M141 of 2004 v Minister for Immigration - [2006] FMCA 159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M141 of 2004 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 159

MIGRATION – application to review a decision of the Refugee Review Tribunal – res judicata and issue estoppel – no jurisdictional error – application dismissed.

Migration Act1958 (Cth)
Judiciary Act1903 (Cth)
Administrative Decisions (Judicial Review) Act1977

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
NATC v Minister for Immigration and Multicultural Affairs (2004) FCAFC 52
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002;
Appellant S106 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59;
NACB v Minister for Immigration and Multicultural Affairs (2003) FCAFC 235

Applicant:

APPLICANTS M141 OF 2004

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 780 of 2005

Judgment of:

Hartnett FM

Hearing date:

24 January 2006

Delivered at:

Melbourne

Delivered on:

24 January 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,000.
Certify for Counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 780 of 2005

APPLICANTS M141 OF 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the tribunal) handed down on 12 April 2003, made 27 March 2003, to refuse to grant a protection visa to the applicants. The applicants are husband and wife and their under-age children who are citizens of Pakistan. They arrived in Australia on 25 February 1998.
On 2 November 2001 the family members lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act1958 (Cth) (the Act).
On 19 March 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant protection class (XA) visas, and on 10 April 2002, the applicants applied for review of that decision. No specific Convention claims were made by or on behalf of the applicant wife or children. The fate of their application therefore depended on the outcome of their husband's and father's application. On 27 March 2003 the tribunal affirmed the delegate's decision. As the tribunal did not grant a protection visa to the applicant husband and father, his wife and children could not satisfy the alternative criterion set out in s.36(2)(b) of the Act and therefore could not be granted protection visas.
On 23 May 2003 the applicant made application to this court seeking an order to review the decision of the tribunal pursuant to s.39B of the Judiciary Act1903 and/or alternatively section 5 of the Administrative Decisions (Judicial Review) Act1977. That application was dismissed by consent orders made on 3 June 2004. The applicant contends that application, without his instructions, was withdrawn from the Federal Magistrates Court of Australia by his former solicitors on 1 June 2004 when they filed consent minutes dismissing the application. Orders were then pronounced on 3 June 2004.
On or about 23 July 2004 the applicant made an application for an order nisi for the writs of certiorari, mandamus and prohibition and an application for a declaration in the High Court in relation to the decision of the Tribunal.
On 13 April 2005 Hayne J remitted the application, including any application for an extension of time, to this court. The applicant deposed that the earlier consent orders made 3 June 2004 were made by the applicants' solicitors without authority. Thereafter the applicants' former solicitor, Mr Phillip Reid Dinning provided an affidavit sworn 21 September 2004 wherein he deposed that the applicant had instructed him to consent to the orders dismissing the previous judicial review proceedings.
It is not necessary in these proceedings to determine that factual dispute. The applicant has not taken any steps to have the consent orders of 3 June 2004 set aside and those orders have effect according to their terms.
I accept the first respondent's contentions that the dismissal of the earlier application by this court precludes the applicant from bringing fresh proceedings to challenge the tribunal's decision. The applicant is barred by the principles of res judicata. Any cause of action involved in this proceeding and as set out in the material filed by the applicant is in substance the same as that litigated in the earlier proceeding and has passed into judgment in that proceeding (Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, Merkel J).
In addition, the applicant is precluded as stated by Counsel for the first respondent by the principles of issue estoppel from reagitating:
a)Any matters necessarily decided by the dismissal of the earlier proceeding; or
b)Any matter which might have been brought forward as part of the earlier proceeding and which was so relevant to the subject matter of that proceeding that it would have been unreasonable not to rely on it (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
The issues sought to be raised by the applicant in this proceeding were raised or could have been raised in the earlier proceeding. The fact that the earlier litigation resulted in consent orders does not preclude the operation of the principles of res judicata and issue estoppel; that is there remains a bar to the litigation of the same issues between the same parties in subsequent litigation (Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 at 36-41). No new matter is raised by the applicant in this proceeding nor any matter that could not have been raised in the earlier proceeding.
The applicant requires an extension of time in relation to his application for the writs of certiorari and mandamus. Although the court has power to enlarge the relevant time periods, the court refuses to grant any extension. The delay in the bringing of the proceedings is not sufficiently explained by the applicant and nor does the application have any prospect of success. The tribunal's decision was not affected by jurisdictional error.
Each of the findings of the tribunal were open to it on the evidence before it. It is the tribunal's role to assess the credibility of an applicant and his or her claims ((re Minister; ex parte Durairajasingham (2000) 74 ALJR 405 at 417 (67) per McHugh J)).
The applicant was invited to give oral evidence to the tribunal and present arguments in support of his claims at a hearing on 17 March 2003. The applicant stated he feared that he and his family would face a risk of death or injury if they were to return to Pakistan. He said in a statement forwarded to the tribunal and after the delegate's decision had been made that although the family was Muslim, local Muslims did not accept the new arrivals and called them Muhajur (the term used to describe people who have migrated from India.) The applicant stated that Muhajurs lived under pressure, even though they were formerly Pakistani citizens.
In relation to the claims made by the applicant and the relevant findings of the tribunal, these were as follows:
At the heart of the applicant's claims is his evidence that an uncle and cousins were killed in 1976 or 1977. The applicant claims that the killers were from a big family opposed to Muhajurs but that they have never been apprehended in relation to the murder. He claims that these people want to kill him or take action against him to stifle his capacity to see that they could be charged with the murder.
I accept that the applicant's family members may have been killed as he has claimed, and I have thought carefully about the situation described by the applicant but I have concluded that what he has said about the grounds for his fear is not credible…….
The applicant's claim that it had to be the members of the enemy family because they had threatened those who were killed (and this is only his evidence) is hardly likely to be able to be verified today, some 25 years after the event, to a degree which could see people successfully prosecuted.
Second, I found far-fetched and most improbable the applicant's claim that the collision between his car and another in Islamabad in 1996 was actually a deliberate attempt to kill him by members of the enemy family. His account that he knew this to be so because members of the enemy family threatened him was not at all convincing ……..
Third, I found the applicant's efforts to bring the murderers to justice indicated that he had no capacity to influence the reopening of the murder case. Telling individual police in Islamabad about his suspicions of who was responsible would be very unlikely to have any effect, and he seemed to have little idea how he could see the case reopened.
I understand that the applicant's point was not that he in fact had such influence, but that the enemy family might have thought that he did, given his government position in Islamabad. But I find this difficult to reconcile with his evidence that the enemy family was big and not without influence itself, especially if one of them was a Major General in the Pakistani army. It seems to me that such a family would have known that in Pakistan a Major General in the army could wield more influence than an accountant in the Ministry of Foreign Affairs and would have known that a case which the applicant might have been able to see reopened could have been quickly closed again upon the intervention of a Major General.
Finally, I found the First Information Reports provided by the applicant at the time of the hearing very unconvincing .. there are aspects which have led me to the view that they have been concocted for the purpose of advancing the applicant's claim. I am unable to accept that three complainants all told the police that the cause of the enmity was the migration of the accused to Pakistan in 1947. It is in my view implausible that such similarity of wording would be used on three separate occasions and I consider it improbable that three separate complainants all link the incidents described and reported to the police to the migration of Muslims from India at the time of partition more than 50 years ago.
I also consider it completely implausible that a complainant would tell the police that they (the complainant) had threatened to murder a person in Australia and his children when they return to Pakistan.
The tribunal concluded that it did not consider that the essential and significant reason for what the applicant said he feared the enemy family may do to him was because he was a Muhajur. Rather it was to silence him from making accusations which could lead the enemy family to be charged with murder, a matter not, in the tribunal's view, accommodated by any of the reasons in the Refugees Convention.
Further the tribunal did not consider that there was a real chance that the applicant would experience serious harm for reason of him being a Muhajur if he were to return to Pakistan. The essential and significant reason for the difficulties he might face in resettling in his country concerned practical matters resulting from having lived away for a number of years and having given up his employment. The tribunal found the applicant's fear was not well-founded within the meaning of the Refugees Convention and was not satisfied that the applicant husband was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.
I find in the tribunal's reasoning nothing perverse or illogical.
I note the comments of Heerey, Sundberg and Crennan JJ in NATC v Minister for Immigration and Multicultural Affairs (2004) FCAFC 52 at 25-27 as applicable in this case.
It cannot be said that the tribunal's findings were not open, nor can it be said that the tribunal's lack of satisfaction in respect of the appellant's accounts constitutes illogical reasoning of the kind discussed In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002; Appellant S106 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; in any event, want of logic does not of itself suffice to constitute an error of law: NACB v Minister for Immigration and Multicultural Affairs (2003) FCAFC 235 at 30.
Accordingly the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Tracey Jones

Date: 24 January 2006