Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: applied
The present proceeding is an appeal from a judgment of the Federal Magistrates Court ('FMC') of 17 August 2005 dismissing the appellants' applications for review on the basis of Anshun estoppel. 2 The four appellants, who are citizens of Sri Lanka, applied for protection visas. The appellants are a husband and wife and their two children. The husband claimed to fear persecution by reason of his actual or imputed political opinion. The claims of the wife and the children are derivative, rather than independent claims, as they are dependent on a successful outcome of the husband's claim to refugee status. 3 The appellants' applications were refused by a delegate of the first respondent, and the Refugee Review Tribunal ('the RRT') affirmed that refusal. On 23 November 2001, the first appellant (the husband) filed an application in the Court seeking judicial review of the RRT's decision. 6 A notice of appeal from the decision of Marshall J was filed by the first appellant but was discontinued on 11 November 2002. On 4 November 2002, and prior to discontinuing the appeal, the appellants applied to the High Court for an order nisi for writs of certiorari, mandamus and prohibition. On 7 February 2003, the High Court remitted the matter to this Court. On 2 June 2004, North J transferred the proceeding to the FMC. On 17 August 2005, the FMC dismissed the application on the basis that Anshun estoppel as outlined in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (' Anshun ') prevented it from being pursued. 7 Before the FMC, the appellants relied on the following grounds of review: '(a) a breach of the rules of natural justice occurred in connection with the making of the Decision. (b) the Decision involved an error of law, whether or not the error appears on the record of the Decision. (c) procedures that were required by law to be observed in connection with the making of the Decision were not observed. (d) 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. (e) that there was no evidence or other material to justify the making of the Decision. (f) the Decision was otherwise contrary to law.' 8 The ground concerning natural justice, which is now the subject of this appeal, was not raised before Marshall J. The FMC found that: 'it was unreasonable for the applicants not to have advanced their full claim in the original proceedings before Marshall J in the Federal Court and that no "special circumstances" exist which would relieve the applicants of the ordinary operation of the Anshun rule. No material was before the Court to advance a case of "special circumstances" existing and there appears no reason for the issues raised in these proceedings not being raised in the earlier proceedings.' 12 I have carefully considered the detailed reasons for judgment of the FMC and am unable to find any error on its part. The procedural fairness ground of review now agitated by the appellants was a ground that was open to be raised, but was not raised, at the hearing before Marshall J. In my view the FMC has correctly applied Anshun estoppel in respect of the application for judicial review before it. 13 In any event, the procedural fairness ground is without merit. It is said to be based on the RRT failing to bring arguably adverse country information upon which it relied to the attention of the appellants. However, as was pointed out in the first respondent's written submissions, the appellants would have been aware of the information as it was considered in the delegate's decision and the substance of it had been raised at the hearing before the RRT. As the husband appellant's appeal has failed, it follows that the appeal of each of the other appellants must also be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 9 February 2006 For the Appellants: The Appellants appeared in person Counsel for the Respondent: H Riley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 February 2006 Date of Judgment: 3 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/40.html