BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (4 December 2001)

Last Updated: 5 December 2001

FEDERAL COURT OF AUSTRALIA

BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669

RES JUDICATA - proceedings under Constitution s 75(v) seeking constitutional writs - proceedings remitted to the Federal Court - claim that Refugee Review Tribunal acted unreasonably in making a finding as to a jurisdictional fact - applicant failed in earlier proceedings for judicial review under Part 8 of the Migration Act 1958 (Cth) - whether remitted proceedings barred by res judicata or cause of action estoppel.

ANSHUN ESTOPPEL - whether applicant had unreasonably failed to raise jurisdictional unreasonableness argument - whether special circumstances present - whether applicant precluded from pursuing argument.

Constitution, s 75(v)

Judiciary Act 1903 (Cth), s 44

Migration Act 1958 (Cth), ss 36, 65, 475, 476, 485, 486

Defence Forces Discipline Act 1982 (Cth)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 1997 CLR 611, considered.

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, cited.

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, cited.

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59, applied.

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, applied.

Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19, cited.

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, cited.

Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, cited.

Henderson v Henderson (1843) 3 Hare 100, at 115; 67 ER 313, cited.

Rahme v Commonwealth Bank of Australia (NSWCA, unreported, 20 December 1991), cited.

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, cited.

Stuart v Sanderson [2000] FCA 870; (2000) 100 FCR 150, distinguished.

Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, cited.

Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510, cited.

Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332, cited.

Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581, cited.

Ling v Commonwealth (1996) 68 FCR 180, cited.

Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81, cited.

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, followed.

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

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, cited.

Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 436, considered.

Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, cited.

Arnold v National Westminster Bank Plc [1990] Ch 573, cited.

Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1999] HCA 14; (1999) 197 CLR 510 cited.

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, cited.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, cited.

Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14, cited.

K R Handley, "Anshun Today" (1997) 71 ALJ 934.

BC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1075 OF 2001

SACKVILLE J

SYDNEY

4 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1075 OF 2001

BETWEEN:	BC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	4 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceedings, in so far as they have been remitted to this Court by order of Gummow J made on 8 June 2001, be dismissed.

2. The applicant pay the costs of the respondent of the proceedings remitted to this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1075 OF 2001

BETWEEN:	BC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	4 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 On 12 April 2001, the applicant, a Pakistani citizen, commenced proceedings in the original jurisdiction of the High Court pursuant to s 75(v) of the Constitution. The proceedings challenge a decision made by the Refugee Review Tribunal (the "RRT") on 20 December 2000, which affirmed a decision of a delegate of the first respondent ("the Minister") to refuse to grant a protection visa to the applicant. The relief sought by the applicant in the High Court includes a writ of certiorari quashing the RRT's decision and a writ of mandamus directing the RRT to perform its statutory duty. The key claim made by the applicant, which he wishes to have reconsidered by the RRT, is that he has a well-founded fear of persecution in Pakistan, in particular because he converted from the Muslim faith to Christianity, after having previously converted from Christianity to the Muslim faith.

2 On 8 June 2001, Gummow J made an order pursuant to s 44 of the Judiciary Act 1903 (Cth) ("Judiciary Act") remitting portion of the High Court proceedings to this Court. Adapted to take account of the removal of the second and third respondents initially named in the High Court proceedings and the substitution of the RRT as the second respondent, the grounds remitted to this Court are as follows:

(a) the RRT did not have jurisdiction to make the decision affirming the decision of the Minister's delegate refusing to grant the applicant a protection visa;

(b) the decision of the RRT was not authorised by the Migration Act 1958 (Cth) ("Migration Act") or the Migration Regulations; and

(c) the decision involved an error of law involving an incorrect application of the law to the facts as found by the RRT.

THE CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK

3 Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Where a matter in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth is pending in the High Court, the Court may remit the matter, or any part of it, to the Federal Court or any State or Territory Court: Judiciary Act, s 44(2). Where the High Court remits a matter, or part of a matter, pursuant to s 44(2) to a Court, that Court has jurisdiction in the matter or in that part of the matter: s 44(2A)(a).

4 It might be thought that, by reason of the Judiciary Act, s 44(2A)(a), the Federal Court would have jurisdiction in any matter remitted to it by the High Court. The present case is, however, governed by Part 8 of the Migration Act in the form it took prior to the coming into force of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and the Migration Legislation Amendment Act (No 1) 2001 (Cth). Section 476(1) of the Migration Act, in that form, specifies the grounds of review available in the Federal Court in respect of "judicially-reviewable decisions", including decisions of the RRT: see s 475(1)(b). The grounds of review specified in s 476(1) include the following:

"(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation 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."

It will be seen that the grounds remitted to this Court corresponded to the grounds specified in s 476(1)(b), (c) and (e) of the Migration Act.

5 Reference should also be made to s 476(2)(b) of the Migration Act, to which s 476(1) is expressed to be subject:

"(2) The following are not grounds upon which an application may be made under sub-section (1):

(a) ...;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."

6 Sections 485 and 486 of the Migration Act provide as follows:

"485(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this part or by section 44 of the Judiciary Act 1903.

...

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

486 The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution."

HISTORY OF THE LITIGATION

7 In order to follow the issues arising in this Court, it is necessary to recount briefly the history of the challenges brought by the applicant to the decision of the RRT.

8 The applicant arrived in Australia by boat, from Indonesia, on 17 December 1999. He subsequently applied for a protection visa. The applicant claimed to have a well-founded fear of persecution in Pakistan by reason of religion. He had been raised as a Roman Catholic in that country and married a Roman Catholic. He said that his brothers-in-law (all of whom were Muslim) had strongly disapproved of the marriage and had perpetrated outrages, including kidnapping his wife and children. The applicant claimed to have converted to Islam in order to obtain protection from the local Muslim community against his wife's family. The conversion had received publicity in local newspapers.

9 The applicant said that he ultimately located his wife and children, with the assistance of the Muslim community, and they resumed living together. In 1998, the applicant was rebaptised into the Christian faith by Christian missionaries. Thereafter he continued to live like a Muslim for all outward purposes, but secretly adhered to Christianity (although his son attended a Roman Catholic school). He said that he feared that false blasphemy charges would be brought against him and also that he feared harm from Muslims by reason of his reconversion to Christianity.

10 The application for a protection visa was rejected by the Minister's delegate on 25 October 2000. The RRT affirmed that decision on 20 December 2000, finding that the applicant did not have a well-founded fear of persecution for reasons of religion.

11 On 9 January 2001, the applicant filed an application for review of the RRT's decision in this Court. His amended application, filed on 15 March 2001, contained a single ground, as follows:

"s 476(1)(e) of the Migration Act 1958 - decision involved an error of law being an error involving an incorrect application of the law to the facts as found.

Particulars

The RRT considered the applicant's case in the context of Moslem extremists making false charges of blasphemy against individuals.

The RRT did not consider the applicant's case in the context of the applicant having satisfied the grounds for charges to be laid against him, on account of his reconversion from Islam to Christianity and the persecutory application of that law, nor did the RRT consider the law as persecutory per se against converts from Islam to Christianity."

12 Madgwick J heard the application for review of the RRT's decision on 16 March 2001. The applicant was represented at the hearing by the same counsel who appeared on his behalf in the present proceedings. His Honour delivered an ex tempore judgment dismissing the application. The core of his Honour's reasoning is contained in the following passages (at [13]-[16]):

"Mr Killalea, for the applicant, in a careful argument submitted in essence that the factual finding that "[t]he Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously" could only reasonably have been made on the assumption that, when the finding was made, the Tribunal was only considering potential false blasphemy charges. This is because the applicant was truly guilty of some blasphemy or apostasy type offence for his actual apostasy, and would so obviously be gravely at risk from the likely outraged Moslem community, who came to his aid, if word of his reconversion should reach them, and that the Tribunal could not have had a true blasphemy type charge, or the community's reaction to true allegations, in mind.

I have considered this carefully. It is a matter of impression and turns on how one reads the decision of the Tribunal. In my opinion, the Tribunal distinguished between on the one hand trumped-up non-blasphemy charges, of which the applicant had also complained and, on the other hand, authentic blasphemy type charges and trouble which the applicant might face on account of his actual apostasy.

The finding that "[t]he Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously" was properly conceded by counsel for the respondent Minister to be a somewhat heroic one. However, it does not seem to me that, on that account alone, it is reviewable in this Court, and counsel for the applicant, who is experienced in these matters, has not attempted to place any reliance in this Court on the possible unreasonableness of that finding. That finding, it seems to me, really disposes of the applicant's case.

So does the finding that he could safely relocate and live in a Christian community. Again, with all due respect to the Tribunal, that is not a finding that would compel unanimous agreement. However, in my opinion it is not possible to say that the Tribunal approached the question of relocation wrongly in a relevant legal sense...".

(The reference in par 13 to the applicant's brothers-in-law relates to the RRT's finding that there was hostility between them and the applicant.)

13 The applicant did not appeal from the judgment of Madgwick J. On 12 April 2001, he commenced the proceedings in the High Court. I have set out the three grounds in the draft order nisi remitted to this Court. In addition to these grounds, the applicant relies in the High Court proceedings on Wednesbury unreasonableness and on the RRT's alleged failure to take into account a relevant consideration, namely that the applicant's brothers-in-law might inform Muslims in the local or wider community that he is an apostate. Presumably the reason for not remitting the last two grounds to this Court is that the view has been taken that this Court lacks power to grant relief on those grounds, by virtue of s 485(3) of the Migration Act, read together with s 476(2)(b) and s 476(3)(d).

THE SUBMISSIONS

THE APPLICANT'S ARGUMENT

14 Despite the applicant three grounds of review having been remitted to this Court, Mr Killalea in substance advanced only one argument on the applicant's behalf. The structure of that argument followed almost precisely the reasoning, obiter, of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, at 650-659. The argument was as follows:

(i) The effect of ss 36 and 65 of the Migration Act is that the Minister and, on review, the RRT, if "satisfied" that an applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugee ("the Convention") must grant that person a protection visa; if not so satisfied, the Minister or the RRT must refuse to grant the applicant the visa. The satisfaction of the decision-maker is a so-called "jurisdictional fact", in the sense that it is a precondition to the exercise of the statutory jurisdiction to grant a visa: Eshetu, at 651, [129]-[130].

(ii) A determination that the decision-maker is not satisfied that an applicant answers a statutory precondition to a power or obligation to confer a privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable in the exercise of the discretion conferred by s 75(v) of the Constitution: Eshetu, at 651, [131].

(iii) Where the existence of a particular opinion is made a condition of the exercise of a power, legislation conferring the power is treated as referring to an opinion which can only be formed by a reasonable person who correctly understands the meaning of the law under which he or she acts: Eshetu, at 652, [133], citing Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, at 430.

(iv) In cases where the decision-maker must be "satisfied" of a matter, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it: Eshetu, at 653-654, [136], citing Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, at 118-119.

(v) Within the framework of the principle stated in (iv), review is permitted in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds: Eshetu, at 657, [145].

(vi) Review may also be permitted if the evidence which establishes or denies or, with other matters, goes to establish or deny, that the necessary criterion has been met was all one way (thereby demonstrating that no reasonable decision-maker could have arrived at the decision in question): Eshetu, at 654, [137].

(vii) Section 476(2)(b) of the Migration Act does not exclude the Federal Court upon remitter from the High Court addressing a claim founded on what might be described as "jurisdictional unreasonableness". That is because s 476(2)(b), as a matter of construction, is confined to so-called Wednesbury unreasonableness and does not extend to jurisdictional unreasonableness: Eshetu, at 658-659, [154].

(viii) The RRT committed jurisdictional error in the present case because its conclusion that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention was unreasonable in two respects:

(a) the evidence going to establish that the applicant had a well-founded fear of persecution for reasons of religion was all one way; and

(b) the decision was based on findings or inferences of fact that were not supported by probative material or logical grounds.

In particular, Mr Killalea submitted that the finding that the applicant was not at risk of being revealed as an apostate and thus not at risk of being identified as a convert from Islam to Christianity was not supported by probative material or logical grounds. Moreover, so he argued, that finding was critical to the ultimate conclusion that the applicant did not have a well-founded fear of persecution for reasons of religion.

THE MINISTER'S RESPONSES

15 The Minister put forward five responses to the applicant's argument, each of which was said to be a complete answer to his claim for relief in this Court.

(i) First, Ms Abadee, who appeared for the Minister, submitted that, as a single Judge of the Court, I was bound by the decision of the Full Court in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59. It followed that I was bound to hold that, as a matter of construction, s 476(2)(b) of the Migration Act precludes review in this Court of RRT decisions, not only on the ground of Wednesbury unreasonableness, but also for jurisdictional unreasonableness. It was not to the point that Gummow J in Eshetu had provisionally expressed a different view as to the operation of s 476(2)(b) of the Migration Act. The relevant passage from the leading judgment of Stone J in Gamaethige is set out at [60] below.

(ii) Secondly, the Minister relied on the principle discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 ("Anshun"). That principle required the applicant, in the absence of "special circumstances", to bring forward the whole of his case in the proceedings before Madgwick J. Since the applicant could have raised the jurisdictional unreasonableness argument in the earlier proceedings, he could not now be permitted to bring forward that case. There were no special circumstances warranting a departure from the principle.

(iii) Thirdly, as an alternative to the second argument, the Minister submitted that the applicant's cause of action against the Minister had merged in the judgment of Madgwick J. It followed, so it was argued, that the doctrine of res judicata precluded the applicant from relying upon the same cause of action in the proceedings remitted to this Court.

(iv) Fourthly, the Minister contended that the proceedings remitted to this Court constitute an abuse of process. In the course of oral argument, however, Ms Abadee accepted that this contention added nothing of substance to the Anshun and res judicata arguments. Nothing more need be said about it.

(v) Finally, the Minister submitted that, even if the Court had jurisdiction to entertain the jurisdictional unreasonableness ground, the RRT's decision did not come within the concept of unreasonableness as expounded by Gummow J in Eshetu. In particular, there was probative material to support the findings of fact upon which the RRT's decision was based. Nor could it be said that the evidence was all "one-way" to the effect that the applicant satisfied the relevant test, namely whether he had a well-founded fear of persecution for reasons of religion.

16 The Minister's written submissions also mentioned issue estoppel, as distinct from res judicata. As I followed the argument, however, it was not suggested that, in the circumstances of the present case, issue estoppel would apply if res judicata did not.

IS THE APPLICANT PRECLUDED FROM PURSUING THE REMITTED PROCEEDINGS?

THE PRINCIPLES

17 The logical starting point for the present proceedings is whether the applicant is precluded from pursuing the matters remitted to this Court by reason of the res judicata doctrine or the Anshun principle. The decision of the Full Court in Gamaethige v Minister is relevant only if the applicant is not otherwise precluded from advancing his claims in the remitted proceedings.

18 In Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19, Kenny JA (with whom Ormiston and Phillips JJA agreed) said (at 26) that the

"rule of res judicata is that, generally speaking, no proceedings can be maintained as a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment."

The distinction between res judicata and issue estoppel was expressed by Dixon J in a well-known passage in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, at 532:

"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."

This passage was adopted in the joint judgment of Gibbs CJ, Mason and Aicken JJ in Anshun, at 597.

19 The present case is one where the applicant failed to establish his claim to judicial review in the proceedings determined by Madgwick J. In a case where the applicant has failed in the earlier proceedings, as Clarke JA (with whom Priestly JA agreed) observed in Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, at 546, there is nothing to merge in the judgment and "the doctrine of res judicata operates as a true estoppel". The doctrine is said to rest on the rule of public policy expressed in the Latin maxim "nemo debet bis vexari pro si constat curiae quod sit una et eadem causa" ("no one ought to be molested twice, if it appears to the Court that it is for one and the same matter"): Anshun, at 597.

20 Anshun endorsed the "extended principle" expressed by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, at 115; 67 ER 313, at 319:

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

21 Anshun involved a claim by the owner of a crane to enforce a contractual indemnity against the hirer. In previous proceedings a worker had obtained damages against both the owner and the hirer. The owner and hirer had made claims for contribution against each other and, as between themselves, had been ordered to pay 90 per cent and 10 per cent, respectively, of the damages. The High Court held that the owner's claims to an indemnity in the second proceedings had been correctly stayed, by reason of the extended principle in Henderson v Henderson. The joint judgment reformulated the test, as follows (at 602-603):

"[W]e would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."

22 Their Honours pointed out (at 603) that it had generally been accepted that a party is estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In their view, the likelihood that the omission to plead a particular matter as a defence will contribute to the existence of "conflicting judgments" is an important factor to take into account in deciding whether the omission can found an estoppel against the assertion of the same matter as the foundation for a cause of action in the second proceeding. By "conflicting judgments" their Honours included (at 604):

"judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."

23 The owner's claim to an indemnity failed because, taking into account all relevant factors, the claim was so closely connected with the subject matter of the first proceedings that "it was to be expected that it would be relied on as a defence" to the claim for contribution made in those proceedings. It was unreasonable for the owner to refrain from raising its case of indemnity for disposition in the first proceeding.

24 The Anshun principle also applies to cases where an applicant asserts a claim in proceedings unsuccessfully and subsequently institutes fresh proceedings based on a different cause of action which relies substantially on the same facts as the first proceedings: Rahme v Commonwealth Bank of Australia (NSWCA, unreported, 20 December 1991), discussed in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (FC), at 297. It has also been held that the Anshun principle is capable of applying to successive proceedings in which the applicant seeks judicial review of an administrative decision: Stuart v Sanderson [2000] FCA 870; (2000) 100 FCR 150, at 156-157, per Madgwick J. Mr Killalea did not dispute that these authorities correctly stated the position applicable to the present case.

25 In Macquarie Bank v National Mutual, Clarke JA pointed out that, although there are similarities between "estoppel by record" (including res judicata) and the Anshun principle, there are "fundamental differences" (at 558).

"In the former, proof that a party is seeking further to litigate a cause of action which has previously been taken to judgment operates as a complete bar to the later action. In the latter, the estoppel operates only where the new litigation involves a point or points which properly belonged to the first proceeding (Henderson) or unreasonably was or were not included in it (Anshun), and the appropriate order is a stay of proceedings. However, even where it is found that the point was unreasonably omitted from the first case, the court retains a discretion not to stay the second proceedings if special circumstances exist."

See also Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, at 511; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510, at 512. Even so, the categories may overlap. It has been said, for example, that Anshun itself may be explained as a case of issue estoppel: see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332, at 345, per Brennan and Dawson JJ; K R Handley, "Anshun Today" (1997) 71 ALJ 934, at 935.

26 The authorities emphasise that the Anshun principle, since it shuts out a litigant from pursuing a cause of action, should be applied only after a "scrupulous examination of all the circumstances": Bryant v Commonwealth Bank, at 296, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581, at 590; Ling v Commonwealth (1996) 68 FCR 180, at 182, per Wilcox J; Gibbs v Kinna, at 29, per Kenny JA. Moreover, the Anshun principle is subject to the "special circumstances" exception. In Bryant v Commonwealth Bank, the Full Court seemed to accept (at 296, 298-299) that the exception

"comprehend[s] situations where, for broad discretionary considerations related to notions of justice, [the principle] should not be applied with full rigour".

See also Stuart v Sanderson, at 159-160, per Madgwick J; Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81, at 89, per curiam.

RES JUDICATA

27 In Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, Merkel J held that the dismissal by consent of proceedings under Part 8 of the Migration Act to review a decision of the RRT, disentitled the applicants to claim relief by way of judicial review and constitutional writs pursuant to s 75(v) of the Constitution on the same grounds. Among the propositions accepted by his Honour were these:

* the doctrine of res judicata applies to successive applications for judicial review (at 688);

* in determining whether res judicata applies, the primary question is whether the cause of action in the later proceedings is the same as that which was litigated in the earlier proceedings (at 688);

* the identity of the respective causes of action is to be determined by matters of substance, rather than by form (at 690); and

* the fact that the later proceedings take the form of an application for constitutional writs, as distinct from an application under Part 8 of the Migration Act, does not prevent the cause of action in the later proceedings being in substance identical to the cause of action determined in the earlier proceedings (at 690).

28 Mr Killalea disputed none of these propositions. However, he resisted the application of res judicata on the ground that the cause of action dismissed by Madgwick J, in what I shall refer to as the Part 8 proceedings, was not the same as those raised by the remitted proceedings. Mr Killalea pointed out, correctly, that Somanader v Minister was a different case to the present. There the applicant had relied on seven grounds of review in the earlier Part 8 proceedings, all of which were, in substance, repeated in the grounds relied on in the proceedings determined by Merkel J. Mr Killalea submitted that the present case was different because the single cause of action relied on by the applicant in the Part 8 proceedings was different from the cause of action relied on in the remitted proceedings.

29 Brennan J in Anshun (at 610) pointed to "the imprecision in the meaning of the term `cause of action'". In Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 (affirmed (1993) 46 FCR 570), Gummow J (at 418) referred to three of the senses in which the term is used:

"(i) the series of 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."

His Honour considered that the third test was the most suitable to apply in Australia, in part because it allows for the many proceedings which come before the courts without pleadings. Merkel J adopted the "substance" approach in Somanader; compare Macquarie Bank v National Mutual, at 558-559, per Clarke JA.

30 It is not necessarily a simple matter to apply the "substance" test, particularly where the applicant's cause of action does not rest on facts that must be established by evidence, but on the grounds available for judicial review of a decision of an administrative tribunal or decision-maker. A factor to bear in mind in comparing the causes of action in different proceedings is that care is needed not to take a view that is "too expansive": Macquarie Bank v National Mutual, at 560. While Clarke JA made that observation in the context of examining the factual similarities between the two sets of proceedings, I think it equally applies to successive applications for judicial review of an administrative decision. It is to be remembered that res judicata, or cause of action estoppel, bars a litigant from pursuing a claim without the court retaining a discretion to ameliorate the application of the doctrine in unusual circumstances.

31 In the Part 8 proceedings determined by Madgwick J, the applicant relied on what was said to be an error of law committed by the RRT. The particulars identified the error as the failure of the RRT to consider the applicant's case on the basis that he had actually committed blasphemy by reconverting from Islam to Christianity and that he had therefore faced "the persecutory application of that law". Madgwick J's judgment (par 13) suggests that the argument was put somewhat more broadly than the particulars might suggest. That is, the applicant argued that the RRT had failed to address his claim to be at grave risk of harm from outraged sections of Muslim community, should they learn of his reconversion. Madgwick J rejected the argument, holding that the RRT had considered the risk of harm to the applicant both from trumped-up blasphemy charges and from authentic claims that he had committed blasphemy by reconverting to Christianity.

32 It is clear from Madgwick J's judgment that the applicant did not rely on the possible unreasonableness of any of the RRT's findings. In particular, the applicant's counsel did not contend that the RRT's finding that no-one would take claims of apostasy by the applicant's brothers-in-law seriously was, in any sense, unreasonable. In short, in the Part 8 proceedings, the applicant did not attempt to make out a case either of Wednesbury unreasonableness or jurisdictional unreasonableness.

33 The ground relied on by the applicant in the remitted proceedings is that of jurisdictional unreasonableness. This is said to constitute both an error of law, and a jurisdictional error and also to have the consequence that the RRT's decision was made without authority. Despite the invocation of three separate "grounds" derived from s 476(1) of the Migration Act, in truth the applicant's claim for relief in the remitted proceedings derives from the "pre-existing substantive law" applicable to a claim for a constitutional writ: Somanader v Minister, at 691. That law requires the applicant to establish jurisdictional error.

34 It seems to me that, as a matter of substance, the applicant is relying in the remitted proceedings on a cause of action not determined by Madgwick J in the Part 8 proceedings. The applicant's case in the Part 8 proceedings was that the RRT had committed an error of law by failing to address the correct question, having regard to the facts it found (notably that the applicant had actually reconverted to Christianity and that his brothers-in-law were hostile to him and prepared to inflict harm on him). Madgwick J held that the RRT had addressed the correct issue and that no challenge had been made to the RRT's findings that resulted in that issue being resolved against the applicant.

35 In the remitted proceedings, however, the applicant accepts that the RRT addressed the correct question, but contends that it nonetheless committed jurisdictional error. The applicant says, inter alia, that the RRT based its satisfaction that the applicant was not entitled to a protection visa on findings or inferences of fact that were unsupported by probative evidence or logical grounds. Whatever the correct legal classification of the ground of review involved in these proceedings, as a matter of substance the asserted jurisdictional error on the part of the RRT is quite distinct from the ground addressed and disposed of by Madgwick J. The challenge the applicant now seeks to make to the RRT's decision was not put in suit in the earlier proceedings.

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 Part 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.

37 It follows that the applicant is not barred by res judicata or cause of action estoppel from pursuing the remitted proceedings.

THE ANSHUN PRINCIPLE

The Issues

38 The next question is whether the Anshun principle precludes the applicant from obtaining the relief sought in the remitted proceedings. Mr Killalea submitted that the Anshun principle does not apply to these proceedings, for two reasons:

* first, it was not unreasonable for the applicant not to have relied on the jurisdictional unreasonableness argument in the Part 8 proceedings; and

* secondly, there were special circumstances which warranted the Court declining to apply the Anshun principle to the remitted proceedings.

Was it Unreasonable not to have raised the Argument?

39 Before addressing Mr Killalea's submissions, reference should be made to a point that received relatively little attention in argument but, in my view, is of considerable importance. In Anshun, the High Court emphasised that an estoppel normally arises where a party brings proceedings which, if successful, will result in a judgment that conflicts with an earlier judgment. As Kenny JA pointed out (at 27) in Gibbs v Kinna, a factor indicative of "unreasonableness" in failing to assert a cause of action in an earlier proceeding, is that any judgment or order made in the later proceedings will conflict with the earlier judgment or order. Her Honour also pointed out that this factor explains the outcome of a number of cases, including Rahme v Commonwealth Bank and Bryant v Commonwealth Bank, to which reference has already been made.

40 In the Part 8 proceedings, Madgwick J dismissed the application for judicial review of the RRT's decision. If the applicant were to succeed in the remitted proceedings, the consequence would be the issue of a writ of certiorari quashing the decision and of a writ of mandamus directing the RRT to perform its duty to reconsider the application for a protection visa. In these circumstances, the remitted proceedings would result in a "conflicting judgment" in the sense in which that term was used in Anshun. This is a powerful indicator that it was "unreasonable" for the applicant not to raise the jurisdictional unreasonableness argument in the Part 8 proceedings.

41 Mr Killalea sought to avoid this difficulty by contending that recent authorities addressing the jurisdictional unreasonableness argument propounded by Gummow J in Eshetu showed why it was reasonable for the applicant not to have advanced the argument in the Part 8 proceedings. Mr Killalea frankly acknowledged at the outset, however, that the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 had approved, obiter, the general principle advanced by Gummow J, namely that, where a statutory power is expressed to turn on the satisfaction of a decision-maker as to a state of affairs, the decision-maker must be satisfied reasonably on the material before him or her: at 150, per Gleeson CJ, Gummow, Kirby and Hayne JJ, citing (inter alia) Eshetu, at 650-659. Accordingly, Mr Killalea accepted that the jurisdictional unreasonableness argument the applicant now seeks to advance had been clearly stated by Gummow J in Eshetu and (save for the s 476(2)(b) issue) endorsed by dicta in Enfield Corporation, well before argument took place in the Part 8 proceedings.

42 Mr Killalea submitted that, despite the High Court decisions, account had to be taken of the decision of Madgwick J himself in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 436. In that case, the applicant submitted that the RRT had acted irrationally in the making of a finding relating to a jurisdictional fact, citing in support Gummow J's reasoning in Eshetu. Madgwick J held (at [31]) that no irrationality had had been established. He also held, that s 476(2)(b) of the Migration Act excluded this ground of review in the Federal Court. The gravamen of his Honour's reasoning on the latter point is contained in the following passage (at [30]):

"While privative clauses should be jealously construed, it is clear from the terms of s 476(2)(a) and (b) that judicial review by the Federal Court on the grounds of natural justice or unreasonableness is not available. A denial of natural justice would ordinarily be a jurisdictional error. It would be strange if the supposed unreasonableness, going to a jurisdictional fact, but not natural justice, was outside the exclusion for review affected by subs (2)."

His Honour did not advert to Gummow J's tentative view, expressed in Eshetu, that s 476(2)(b) of the Migration Act does not apply to jurisdictional unreasonableness as distinct from Wednesbury unreasonableness.

43 Mr Killalea also relied on the decision in Gamaethige v Minister, notwithstanding that that case was decided after Madgwick J handed down judgment to the Part 8 proceedings. Gaemaethige followed Fernando in deciding that s 476(2)(b) of the Migration Act prevents the Federal Court entertaining a jurisdictional unreasonableness argument in relation to decisions of the RRT. As I followed the argument, it was that Gamaethige somehow vindicated retrospectively the course adopted by the applicant in the Part 8 proceedings.

44 It must be said that there is something very curious about the applicant's submission. There was no evidence that the applicant refrained from raising the jurisdictional unreasonableness argument in the Part 8 proceedings because his representatives had formed the view that Fernando foreclosed the argument, or because they anticipated that Gamaethige would be decided the way it ultimately was. On the contrary, Mr Killalea frankly acknowledged in argument before me that he had thought of the jurisdictional unreasonableness argument only after Madgwick J had handed down judgment in the Part 8 proceedings. I record this not in any way to be critical of the manner in which the Part 8 proceedings were conducted. My purpose is to highlight a major difficulty facing the applicant. The simple fact is that there is no evidence that the applicant or his advisers were aware of the obstacle that is now said to have made his failure to rely on the jurisdictional unreasonableness cause of action in the Part 8 proceedings "not unreasonable". It is hard to see how an obstacle of which the applicant was unaware could convert what otherwise would be an unreasonable failure to advance a claim into a not unreasonable course of action.

45 As I have said, the present proceedings create the prospect of the Court giving inconsistent judgments in the sense used in Anshun. It can hardly be suggested (and Mr Killalea did not suggest) that the jurisdictional unreasonableness argument was not very closely related to the subject matter of the Part 8 proceedings, namely the challenge to the RRT's decision affirming the delegate's refusal to grant the applicant a protection visa. It is also clear that the foundation for the argument the applicant now seeks to advance was clearly laid out, albeit obiter, in a judgment of a Judge of the High Court delivered nearly two years prior to the hearing of the Part 8 proceedings.

46 Had Fernando not been decided prior to the date the Part 8 proceedings were heard, the conclusion would have inevitably been reached that the jurisdictional unreasonableness argument was so "relevant to" the Part 8 proceedings that it was unreasonable for the applicant not to have relied on it. In this connection, it is necessary to recall the policy objectives underlying the Anshun principle, summarised by Madgwick J in Stuart v Sanderson (at 156):

"The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (Bryant at 298) and Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 at 423 per Gummow J.) It is also founded upon the need to avoid `conflicting' judgments (Anshun at 603-604), to ensure finality of litigation (Anshun at 609 per Brennan J and Bryant at 299), to prevent parties from gaining an advantage in the use of the Court's time...and in the more global expression of Murphy J `to preserve the orderly administration of justice' (Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes." (Emphasis in original.)

47 Even if, contrary to the fact, the applicant's legal advisers had refrained from pursuing the jurisdictional unreasonableness argument before Madgwick J by reason of his Honour's prior decision in Fernando, I do not think that would mean that the failure to advance the argument in the Part 8 proceedings was reasonable (or not unreasonable). On any view, Fernando did not foreclose the issue so far as a Full Court of this Court was concerned. If Madgwick J, after full argument (including reference to Gummow J's views on s 476(2)(b) of the Migration Act), had been minded to follow his previous decision in Fernando, the applicant could have challenged that ruling on appeal free from the constraints of any binding precedent. The fact that the Full Court in Gamaethige subsequently upheld Madgwick J's conclusion in Fernando does not advance the applicant's case on Anshun estoppel. Indeed, the only change in the law since the Part 8 proceedings were decided is that there is now the authority of the Full Court against the argument the applicant wishes to press in the remitted proceedings. In other words, the applicant wishes to press in this Court a cause of action which (as I shall explain) a Full Court has held is unavailable, yet seeks to argue that an unfavourable first instance decision was reason enough not to pursue the cause of action in the original Part 8 proceedings.

48 In my opinion, the applicant's failure to raise the argument he now wishes to pursue was unreasonable in the sense in which that expression was used in Anshun. The Anshun principle therefore applies to remitted proceedings unless there are special circumstances justifying the non-application of the principle.

Are there Special Circumstances?

49 Mr Killalea identified a number of matters that, in his submission, constituted "special circumstances", warranting the conclusion that the Anshun principle should not be applied to the circumstances of the present case. Leaving aside contentions that were repetitious or were not pressed, the matters relied upon were these:

* the proceedings raised important issues concerning the life and liberty of the applicant;

* at the time the Part 8 proceedings had been decided, there was express Federal Court authority denying the applicant's right to seek judicial review in this Court on the ground of jurisdictional unreasonableness;

* the recent High Court decision in Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, had "opened up the possibility of review" on the ground of jurisdictional unreasonableness in the Federal Court; and

* the ground of review now relied on is "meritorious".

50 I am prepared to accept that the "special circumstances" exception to the Anshun principle should not be understood narrowly, but should cover a case where justice requires the non-application of the general principle: Port of Melbourne Authority v Anshun (No 2), at 89 per curiam. Even so, I do not think that the matters raised by the applicant constitute a sound basis for declining to apply the Anshun principle to the remitted proceedings.

51 It is true that the applicant's claims, if accepted, suggest that his safety and even his life might be in peril if he were to be returned to Pakistan. Regrettably, that is true of very many, if not all, applications in this Court seeking judicial review of decisions refusing to grant protection visas. I do not think that this fact, of itself, justifies declining to apply the Anshun principle, if it is otherwise applicable. Even in cases of this kind, the policies underlying the Anshun principle retain their force. If the applicant's submission is correct, a legally represented applicant who fails in an application for judicial review of an RRT decision, would be able to institute fresh proceedings in order to pursue grounds that had simply been overlooked or inadequately appreciated at the first hearing, or even deliberately abandoned. (Proceedings commenced in this Court more than 28 days after the RRT decision would fall foul of s 478(1)(b) of the Migration Act, but the later proceedings could be instituted in the High Court.) An already frequently protracted process (exacerbated by the "bifurcated" system of judicial review of migration decisions flowing from Part 8 of the Migration Act) would become even more protracted. Doubtless the Court would retain a discretion to refuse relief, for example by reason of delay, but that discretion would not relieve the Court from the obligation to consider any fresh claim on its merits.

52 Mr Killalea supported this aspect of his argument by reference to Stuart v Sanderson. There, Madgwick J applied the special circumstances exception to the Anshun principle to a second application for judicial review of an administrative decision. The decision had been made by an army reviewing authority and had upheld the applicant's convictions for certain offences under the Defence Forces Discipline Act 1982 (Cth). Madgwick J drew an analogy with the criminal law, where Anshun estoppel does not apply so as to prevent an accused person offering a defence to a criminal charge. It is enough to say that the circumstances of this case are different from those that persuaded Madgwick J to exercise his discretion in favour of the applicant in Stuart v Sanderson. For example, the present case does not involve the application of the criminal law or of criminal sanctions, notwithstanding the possible serious consequences for the applicant flowing from the rejection of his claim to a protection visa.

53 The second matter relied upon by Mr Killalea, in essence, repeats an argument I have already addressed. In my opinion, the decision in Fernando does not constitute "special circumstances" justifying a refusal not to apply the Anshun principle to the present case.

54 I also think that Mr Killalea's reliance on Yusuf is misplaced. I accept that there may be cases in which a significant change in the law, between the first and second proceedings, might constitute special circumstances for the purposes of the Anshun principle. So much appears to have been acknowledged by the Full Court in Bryant v Commonwealth Bank, in its discussion (at 298) of the decision of the Court of Appeal in Arnold v National Westminster Bank Plc [1990] Ch 573. But, as I explain later, Yusuf did not address the critical question requiring resolution in the remitted proceedings, namely whether s 476(2)(b) of the Migration Act precludes the jurisdictional unreasonableness argument being entertained in this Court. And, as I have pointed out, the only relevant development in the law that has occurred since the Part 8 proceedings were resolved has been the decision of the Full Court in Gamaethige, which is unfavourable to the applicant's case.

55 Finally, I think it is difficult to give much weight to what is said to be the "meritorious" nature of the argument which the applicant wishes to put in these proceedings. The very point of the Anshun principle is to shut out a litigant from pursuing claims that might indeed have some "merit", at least if the failure to raise the argument in earlier proceedings was unreasonable. It would be curious if an appellant were to be precluded from relying on a cause of action only after the Court had considered whether the cause of action was meritorious. In any event, as I shall explain, on the current state of the authorities, the jurisdictional unreasonableness argument is not likely to succeed in this Court, even if it were accepted that the RRT's findings were affected by unreasonableness in the relevant sense. It may be that the High Court, in due course, can be persuaded to revisit the issues dealt with in Gamaethige, notwithstanding that a new statutory regime has now come into force. But that possibility does not mean that, on the existing state of the authorities, the applicant's argument can be regarded as "meritorious".

56 I have considered the matters said by Mr Killalea to constitute special circumstances, both individually and collectively. Having regard to the nature of the argument now sought to be advanced and its close relationship to the issue in the Part 8 proceedings, I do not think I would be justified in declining to apply the Anshun principle to the circumstances of this case.

Anshun Principle Applies

57 It follows from what I have said that the Anshun principle applies in the remitted proceedings to preclude the applicant from pursuing the cause of action founded upon jurisdictional unreasonableness.

AM I BOUND IN ANY EVENT TO DISMISS THE PROCEEDINGS?

58 In view of the conclusion I have reached, it is not strictly necessary to consider the Minister's submission that I am bound, in any event, by the decision of the Full Court in Gamaethige v Minister to dismiss the remitted proceedings. The submission was, however, fully debated. Moreover, Mr Killalea ultimately accepted, subject to one argument only faintly put, that I am indeed bound by the Full Court's decision to dismiss the proceedings. Both for this reason and the fact that the construction of s 476(2)(b) of the Migration Act was raised in the argument concerning the Anshun principle, I think I should address the issue.

59 The meaning of s 485(3) of the Migration Act, when applied to a matter remitted to this Court from the High Court, is not self-evident. The view has been expressed in the High Court and in this Court, however, that

"the word `powers' in s 485(3)...include[s] the grounds upon which the Court is able to review a decision of the Tribunal and not merely the form of relief which may be granted...":

see Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1998] HCA 16; (1998) 152 ALR 177, at 180, per Gummow J; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, at 522, 534, per Gleeson CJ and McHugh J, at 550, per Gaudron J (dissenting, but on other grounds); at 574-575, per Gummow and Hayne JJ (also dissenting, but on other grounds); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, at 411, per McHugh J; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14, at 40, per Mansfield J. It seems to follow that when a matter is involving judicial review of a decision of the RRT is remitted by the High Court to this Court pursuant to s 44(2) of the Judiciary Act, the Court can grant relief only if a ground of review available under s 476 of the Migration Act is established. Certainly the argument in the remitted proceedings was conducted on the basis that this is the effect of ss 476 and 485 of the Migration Act.

60 In Gamaethige, which was decided by the Full Court on 21 May 2001, the appellant advanced an argument of jurisdictional unreasonableness founded on Gummow J's reasoning in Eshetu. The argument had not been put at first instance: see at 73. A majority of the Full Court (Hill and Stone JJ, Finkelstein J dissenting) rejected the argument. Hill J expressly agreed with Stone J's conclusions and reasoning (at 60), although he added some additional comments. It is convenient to set out her Honour's reasoning at length (at 78-80):

"In summary, the argument was that s 65 requires the Minister to grant a visa if the criteria set out in the section have been met and, if not so satisfied, to refuse it. If the Minister's decision to grant or not to grant a visa is made on the basis of irrational or illogical reasoning then the decision made is not in conformity with the requirements of the Act and there is a jurisdictional error. Jurisdictional error is a ground of review under s 476(1)(b) and (c). Section 476(1), however, operates subject to s 476(2)(b), which provides that it is not a ground of review under subsection (1) that the decision involved an exercise of power so unreasonable that no reasonable person could have so exercised the power.

Gummow J did not accept that the limitation on judicial review posed by s 476(2)(b) applied in these circumstances commenting at [154] that:

`... where the question is whether the Minister was obliged by s 65 to grant a protection visa upon satisfaction the applicant met the criterion under s 36(2) for a protection visa, `Wednesbury unreasonableness' does not enter the picture. Rather, the question would appear to be whether the Minister did not have jurisdiction to make the decision (s 476(1)(b)), the decision was not authorised by the Act (s 476(1)(c)), the decision involved an error of law (s 476 (1)(e)) or there was no evidence or other material to justify the making of the decision (s 476(1)(g) as amplified by s 476(4)). The exclusion by s 476(2)(b) of `Wednesbury unreasonableness' would not be material.'

Mr Beech-Jones pointed out that his Honour did not limit his comments to circumstances where a positive opinion was formed under s 65 but applied his test of judicial review to the reasoning of the Tribunal in Eshetu itself which involved the refusal of a protection visa.

Mr Gageler, counsel for the respondent, pointed out that Gummow J's comments on this point were obiter, were not joined in by other members of the Court and were acknowledged by Gummow J at [129] to be provisional and not based on detailed submissions. However Mr Beech-Jones submitted that this analysis of jurisdictional error was endorsed by the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [34]; footnote 57. Relevantly, this case concerned s 35(3) of the Development Act 1993 (SA) which provided that in certain circumstances a provisional development plan consent must not be granted without the concurrence of certain authorities. In the text accompanying footnote 57, their Honours made the following comment:

`Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs ... further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker (57).'

As well as referring to Eshetu, the footnote refers, without distinction, to a number of other cases including R v Connell; Ex parte Hetton Bellbird Collieries Ltd [No 2] [1944] HCA 42; (1944) 69 CLR 407 at 430, 432, Foley v Padley [1984] HCA 50; (1984) 154 CLR 349 at 369-377 and Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119. These references indicate that the footnote is an endorsement of Gummow J's analysis of jurisdictional error. However, taken in context, there is no reason to read the footnote as endorsing all aspects of Gummow J's views in Eshetu. In particular, the reference would need to be a much more specific one to be read as endorsing the view that s 476(2)(b) relates only to the review of discretionary powers - that is, only to review on the basis of Wednesbury unreasonableness.

While s 476(2)(b) certainly uses the language of Wednesbury unreasonableness, as a matter of the ordinary principles of statutory construction there is no justification for confining it to those principles. When one considers the provisions of the Act which govern judicial review, it is clear that the legislature intended such review to be limited; see also the explanatory memorandum which accompanied the Migration Reform Bill 1992 (Cth). In this context, it is not appropriate to limit the effect of the restriction imposed by s 476(2) by seeking to graft it onto common law stock. I see no reason to give the words of s 476(2)(b) a meaning other than their conventional meaning or to be unduly technical in their interpretation. In this regard, I agree with the comments of Madgwick J in Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 436 at [30]. His Honour made the point that s 476(2) specifically excludes as a ground of review the question of whether a decision is so unreasonable that no reasonable authority could have made it. His Honour continued:

`It makes no difference that the decision turned upon a power to arrive at a jurisdictional fact. Parliament may, in general, by a suitably framed law, validly exclude from judicial review, other than a constitutionally granted power of judicial review, non-Constitutional "jurisdictional facts" ... While privative clauses should be jealously construed, it is clear from the terms of s 476(2)(a) and (b) that judicial review by the Federal Court on the grounds of natural justice or unreasonableness is not available. A denial of natural justice would ordinarily be a jurisdictional error. It would be strange if the supposed unreasonableness, going to a jurisdictional fact, but not natural justice, was outside the exclusion for review affected by subs (2)'

Mr Beech-Jones also suggested that s 476(2)(b) did not apply to the formation of an opinion under s 65 because the formation of an opinion is not the exercise of a power. I do not accept this argument. Section 476(2)(b) refers to a decision that "involved an exercise of a power" that was unreasonable. The failure to be satisfied that the relevant criteria for the grant of a visa were met is a necessary precondition to the decision not to grant the visa and is therefore "involved" in the decision."

61 In my view, it is part of the ratio decidendi of the majority in Gamaethige that s 476(2)(b) of the Migration Act precludes an applicant for judicial review of a decision of the RRT relying on jurisdictional unreasonableness in this Court. As I have explained, it was common ground in the present case that if s 476(2)(b) had this effect, it prevented the applicant relying on jurisdictional unreasonableness in a matter remitted to this Court by the High Court. Unless and until a later decision of a Full Court or the High Court overrules or disapproves the decision in Gamaethige, I am bound to follow it. Subject to what follows, Mr Killalea accepted that this was the correct position.

62 Mr Killalea submitted, somewhat faintly, that the decision of the High Court in Yusuf v Minister had undercut the authority of Gamaethige. In Yusuf, decided only ten days after Gamaethige, the joint judgment (McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed) addressed important questions of construction of s 476 of the Migration Act. In particular, their Honours held that the ground of review identified in s 476(1)(b) of the Migration Act is apt to embrace "jurisdictional error" as understood under the general law. The only reference to s 476(2) in the joint judgment, however, is the observation (at 21) that the sub-section is cast in general terms and is, therefore, in contrast to the exclusion in s 476(3) and (4), to be read as qualifying the whole of s 476(1). No issue of jurisdictional unreasonableness arose for decision in Yusuf and nothing was said about the effect of s 476(2)(b) on such a claim. In my view, there is nothing in Yusuf that affects the authority of Gamaethige so far as a single Judge of this Court is concerned. If that decision is to be challenged, the challenge must be made to the Full Court or the High Court.

63 It follows that, independently of the Anshun principle, the proceedings, insofar as they have been remitted to this Court, must be dismissed.

JURISDICTIONAL UNREASONABLENESS

64 Having regard to the conclusions I have reached, it is not necessary for me to address the question of whether the decision of the RRT was affected by jurisdictional unreasonableness. Indeed, having held that the applicant is precluded from raising that question in the present proceedings and that, in any event, I am bound by Gamaethige to dismiss the proceedings, it is perhaps inappropriate for me to attempt to resolve the question. Nonetheless, there are three comments I wish to make.

65 First, the borderline between judicial review on the merits (which is forbidden) and consideration of whether a finding as to a jurisdictional fact is unreasonable in the relevant sense (which is permissible) may be very difficult to identify.

66 Secondly, as Gummow J observed in Eshetu (at 654):

"Where the criterion of which the [decision]-maker is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question".

67 Thirdly, despite the first two comments, the contention that the RRT's decision was affected by what I have described as jurisdictional unreasonableness has some force. The RRT's reasons, with respect, are difficult to follow. The RRT clearly found that the applicant's brothers-in-law knew that he had converted to Islam. Although it is not entirely clear, it would seem that the RRT also found, or at least assumed, that the brothers-in-law knew of the applicant's reconversion to Christianity (after all, the RRT regarded him as "obviously" a Christian). Further, the RRT seems to have accepted that, if the local community in which the applicant lived became aware of his reconversion to Christianity, he would be at risk of retribution from the more extreme members of that community. Given that the RRT also found that the brothers-in-law had taken steps to inflict harm on the applicant, the obvious risk to which the applicant was exposed (on the RRT's findings), was that the brothers-in-law would tell members of any community in which the applicant might choose to live that he had reconverted to Christianity from Islam. If they did so, they would of course be telling the truth.

68 The only reason given by the RRT for rejecting the possibility that the applicant would be harmed in consequence of the brothers-in-law revealing the fact of his conversion and reconversion is contained in the following passage:

"The Tribunal does not accept that this would cause the applicant any problems because he is so obviously a Christian. The Tribunal is not satisfied that anyone would take claims made by the applicant's brother[s]-in-law about him being an apostate seriously".

It is true, as Ms Abadee pointed out, that the RRT found that the applicant had remained in Pakistan for at least a year without encountering any apparent difficulty by reason of his reconversion. The RRT did not, however, explicitly find or suggest that this finding justified an inference that the brothers-in-law had lost interest in harassing the applicant or his family. Rather, the RRT appears to have accepted that the brothers-in-law might reveal the fact of the applicant's reconversion, but found that, if they did, they would not be believed. It was on that basis of the latter finding that the RRT apparently concluded that the applicant would not be at risk of persecution for reasons of religion.

69 The extract from the RRT's reasons reproduced in the previous paragraph seems to me to come close to a finding that was unsupported by any probative material or logical grounds. It is also arguable that the finding was one upon which the ultimate decision of the RRT was based. Because it is unnecessary to do so, I express no final view on these questions.

CONCLUSION

70 Mr Killalea did not dispute that if the Anshun principle applied to the remitted proceedings, the appropriate order was to dismiss the proceedings. The applicant must pay the Minister's costs.

I certify that the preceding seventy-(70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 4 December 2001

Counsel for the Applicant:	Mr R Killalea
Solicitor for the Applicant:	Ian Graham & Associates
Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	14 November 2001
Date of Judgment:	4 December 2001