Res judicata & Ashtun estoppel: is judicial review the “cause of action”?

Federal Court. In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata or Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"? Was the Tribunal entitled to consider an ITOA and its conclusion for the purpose of s 501CA(4)? Was Tribunal required to be satisfied of Art 1C of the Convention?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: In the context of assessing whether it is in the interests of the administration of justice to grant an extension of time within which to file a judicial review application, is the re-litigation of challenges to an administrative decision generally seen as contrary to those interests?

Question 2: Is it "seldom in the interests of the administration of justice that the unlawful exercise of a public power adversely affecting the fundamental rights of an individual, including their liberty, be permitted to remain effective"?

Question 3: In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented by the principles of res judicata determined by treating judicial review as a whole as the relevant "cause of action"?

Question 4: If the answer to question 3 is 'no', is it necessarily the case that every "ground" of judicial review is properly characterised as a distinct "cause of action"?

Question 5: Is the answer to Question 4 is 'yes', should courts nevertheless "lean towards regarding each [claim] as founding a separate legal claim for relief and therefore as constituting a separate cause of action"?

Question 6: Can it be said that the Anshun estoppel 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”"?

Question 7: Is the Anshun principle subject to a "special circumstances" exception?

Question 8: Is the answer to Question 7 is 'yes', can it be said 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"?

Question 9: In circumstances where a judicial review applicant previously brought judicial review proceedings against the same administrative decision in question, is the question of whether the subsequent application is prevented from proceeding by reason of an Anshun estoppel determined by treating judicial review as a whole as the relevant "cause of action"?

Question 10: If the FCA grants an extension of time and finds special circumstances justifying the non-application of the Anshun principle, would it be appropriate for it to then find the proceeding to be an abuse of process?

Question 11: In determining pursuant to s 501CA(4) of the Migration Act 1958 (Cth) whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, was the Tribunal entitled to give due consideration to the analysis in the International Treaties Obligations Assessment (ITOA) and to its conclusion?

Question 12: If the answer to Question 11 is 'yes', can the Tribunal abdicate the task under s 501CA(4) of the Migration Act 1958 (Cth) of determining whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa to the ITOA's assessor?

Question 13: If the answer to Question 11 is 'yes', would it be open to the Tribunal to place considerable weight on the ITOA in the absence of any challenge to its contents by the Applicant before the Tribunal, despite the fact that the Applicant was self-represented before the Tribunal?

Question 14: Art 1C of the Refugee Convention provided for the circumstances in which non-refoulement obligations ceased, for instance: "He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality" (Art 1C(5)). In the context of assessing Australia’s non-refoulement obligations for the purposes of determining pursuant to s 501CA(4) of the Migration Act 1958 (Cth) whether there was "another reason" for revoking the mandatory cancellation of the Applicant's visa, was that assessment "to be approached from the perspective that the Minister had to establish, or ... that the Tribunal had to be satisfied, that there had been changes of circumstances in [the Applicant's home country] that were both fundamental and durable so as to engage Art 1C"?

The FCA answered those questions as follows:

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