident & Guarantee Corp Ltd (1957) 58 SR (NSW) 69; Minero Pty Ltd v Redero Pty Ltd (unreported, Santow J, NSWSC 29 July 1998). In this case that would mean that there is an issue estoppel in respect of all four of the grounds set out in the application of 4 July 2002 filed in the Federal Court. I have found that this did not include procedural fairness but I believe that the grounds are sufficiently wide to cover the alleged breach of s.418(3) Migration Act - ground one of the application of August 2004 covered by ground number two in the applicant's affidavit of 3 July 2002. The claim of Wednesbury unreasonableness found as ground five in the current application seems to me to have been covered by either paragraph four in the affidavit of 3 July 2002 or ground one of the grounds in the same affidavit. The Yusuf claim which is ground six in the current application seems to me to have been covered by paragraph four of the affidavit or possibly ground two of the grounds of appeal in the same affidavit.

Anshun estoppel

29. What constitutes an Anshun estoppel is considered by Lindgren J in Wong at [49] and in the Maiden article at pp.9-12. It is a doctrine which prevents a party from raising in new litigation points which properly belong to the subject of earlier litigation where it would have been unreasonable for the applicant not to rely upon it. It remains open to the court to allow the later proceedings to continue if special circumstances exist which warrant a departure from the prima facie operation of the doctrine. Factors which may be taken into consideration have been outlined in Anshun per Gibbs CJ, Mason J, Aickin J at pp.602 - 604. I also note that in Daniel v MIMIA [2004] FCA 21 Goldberg J at [29] found that although the outcome of the proceedings would have serious consequences for an applicant seeking judicial review of a RRT decision, this alone does not warrant a departure from the Anshun principle.

30. In the case presently before me I can see no special circumstances to justify an abandonment of the Anshun doctrine. In coming to this conclusion I have had regard to the test set out by the Full Federal Court in Bryant v Commonwealth Bank (1995) 130 ALR 129 at 139 whereby consideration is given to whether the subsequent claim arises out of "substantially the same facts". There was nothing preventing the applicant from raising the procedural fairness argument in the Federal Court proceedings concluded before FM Barnes. However, this he did not do. The law is clear. It is not appropriate that the applicant seek to now litigate the matter in this Court when he has already had repeated opportunity to have the decision of the Refugee Review Tribunal judicially reviewed. I would like to point out that the fact that this has never occurred was a matter of concern to this Court. Despite the voluminous number of migration cases that come before the federal courts, and the clear concern that this causes the Minister, the gravity of the claims that are made by applicants should not be underestimated. Australia's international obligations under the Refugee Convention are clear and wherever possible it is preferable for an applicant to have the substantive issues of his or her application determined by a court. In Ling v Commonwealth (1996) 139 ALR 159 Wilcox J set out both the benefits and dangers of the Anshun principle and cautioned against applying the doctrine too readily. His Honour said at 160:

"The principle applied by the High Court of Australia in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 is designed to minimise the burden of litigation. It enables courts to ensure that parties put their whole case forward at one time, thereby eliminating duplication of effort and expense and reducing the opportunity for a party to harass a weaker opponent with repeated suits. However, these benefits come at a price. The result of a court applying the principle is to shut out a claim or defence that a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation. As the Judicial Committee of the Privy Council pointed out in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd (1975) AC 581 at 590, this is a serious step, a power not to be exercised except "after a scrupulous examination of all the circumstances". If the Anshun principle is too readily applied, there is a possibility of serious injustices."

31. However, blame for the failure to have the substantive claim heard prior to this application does not lie with the Minister. It was the applicant who consented to the dismissal by Barnes FM. It was the applicant who did not comply with the orders of von Doussa J. The Minister declined to permit a substantive hearing when the decision came up for review a third time. There may well be proper policy reasons for taking this course. Having examined all the circumstances I would not exercise such discretion as I might have to decline to make orders giving effect to the estoppel I have found exists.

32. The Minister filed a Notice of Objection to Competency on 13 August 2004 on the basis that the application in the Federal Magistrates Court for judicial review was filed on 4 August 2004 more than two years after the decision of the Refugee Review Tribunal. Where the decision of the Tribunal has already been held to be a privative clause decision, the effect of s.477(1A) is that the Court does not have jurisdiction to hear another application. The effect of my decision would, I believe, exclude a finding that the Court had determined the matter was not a privative clause decision by virtue of the consent dismissal. Had `Anshun' not applied then the proceedings could have continued and if that was the case the issue of competency would fall to be determined after a decision as to the existence of jurisdictional error had been made.

33. For the above reasons I must dismiss the substantive application.

I order that the applicant pay the respondent's costs assessed in the sum of $2,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I would not be prepared to make an order for indemnity costs as requested. However, I further order that the applicant not be permitted to file any further application seeking judicial review of the decision of the Refugee Review Tribunal dated 20 May 2002 without leave of the Court. This order does not apply to any appeal against these orders.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 November 2004
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