Case: Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641
Outcome: considered
It does seem to me that, if the appellant could have made a case that he had a ground on which he could have sought to set aside the Tribunal's decision, which was a ground not available to him under the provisions of Pt 8 of the Migration Act , as they stood at the time of his application to this Court that was dealt with by North J, then he might still have been able to make an application to set aside the decision of the Tribunal at the time when he made his first application to the Federal Magistrates Court, and even at the time when he made his second. In my view, in the first of the federal magistrate's judgments, his Honour was wrong to regard the entire matter as being one of estoppel against the appellant from bringing any application on any ground in respect of the Tribunal's decision. For the reasons I have set out in Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 at [54] [71], it seems to me that it would have been open to the appellant to raise a ground that he could not have raised under the provisions of Pt 8 of the Migration Act as they stood at the time of his first application to the Court, because whatever grounds he raised before the High Court had not been the subject of judgment on the merits, and no estoppel was therefore raised in respect of them. It is true that there might be issues of Anshun estoppel, but these would have to be matters of argument. 23 I sought to ascertain from the appellant, in the course of argument, whether there was any substance in his allegation that the Tribunal had failed to provide him with copies of documents on which it relied, and had failed to give him an opportunity to comment on them. The affidavit with which his law clerk friend helped him did not identify those documents. Nor was the appellant able to identify to me any document used by the Tribunal, which affected the decision adversely to the appellant, and on which he was not given an opportunity to comment. I point out that, even if there were documents, such as the sources of information used by the Tribunal to ascertain the position in the Punjab, and in India generally, at the time of its decision, it would have been sufficient for the purposes of the principles of natural justice or procedural fairness for the Tribunal to have given the appellant an opportunity to comment on the substance of the information contained in those documents. It would be necessary to examine the transcript of the Tribunal's hearing to see whether this had in fact been done. All that can be said is that, if the appellant had been able to raise a case of denial of natural justice, or procedural fairness, that is not a ground on which he could have applied to this Court in 2000, when Pt 8 of the Migration Act contained provisions specifically barring this Court from examining Tribunal decisions on the basis of natural justice. It was not a ground on which there has been any final judgment of any court, and therefore, on the reasoning set out in the passage in Applicants M16 of 2004 , to which I have referred, it is a ground that would have been available to the appellant. It cannot be said that the appellant would succeed on it, because much more would need to be done. 24 So far as the argument today is concerned, the appellant has not indicated that he would have been able to make out a case with respect to any documents. As I have said, he has not been able to identify documents that affected the decision adversely to him, or about which he was given no opportunity to comment. The only view I can take, therefore, is that, as a matter of substance, the appellant has no ground available to him on which he could seek to set aside the Tribunal's decision. This is a powerful reason in itself for refusing him leave to appeal. 25 As to the appellant's complaints about the federal magistrate's judgment, there is not much to be said. He complains that the hearing in the Federal Magistrates Court was originally set for 22 June 2005, but was brought forward to 2 June. He does not indicate how this disadvantaged him. In answer to questions from me this morning, he indicated that he did not complain to the federal magistrate about the change of date, and did not allege that he was disadvantaged in the presentation of his case in the hearing before the federal magistrate, which apparently was conducted by telephone.