M158 of 2004 v Minister for Immigration - [2006] FMCA 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M158 of 2004 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 326

MIGRATION – Refugee Review Tribunal – Res Judicata – parties entered into consent orders dismissing Federal Court proceedings – further litigation of issues prohibited – application dismissed.

Applicant A184 vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1076
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67

Applicant:

APPLICANT M158 OF 2004

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 801 of 2005

Judgment of:

Riethmuller FM

Hearing date:

1 March 2006

Date of Last Submission:

1 March 2006

Delivered at:

Melbourne

Delivered on:

1 March 2006

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Counsel for the Respondents:

Mr E.J.C. Heerey

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application filed on 8 September 2004 be dismissed.
The applicant pay the first respondent’s costs fixed at $6,500.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 801 of 2005

APPLICANT M158 OF 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondents

REASONS FOR JUDGMENT

(revised from transcript)

On 8 September 2004, the applicant brought an application in the High Court of Australia seeking constitutional writs with respect to a decision of the Refugee Review Tribunal dated 20 June 2003, affirming a decision of the delegate of the minister to refuse to grant a protection visa.
On 13 April 2005, Hayne J remitted the matter to the Federal Magistrates Court of Australia. On 14 October the applicant filed an amended application and contentions of fact and law. The application as currently framed seeks judicial review on five grounds as follows:
a)The tribunal failed to take into account relevant considerations and/or the integers of the applicant’s claim;
b)The tribunal failed to accord the applicant procedural fairness/natural justice;
c)The tribunal failed to assess the applicant’s claim of persecution on the grounds of imputed political opinion;
d)There was no probative material or logical grounds to support a rejection of the applicant’s claim that he was at risk of persecution because of his family; and
e)The tribunal failed to assess the “sur place” claim of the applicant.

BACKGROUND

The applicant is a 51‑year‑old male citizen of Turkey. He is of Kurdish ethnicity. The applicant lived in the Turkish controlled northern region of Cyprus from 1993 until he came to Australia. He has a wife and three children remaining in northern Cyprus.
On 20 November 2000, the applicant arrived in Australia. On 19 December 2000 he applied for a protection visa claiming fear of persecution in both Turkey and northern Cyprus by reason of his membership of a particular social group, ethnicity and imputed political opinions (as recounted by the tribunal).
On 30 August 2001, a delegate of the first respondent determined the applicant was not a person to whom Australia owed protection obligations and refused his application. He lodged a review of the delegate's decision with the Refugee Review Tribunal (“the tribunal”) on 24 September 2001. The tribunal heard the applicant orally on

20 May 2003 after a significant period leading up to the hearing where considerable evidence was placed before the tribunal, including 13 different reports from medical and counselling professionals.
Unfortunately in January 2003 the applicant was diagnosed with rectal cancer. In May of that year he had surgery to remove the tumour. Not long after his surgery, on 11 July 2003, the tribunal handed down its decision dated 20 June 2003 affirming the delegate's decision.
The tribunal’s failure to believe the applicant’s claims stemmed from its conclusion that the applicant was not a credible witness (at pages 11-12).
Evaluation of Evidence at Hearing
The applicant contradicted himself at the hearing in relation to several key aspects of his evidence. His evidence that he was required to report to police since 1994 because he was known to them and his name was found in a newspaper office is unpersuasive. As noted above, he gave wholly inconsistent accounts of the manner in which he was treated when he reported to police. Moreover, for the reasons indicated above, his claim to have written articles for newspapers was not convincing. More generally, his assertion that he was persecuted in Cyprus because of the association with his brother is not believable. This claim was advanced by the applicant after country information was put to him debunking key parts of his claim (that he was persecuted due to his involvement in protests) and appeared to be ‘made up’ by the applicant to fill a gap which was exposed in his story (see further below). This is highlighted by the unsatisfactory account of the mistreatment that he was subjected to while in Turkey. Given the applicant’s tendency to make extreme and exaggerated claims, it is most unlikely that if the applicant did experience electric shocks and beatings at the hands of police, he would not describe this as a form of torture.
Even allowing for the stress that the applicant was undergoing at the hearing and his heightened level of anxiety, the evidence provided by the applicant in relation to this part of his account - being targeted by authorities because of his link with his brother and newspaper editor - was so replete with contradictions and fantastic claims (in particular how he defeated airport security) that the only tenable assessment of this evidence is that it is not true. Thus, even if I accept that the applicant’s brother was killed in the circumstances he describes (and that his grandfather was hung by Attaturk), I do not accept that the applicant was subject to any mistreatment by authorities in Cyprus (or Turkey) as a result of his association with his brother (or more general family history). Moreover, I do not accept the other core claims which are related to this account; namely that the applicant was required to regularly report to police and that he wrote for (or had any involvement with) a newspaper or newspapers.
These matters aside, there remains the applicant’s ‘main’ claims that he had his foot broken and was detained and beaten for five days because of his involvement with demonstrations organized by right wing groups and a ‘pro-rights’ demonstration. In relation to these matters, the applicant’s evidence was once again at various points internally inconsistent or for other reasons demonstrably lacking in cogency. For example, it is unclear how he was aware that the driver of the car that ran over his foot was a police officer. This aspect of his evidence, however, was n tainted with the same degree of distortion and confusion as the claims detailed earlier. Nevertheless, this account lacks plausibility for another reason. It is entirely inconsistent with country information concerning the human rights situation in general and the treatment of Kurds in particular in Northern Cyprus.
After considering the applicant’s evidence, the tribunal considered country information about the treatment of Kurds in Northern Cyprus (at page 18).
I have extracted quite a lengthy excerpt of the latest country information report from the US Department of State in order to obtain an oven’ of the general human rights situation. This is particularly relevant given the dearth of evidence regarding the treatment of Kurds in Northern Cyprus (see below). Although the above report indicates that there is some room for improvement in relation to the observance of human rights of the citizens of Northern Cyprus, the overwhelming theme of the above report is that the citizens of Northern Cyprus enjoy a high level of fundamental freedoms. To the extent that some members of the community are mistreated by authorities, it is mainly Greek Cypriots. There are virtually no instances of summary killings or unexplained disappearances. There are some instances of police abusing their powers, in the form of detaining prisoners for longer periods than is appropriate or intimidating suspects. There are also some reports of police brutality against suspects. Reports of police misconduct of this nature, are unfortunately, common place in most countries - including most Western democracies. However, there are no reports of widespread or systematic mistreatment in form of beatings or torture by police in Northern Cyprus. Further, citizens enjoy basic freedoms, such as the freedom of speech, press and association.
In his submissions to the Tribunal, the applicant claimed that the Kurds in Northern Cyprus are mistreated in the same way as Kurds in Turkey. In response to this, the tribunal concluded at page 20:
The applicant’s claims that Kurds are mistreated in Northern Cyprus in the same manner as in Turkey is unconvincing. First, I do not accept that Kurds are systematically persecuted in Turkey. Secondly, in making the assessments regarding the observance of human rights abuses each region must be considered on its merits. To this end, despite the close connection between Turkey and Northern Cyprus, there remain key differences. The principal one being that, as is noted above, Northern Cyprus has its own ‘government’, in relation to which elections are held every five years. Moreover, the distinctiveness of the regions, as far as observance of human rights I concerned, is evidenced by the fact that human rights agencies prepare separate reports for the regions and make distinctly different observations about the regions (for example compare the US Department of State Country Information reports on the respective regions
In addressing the supporting material submitted by the applicant, the tribunal concluded at page 21:
I note that some of the material contained in the medical and psychological reports appears to be supportive of some of the applicant’s claims. However, there is no indication in any of these reports of any independent verification of the applicant’s claims (apart from the fact that the applicant has injuries to his foot and ear) and hence the reports merely document prior consistent statements made by applicant. Due to the ease with which prior consistent statements are made and their self-serving nature I do not find the claims made by the applicant in these reports to be persuasive. While I accept that the applicant has signs of trauma to his foot and problems with his ear the medical reports do not provide any independent evidence concerning the cause of those injuries. Similar considerations apply in relation to the anxiety and depression suffered by the applicant which is disclosed in the psychological reports — there are any number of events which may have triggered these problems and the information in the reports does not persuade me that it was related to persecution experienced by the applicant in Turkey or Northern Cyprus.
Following the decision, the applicant applied for judicial review of the tribunal decision in the Federal Court of Australia by way of an application filed 30 July 2003. That application sets out, in substance, all of the main possible bases upon which one could seek judicial review of a decision of the tribunal. The application appears to have been a pro forma of some form and prepared by a lawyer or a person with legal knowledge, although filed by the applicant personally, given its layout and type style. It does, however, omit to provide any particulars that would show that it in fact relates to the facts and circumstances of the applicant's case. Indeed, the only thing about the application that indicates some connection with the applicant's case is his name at the top and his name as the person who filed it.
The applicant later agreed with the minister for the application to be dismissed by consent with an order for costs. These orders were made by consent by a judge of the Federal Court on 6 November 2003. There is no suggestion that the judge of the Federal Court, when making the orders by consent, had any information before him to indicate that they were anything other than genuine consent orders appropriately dismissing the matter.
The applicant then commenced proceedings in the High Court. In these proceedings on their remission to this court the applicant relies upon an affidavit in support. This affidavit sets out the medical difficulties that he was suffering as recounted above. I note in passing at this point that the counsel acting for the applicant quite properly and carefully has obtained additional evidence from the medical professionals involved in that treatment of the applicant to independently confirm this part of the applicant's version of events. The minister does not challenge that part of the facts, no doubt in large part because of the additional evidence obtained by the applicant's counsel.
With respect to the actual consent order, the applicant sets out the following in his affidavit sworn 23 March 2005:
[14] I understood that I had to file an application with the court to review the Tribunal’s decision, within 28 days. I did not have a lawyer at that time. My application was filed on 30 July 2003.
[15] After I filed my application in the Federal Court I continued to feel very sick. I was tired all the time and had to sleep many hours each day.
[16] Because of my sickness I was not able to continue with my claim in the Federal Court. I did not have the energy to attend the proceedings myself and felt tired and confused.
[17] I did not have a lawyer to represent me in the Federal Court. Legal Aid told me that I would have to find my own lawyer, which I could not do because I did not have the money to pay a lawyer.
[18] I was very anxious and depressed during this time.
[19] In October 2003 I telephoned the lawyers for the department of Immigration and told them that I could not continue with my case in the federal court. Shortly after that they sent me some documents to sign. On 6 November 2003 the federal court made orders dismissing my claim.
[20] In late 2003 I went to the Asylum Seeker Resource Centre to see if I could do anything further about my case. They suggested that I make an application to the Minister, which I filed on 2 December 2003. The Minister refused my application on 20 August 2004.
[21] On 8 September 2004 I filed my claim in this court, for a review of the decision of the Refugee Review Tribunal.
[22] This is my last legal avenue and if my appeal is struck out I will face deportation within the next 8 weeks and fear for my life if I am returned to my country. My brother was murdered by the Turkish government and fear the same will happen to me. I ask that the court allows my case to be heard by the Federal Court.
[23] I have prepared this affidavit with the help of Mehmet Altun, who speaks both Turkish (my language) and English. Mehmet has read this document.

Res Judicata

The Minister opposes the application on the basis that the issues have been determined and that a res judicata has arisen as a result of the consent orders that were made by the parties in the Federal Court proceedings. It is clear that consent orders of parties can and often are sufficient to give rise to a res judicata as they effectively dispose of the issues between the parties.
It appears to me, however, that in cases where it is not entirely obvious on the terms of the order whether it was a discontinuance of proceedings in substance or a determination of the issues as between the parties, one must look at the surrounding circumstances. A strong factor will necessarily be the form of the orders. In this case they are orders for dismissal rather than leave to discontinue or orders allowing the case to be discontinued. Such an approach of looking at the substance of the orders was adopted by Lander J in Applicant A184 vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1076, where his Honour said:
[112]    In this case, the dismissal of the application before Hely J did not establish any fact or point of law. All it established was that the applicant, for unascertained reasons, did not attend before the Court. It might be that he did not receive notice of the hearing. He was not present when the matter was set down.
[113]    This is not the same as a defendant who allows judgment to be entered against him because a defence was not entered. That might indicate a consent or acquiescence. This was simply an order entered for an undisclosed failure to attend a hearing of which the applicant might or might not have had notice. In my opinion, it would not be appropriate to decide this application adversely to the applicant on this ground. The applicant was unrepresented and the claim of res judicata was not brought to his attention until submissions were made. That is not said critically of the respondent. However, neither party adduced any evidence to explain the failure of the applicant to attend before Hely J. It may be that there was relevant evidence which would have assisted in determining whether Hely J’s order should be thought to support a claim of res judicata.
[114]    Because the matter has not been fully argued, this application is not the appropriate vehicle to decide the status of Hely J’s order. This application should not be dismissed on that ground.
Here, despite the form of the orders on their face appearing to be strong evidence of parties agreeing as to the disposal of the substantive issues, the applicant was, at that time, unrepresented and did not draw these documents himself, the documents having been prepared and forwarded by the minister's lawyer for him to sign and lodge.
Importantly, however, the applicant does not say in his affidavit that he understood this process to be one of him simply abandoning or discontinuing his present court proceedings, rather than reaching agreement that his rights to make such claims would be dismissed. I also note that the applicant, it seems very soon after this event, attended upon the Asylum Seeker Resource Centre to see what assistance they could provide to him, and then proceeded to adopt a different method of pursuing his desires to stay within Australia by way of making an application to the Minister. After that application was dismissed, the applicant then commenced these proceedings.
It appears to me from the facts and circumstances of the present case that the substantive issues were determined by the applicant and the Minister in the previous proceedings and therefore a res judicata would arise prohibiting further litigation of the issues in this court. To the extent that the applicant's counsel sought to establish that the issues raised in these proceedings are in some way different to those raised in the previous proceedings, I reject such an argument having regard to the very real width of the application made in the previous proceedings.
To the extent that there may be some form of discretion on the part of the court in special circumstances to go behind a res judicata (which I do not accept) I do not see that on the facts and circumstances of this case the applicant would be able to establish that such a discretion ought to be exercised.
However, should I be wrong in this regard, it is appropriate that I also go on to consider the substance of the applicant's claim, given that I have heard argument on these issues in any event.

Extension of time

The next issue that would arise is whether or not the applicant requires and ought to be granted an extension of time, given that his application in the High Court was well outside the time provided for in the rules. There are a number of considerations that would be relevant and some discussion of this issue can be found in Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 per McHugh J at [16]-[17].

A matter that will always be significant is the strength of the actual claim by the applicant. In this case I therefore turn to consider the substantive claim on the grounds that were put forward.
The first ground put forward was that the tribunal failed to take into account a relevant consideration and/or an integer of the applicant's claims. The ground is in substance a double-barrelled one in that there are two different issues to be determined. Firstly, whether or not relevant considerations were not taken into account; and, secondly, whether or not an integer of the claim itself was not considered and determined.
The claim with respect to the failure to take into account relevant considerations focuses upon a report prepared by a social worker, Ms Felicity Rousseaux of the Victorian Foundation for Survivors of Torture Inc. The report is described as a psychosocial report and prepared by a social worker. The report is lengthy and detailed. The report, however, in substance recounts what the applicant told the social worker and therefore does not of itself offer independent evidence in support of the applicant's claim.
This aspect of the report was clearly identified by the tribunal at page 21 of its judgment as is apparent from the quote set out above at [10]. In the context of this case, where there are a large number of medical reports, many of which it seems are of a similar nature to this one in that they rely almost entirely upon the version of events given by the applicant. I am not satisfied that they are of such significance that they require independent and particularised discussion by the tribunal member in providing reasons for the decision.
To a limited extent, however, the tribunal appears to have erred in its fact‑finding. At page 11 of the decision the tribunal sets out its evaluation of the applicant at the hearing. Importantly, the tribunal appears to make a finding to the effect that the applicant had engaged in a form of recent invention, what it described as making up a part of the claim to fill a gap exposed during the hearing. This does not sit well with the material recounted by Miss Rousseaux in her report. In substance the outcome must be the fact that Miss Rousseaux aware of the disputed claim in order to recount it in her report, before the hearing took place. This indicates that it was not a recent invention, as appears to have been the thinking of the tribunal at the time of preparing its reasons.
The applicant's counsel has, in some detail in her written submissions, identified other points of fact at which the applicant takes issue with the findings of the tribunal and with respect to some of the particulars or specific events referred to by the applicant in the material which did not receive explicit discussion by the tribunal in its decision.
It is notable that the decision rests overwhelmingly on a finding against the applicant on questions of credit for a very large number of reasons discussed by the tribunal in its decision. It is also notable that the decision was based upon an acceptance of country information and the absence of any country information to support the applicant in the version of events that he was giving. To the extent that there was some evidence of a previous consistent statement by the applicant in the social worker's report, it was but one small part of a large number of findings overwhelmingly against the applicant. It appears to me that this is more in the category of an error of fact by the tribunal rather than an error of law in failing to have regard to material before it, or failing to have regard to relevant considerations. When read as a whole I am not satisfied that this amounts to a ground for judicial review in the context of this particular case.
Similarly, to the extent that the tribunal did not deal with every particular of events that the applicant relied upon over a lengthy period, it does not appear to me that this is a failure to have regard to the applicant's case, but the natural consequences of a decision‑maker condensing into 21 pages a very large amount of factual material so as to produce a decision that is readable and addresses the main issues of the applicant's claim.
The ground also relates to whether or not there were integers of the applicant’s claim that were not considered. The thrust of the applicant's claim was that he was persecuted as a result of being a member of a Kurdish family and having an imputed political opinion. Counsel referred to aspects of the applicant’s evidence that the authorities had thought persons other than his brother had attended upon him and conceivably had imputed to him a political opinion in this regard. The tribunal, no doubt as a result of the hearing process before it, focused heavily upon the claim with respect to the applicant's brother. It does not appear to me that these matters are an integer of the applicant's claim but rather particulars or incidents of the claim put forward by the applicant and dealt with by the tribunal.
The second ground was whether or not the tribunal had failed to accord the applicant procedural fairness. However, the particulars relied upon in this regard are the same as the matters referred to above.
The third ground was the claim that the tribunal had failed to assess the applicant's claim of persecution on the grounds of imputed political opinion, and similarly discussed above.
The fourth ground raised was a complaint with respect to the fact‑finding of the tribunal at page 12 of their decision when the member said:
Even allowing for the stress that the applicant was undergoing at the hearing and his heightened level of anxiety, the evidence provided by the applicant in relation to this part of his account - being targeted by authorities because of his link with his brother and newspaper editor - was so replete with contradictions and fantastic claims (in particular how he defeated airport security) that the only tenable assessment of this evidence is that it is not true. Thus, even if I accept that the applicant’s brother was killed in the circumstances he describes (and that his grandfather was hung by Attaturk), I do not accept that the applicant was subject to any mistreatment by authorities in Cyprus (or Turkey) as a result of his association with his brother (or more general family history). Moreover, I do not accept the other core claims which are related to this account; namely that the applicant was required to regularly report to police and that he wrote for (or had any involvement with) a newspaper or newspapers.
It appears to me that the facts as found in that paragraph were open to the tribunal on the material before it. It is findings of this type that a tribunal is regularly called upon to make in a case such as this. It is the role of a decision‑maker at first instance, par excellence, to determine whether or not a person ought to be believed and to identify whether there appears to be contradictions within a claim. It is lightly interfered with even on a rehearing.
The final ground relied upon was a claim that there was a sur place claim raised by the applicant in his material. The court was referred to documents in the court book at pages 129, 131, 189 and 301. The substance of the claim was that the applicant was concerned for the safety of his family as a result of him seeking a protection visa in Australia. It appears to me that this is simply an incident of the claims that the tribunal were determining and if it was concluded that the applicant did not succeed on those claims then to the extent that he claimed that there was discrimination and persecution because of his application for a protection visa, it rose or fell with the main claim.
The material does not appear to indicate any claim that the authorities in Turkey would persecute the applicant as a result of him simply applying for a protection visa. This claim is somewhat outside the more usual style of sur place claims where a person who has applied for a protection visa has participated in activities since leaving their country of origin, such as active political demonstrations, the result of which, on its own, would bring about adverse interest from the country of origin.
In the circumstances I am not satisfied that in the context of this case this would amount to a basis for judicial review.
In all the circumstances of the case I am not satisfied on the substantive issues the applicant has a claim for judicial review that could succeed.
Having, in substance, determined the substantive issues, the determination of the question of whether an extension of time ought to be granted becomes more straightforward in that I now conclude that the applicant would fail in the substantive claim and therefore I ought not grant an extension of time.
In the circumstances I therefore refuse the current application for judicial review.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: