An exception to the rule against re-litigation?

Federal Court: Applicant: unsuccessfully applied to FCA for judicial review and appealed to FCAFC; did not rely in those proceedings on the grounds relied on in Ibrahim; applied to the HCA for special leave to appeal the FCAFC's decision; made a fresh application to FCA for review of the same administrative decision while the special leave application was pending, but Registrar refused that application as an abuse of process; applied to FCA for order that Registrar accept his fresh application. Should the Anshun estoppel apply against the fresh application?

The following sequence of events is crucial:

  1. The Applicant's visa was cancelled under s 501BA(2) of the Migration Act 1958 (Cth);
  2. The Applicant applied for judicial review of that decision to the Federal Court (FCA);
  3. The FCA dismissed that application;
  4. The Applicant appealed the FCA's decision to the Full Court of the FCA (FCAFC);
  5. On 18 April 2019, the FCAFC dismissed the appeal (the judicial review application and appeal described in items 2 to 5 will be referred to as the "first FCA application" in this article); 
  6. On 30 May 2019, the FCAFC handed down its decision in Ibrahim v Minister for Home Affairs [2019] FCAFC 89, where it upheld two grounds of judicial review against a decision made under s 501BA(2);
  7. The Applicant filed an application for special leave to the High Court (HCA) to appeal the FCAFC's decision;
  8. On 2 July 2019, the Applicant filed an application to the FCA (the fresh FCA application) for an extension of time, seeking to commence fresh judicial review proceedings against the Minister's decision that was the object of the proceedings described in items 2 to 5 above;
  9. On 11 July 2019, the FCA's Registrar refused, pursuant to r 2.26 of the Federal Court Rules (FCR), to accept the documents for filing of the fresh FCA application on the basis that it was satisfied that they were an abuse of process, as the Applicant had "exhausted all legal remedies for this decision and [could] not attempt to restart [his] same proceedings again in the [FCA]".
  10. "The applicant now brings this proceeding in which he seeks an order pursuant to r 3.04 of the Federal Court Rules 2011 (Cth) (FCR) that the Registrar accept for filing his application for an extension of time (and accompanying documents). Alternatively, the applicant seeks an order pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) quashing the decision of the Registrar not to accept his application for an extension of time for filing and an order directing the Registrar to accept that application for filing" (we will refer to this application as the "third FCA application").

The facts (i.e. the Minister's decision) in Ibrahim were "relatively identical" to the facts of the first FCA application and the fresh FCA application.

However, the Applicant did not, in the first FCA application or the special leave application, rely upon the grounds relied upon in Ibrahim, despite the fact that those grounds had been "technically available to him from the outset" and that he had been represented in the first FCA application and in the special leave application.

During the entirety of the fresh FCA proceedings, the Applicant was in immigration detention and the HCA had not determined the special leave application.

The questions to a single judge of the FCA in the fresh FCA application were as follows:

Question 1: Was the Registrar's decision wrong?

Question 2:

Background: "r 3.04 of the FCR ... permits a person to apply to the Court without notice for an order that a registrar do any act or thing that the registrar is required or entitled to do but has refused to do".

Question: If the answer to Question 1 is "yes", can the Registrar's decision be set aside under r 3.04 of the FCR, the ADJR Act or both?

Question 3: If the answer to Question 2 is "yes", is the third FCA application nevertheless premature and should it therefore be dismissed, given that the special leave application is pending before the HCA?

Question 4: If the answer to Question 3 is "no", does the FCA have the discretion to deny relief in the third FCA application, whether pursuant to r 3.04 of the FCR or under the ADJR Act?

Question 5:

Background: "The Anshun estoppel doctrine can apply to judicial review of administrative decisions: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242; 46 FCR 10 at [39] per Emmett, Conti and Selway JJ. An Anshun estoppel arises where the subject-matter sought to be raised is so relevant to the subject-matter in an earlier proceeding that it would have been unreasonable not to raise it in the earlier proceeding (Anshun at 598 and 602 per Gibbs CJ, Mason and Aickin JJ)".

Question: if the answer to Question 4 is "yes", should the FCA deny relief in the third FCA application?

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