M175 of 2002 v Minister for Immigration
[2004] FMCA 550
•27 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M175 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 550 |
| MIGRATION – Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa – Migration Act 1958 (Cth) section 486A – application out of time – High Court Rules Order 55 rule 17; Order 60 rule 6 – earlier application brought under Part 8 Migration Act 1958 (Cth) dismissed – subsequent proceedings seeking relief under s.75(5) of the Constitution –– same cause of action relied upon in both proceedings – res judicata and issue estoppel – judicial review – RRT findings on credibility adverse to applicant – no reviewable error disclosed – privative clause decision – application dismissed. |
Migration Act 1958 (Cth)
High Court Rules 1952
Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 182
Applicant S422 of 2002 v The Minister [2004] FCAFC 89
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407
Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491
M111 of 2003 v The Minister [2004] FCAFC 97
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Somanader & Ors v Minister for Immigration and Multicultural Affairs & Anor [2000] FCA 1192
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054
Re Ruddock; Ex parte Reyes (2000) 177 ALR 484
| Applicants: | M175 of 2002 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ORS |
| File No: | MZ412 of 2003 |
| Delivered on: | 27 August 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 19 August 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicants: | Self-represented |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application be dismissed.
The applicants pay the costs of the first named respondent fixed in the sum of $6,500.00.
There be liberty to the applicants to apply by telephone mention to the Chambers of Hartnett FM on 8600 4481 as to the question of costs being greater than $4,680.80. Such application must be made within 14 days of service of the order upon the applicants.
The solicitors of the first name respondent serve a sealed copy of the order upon the applicants as soon as is practicable.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ412 of 2003
| M175 of 2002 |
Applicants
v
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ORS |
Respondents
REASONS FOR JUDGMENT
On 7 October 2002 the applicant applied to the High Court for writs of prohibition and certiorari in respect of a decision of the Refugee Review Tribunal handed down on 9 November 2001. On 7 February 2003 the matter was remitted to the Federal Court and on 22 April 2003 the matter was transferred to the Federal Magistrates Court for hearing. The matter proceeded to hearing on 19 August 2004. The applicant was assisted by an interpreter and appeared as a litigant-in-person.
The applicant is a Singhalese Sri Lankan. He arrived in Australia on 21 August 1999 with his wife and son. On 10 January 2000 they lodged an application for a protection visa. On 1 March 2000 a delegate of the respondent refused the application and an application for review was made by the applicant and lodged with the Refugee Review Tribunal ("the RRT") on 22 March 2001. The Tribunal affirmed the delegate's decision by a decision made on 19 October 2001 and handed down on 9 November 2001. Thereafter the applicants made application in the Federal Court to review that decision on
5 December 2001. That application for review was transferred to this Court and on 11 September 2002 that application was dismissed. The applicant did not appear.
Application is out of time
Section 486A of the Migration Act 1958 (Cth) ("the Act") provides that an application to the High Court for prohibition or certiorari in respect of a privative clause decision must be made within 35 days of the (actual) notification of the decision. The applicant was notified of the decision by letter date 9 November 2001 in accordance with s.430B(6) of the Act. Accordingly, the time period expired on or around 21 December 2001. The application filed on 7 October 2002 was therefore more than nine months out of time.
If the decision of the Tribunal is found to contain jurisdictional error such that it is not a privative clause decision, then that time limit as stated in s.486A of the Act will not apply (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 41 and 89). In my view the Tribunal's decision is free of jurisdictional error as shall be described hereafter and accordingly the time limit is of relevance.
Furthermore, even if there were a jurisdictional error such that the time limit in s.486A of the Act had no application the application for certiorari would still be out of time when looking to Order 55 rule 17(1) of the High Court Rules which provides:
An order nisi for a writ of certiorari to remove a judgment … shall not be granted unless the application for the order is made not later than six months after the date of the judgment ..
Order 60 rule 6 of the High Court Rules does provide that that time may be enlarged or abridged by a Court or Justice. The applicable principles were considered in relation to the enlarging of time for certiorari applications by McHugh J in Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 which are summarised succinctly in the respondent's contentions to be:
a)Whether the applicant has an arguable case.
b)The explanation for the delay and the length of the delay.
c)All the circumstances of the case, including:
i)The history of the matter
ii)The conduct of the parties
iii)The nature of the litigation
iv)The consequences for the parties of the grant or refusal of the extension.
The applicant provides no grounds for such an extension in his material. The need for an extension of time appears to be not considered nor the fact that an application in substantially the same terms has already been dismissed by this Court on 11 September 2002.
In Applicant S70 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 182 the Full Court said at page 815:
[T]here is a real question not yet answered as to whether the time limits under the High Court Rules are applicable to proceedings remitted to this Court: see Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89, at least where those proceedings do not themselves include an application to extend time or where the High Court has not directed that those limits remain applicable. Even if that were not the case, there is still the question of whether it is appropriate or necessary to obtain an extension of time in relation to certiorari or mandamus in circumstances where prohibition against the Minister may be a sufficient remedy: see Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 contrast Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488-489.
The question of time limits was again considered by the Full Court of the Federal Court in M111 of 2003 v The Minister [2004] FCAFC 97 wherein the Full Court noted at page 2:
For the purposes of this application it is unnecessary to resolve differences of views about the correct characterisation of rule 17 (Order 55 rule 17 of the High Court Rules refers to the seeking of judicial review within applicable time limits).
The resolution of this matter is not necessary for a proper consideration of this matter given my reasons.
There is no time limit on prohibition but the applicant has not sought mandamus and the remedies of certiorari and mandamus are necessary corollaries of prohibition. In any event delay in seeking such relief can be considered when exercising any discretion.
The earlier hearing
Federal Magistrate Connolly on 11 September 2002 dismissed the applicant's application for review which had been lodged initially in the Federal Court on 5 December 2001. Although that application was dismissed without a hearing, the present proceeding is barred by the principles of res judicata and cannot proceed. This is despite the application having earlier been dismissed without a hearing.
Merkel J in Somanader & Ors v Minister for Immigration and Multicultural Affairs & Anor (2000) FCA 1192 considered whether dismissal orders dismissing an applicant's earlier proceeding under Part 8 of the Act had disentitled the applicants in that case to the relief they sought by reason of res judicata or issue estoppel. He noted the doctrines of res judicata and issue estoppel had been held to apply to application for judicial review and that if res judicata applied there is no discretion in the Court to allow the proceeding to continue. He went on to say at page 688 at [45]:
In determining whether res judicata applies, the primary question is whether the cause of action in the latter proceeding is the same as that which was litigated in the former proceeding.
The question is whether the two proceedings, that is the earlier proceeding under Part 8 of the Act and the subsequent proceedings seeking prerogative relief in the original jurisdiction of the High Court under s.75(5) of the Constitution, relate to the same cause of action. The identity of the causes of action in question is to be determined, by matters of substance.
In the present matter the applicant raises the same grounds as in the previous proceeding which was dismissed. Those matters in additon simply seek to re-agitate questions of fact which this Court cannot do.
The dismissal orders earlier must therefore be seen as finally disposing of the subject of litigation, namely the grounds of review as outlined in the application. On the remitter in the s.75(5) of the Constitution proceeding before me, the grounds relied upon are no wider or greater than the grounds or relief available in the proceeding the subject of the dismissal orders.
The remaining question is whether the cause of action arising under s.75(5) of the Constitution is different to that arising under Part 8 of the Act. In the present case the same cause of action is relied upon in the two proceedings. There is thus a commonality of the cause of action. The substratum of facts giving rise to the right to review and relief are exactly the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles and it is not contended that the parties to the two sets of proceedings differ in any material respect. Thus the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Refugees Protocol Relating to the Status of Refugees in the present case.
The Refugee Review Tribunal hearing
I turn now, for completeness's sake, to a consideration of whether there was jurisdictional error committed by the RRT. The applicants claims are accurately set out in the first respondent's contentions of fact and law at paragraph 4. As to those claims, which I shall not reiterate here, the Tribunal noted the applicant's change in evidence from his initial claims to have delivered parcels to his claim at the hearing that he delivered no parcels. As a result of this change in evidence the Tribunal was not satisfied that the applicant had delivered parcels for the LTTE unwittingly or otherwise. Additionally, the Tribunal considered it implausible in the view of country information it cited, that the applicant would have been considered to have been involved with the LTTE. The Tribunal did not accept that the applicant was a wanted man when looking to the fact that he had worked for long periods in various places and noted that those facts were inconsistent with him having been a wanted man as early as 1992. The Tribunal found the documents describing the applicant as a wanted man were contrived to assist with his application for refugee status. The Tribunal noted the applicant had been able to enter and leave Sri Lanka a number of times on his own passport and that after 1992 he had married and had a child and had appeared to lead a normal life.
The Tribunal considered the applicant's claims were contrived. The Tribunal did accept that the applicant had problems, as referred to in a psychologist's report which the applicant provided to the Tribunal at the hearing, but did not accept that those problems stemmed from his alleged arrest or any Convention related matters.
The Tribunal had the advantage of seeing and hearing precisely how the applicant gave his evidence. The Tribunal made credibility findings adverse to the applicant and in relation to which this Court should not readily interfere (see re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2001) 68 ALR 407). The Tribunal was entitled to accept country information in preference to the applicant's evidence and did so.
It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. The findings made by the Tribunal were open to it on the evidence before it.
The Tribunal came to the conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason. There is no arguable jurisdictional error in the Tribunal's decision and it is thus a privative clause decision for the purposes of s.474(1) of the Act. The grounds relied upon by the applicant are not sustainable on traditional judicial review grounds.
I shall dismiss the application and order that the applicant pay the respondent's costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 27 August 2004
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