Case: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
Outcome: referred to
In support of their submissions in this regard, the appellants referred to BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 (" BC ") at [31] and [38]. Counsel for the appellants expanded on this submission in oral argument. He contended that it was clear from Weinberg J's ex tempore reasons that the appellants, who were then unrepresented, had a very limited grasp of the relevant law. Counsel also referred to the statement by the first appellant that had been made in June 1996. He submitted that, if believed, the appellants' case was at the severe part of the "life and liberty" spectrum and the first factor should be given particular weight. He further argued that had the inconsistencies in question been put to the appellants and explained to the Tribunal's satisfaction, then the Tribunal might have reached a different decision. These factors cancelled out the delay factor, so counsel said. Counsel for the appellant also argued that if a court came to consider the substantive grounds of the present application, then these grounds had reasonable prospects of success. The appellants contended that, if they succeeded, then the appropriate course was for the Court to remit the matter to consider the substantive grounds of the application for relief (i.e., that the Tribunal's decision was affected by jurisdictional error and should be set aside by reason of denial of procedural fairness). 11 In their submissions of 2 December 2005, the appellants also sought to raise as a new ground of appeal, whether Anshun estoppel does not apply as against at least the second appellant because her application was not heard on remitter of the prior proceeding. In written submissions filed in June 2006, the appellants abandoned this ground. 12 The first respondent opposed any grant of leave to the appellants permitting them to rely on the 15 June 2006 affidavit. 14 There was, so the first respondent submitted, no error in his Honour's exercise of discretion and BC was distinguishable from the appellants' case. Further, so the first respondent submitted, lack of representation cannot by itself amount to a special circumstance that would warrant an exercise of discretion in the appellants' favour. The first respondent accepted as relevant the likelihood that relief would follow any finding that the appellants had made out their procedural fairness ground. The first respondent submitted, however, that it was unlikely that a court would grant them the ultimate relief they sought, amongst other reasons, because of "an inordinate and unexplained delay in commencing proceedings". In any case, so the first respondent said, the appellants' procedural fairness argument was without merit, because the rules of procedural fairness did not require the Tribunal to disclose to the appellants that it intended to act on information of which they were or should have been aware. Further, the Tribunal was not obliged to notify the appellants of its mental processes or provide it with an opportunity to comment on preliminary findings before making its decision. The first respondent added: "The Tribunal was not required to make the appellants' case for them. The Tribunal was not obliged to notify the appellants of deficiencies in their case, in order to give them an opportunity to present further material or argument. In particular, the rule in Browne v Dunne had no application to the proceedings before Tribunal. There was also no general duty on the Tribunal to make inquiries to obtain further information from the applicants or some other source." 18 I accept the first respondent's submission that there is no error shown in his Honour's conclusion that Anshun estoppel applies to preclude the appellants from pursuing a further judicial review proceeding and, further, that the appellants have not established special circumstances to warrant a different conclusion. In BC, the Full Court had regard to the first two of the considerations relied on by the appellants, as set out at [9] above, in finding that there were special circumstances in that case. In BC , however, the Court observed that only marginal weight could attach to the fact that the first respondent is a "statutory respondent": see [38]. The Court gave greater weight to other factors, which included the "life and liberty" consideration (also relied on here), the "complex bifurcated process of review" and the then state of the authorities: see [31] and [38]. As the first respondent submitted (and the appellants did not deny) neither of the latter two matters were significant in this case. Furthermore, the appellants' reliance on the "life and liberty" consideration amounted to saying no more than his Honour should have afforded this consideration more weight than he did. 22 Accordingly, nothing has been established that discloses relevant error in his Honour's finding (as to which see BC at [30]) that in this case there were no special circumstances of the kind that would prevent the estoppel: compare Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [49], [61]-[64], [149].