M206 of 2004 v Minister for Immigration
[2006] FMCA 291
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M206 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 291 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – no jurisdictional error – abuse of process in re-litigating same grounds. |
| Migration Act 1958 (Cth), ss.417, 418(3), 425 |
| SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 80 SZAHW v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FMCA 520 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 457 at 558-559 SZCXD v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCA 1650 SZDXB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FMCA 720 Neil Pearson & Co at 451 per Kirby ACJ, CA (NSW) |
| Applicant: | APPLICANT M206 OF 2004 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
| File Number: | MLG 777 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 27 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2006 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms S.A. Burchell |
| Solicitor for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6500.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 777 of 2005
| APPLICANT M206 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
History
On 13 December 2004, the applicant commenced proceedings in the High Court pursuant to s.75(5) of the Constitution, seeking prerogative writs of certiorari, prohibition and mandamus by draft order nisi in respect of the second respondent's decision made on 23 December 2003 and handed down on 16 January 2004. That decision affirmed the decision of the first respondent's delegate to refuse to grant the applicant a protection visa.
Hayne J ordered on 13 April 2005 the remittal of this matter to this court. The applicant had previously filed an application for review in this court on 16 June 2004. That application was for review of the same Tribunal decision.
The applicant is a male citizen of Ethiopia. He arrived in Australia on 11 April 2002 on a visitor's visa. On 3 May 2002, the applicant made application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (the department). On 13 August 2002 a delegate of the first respondent refused to grant a protection visa to the applicant and on 10 September 2002 the applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision.
On 9 September 2003 the Tribunal wrote to the applicant at his address for service inviting him to attend a hearing of the Tribunal listed on 3 October 2003 to give oral evidence and present arguments in support of his case. Pursuant to s.425 of the Migration Act 1958 (Cth) (the Act) the applicant appeared at the hearing and gave oral evidence.
The Tribunal subsequently affirmed the delegate's decision and the applicant filed an application for judicial review of the Tribunal's decision in this court on 9 February 2004 as earlier referred to. On 16 June 2004 the applicant served a notice of discontinuance on the first respondent's solicitors. On 27 July 2004 Registrar Efthim made a costs order against the applicant. The applicant then made an application to the Minister pursuant to s.417 of the Act. That application was denied on 29 November 2004.
On 13 December 2004 the applicant filed a draft order nisi in the High Court returnable on 16 March 2005 and being the current application. On 10 March 2005, the first respondent issued a summons seeking orders that:-
(1) an extension of time in which to apply for an order nisi be refused;
(2) alternatively the application for an order nisi be refused on the basis that the applicant cannot establish an arguable case, or because of the doctrines of res judicata and/or issue estoppel and/or Anshun estoppel;
(3) the application for prohibition be refused on the basis that the applicant cannot establish an arguable case.
On 13 April 2005 when the proceedings were remitted to this court, the application for an extension of time and the application for an order nisi was ordered to proceed in this court.
The applicant relies on various unparticularised grounds of jurisdictional error which I shall not restate here.
The Tribunal considered the claims the applicant made in his protection visa application being as follows:-
(a) he left Ethiopia because he was employed as a cook by a member of the Ethiopian embassy in Japan. The applicant stated that he was a member of the OROMO Liberation Front (OLF) opposed to the Ethiopian government;
(b) the applicant claimed that before leaving Ethiopia in January 1997, he was secretly an active member of OLF, as was his father. His mother of Eritrean background was having some difficulties in her local community;
(c) he had a cafe business in Ethiopia that he left to his brother and sister to manage but this was burnt by the police following a local uprising. Because of his activities in Japan on behalf of the OLF, his brother, sister and father than disappeared. His assets were confiscated, his mother was also missing;
(d) whilst working for a member of the Ethiopian embassy in Japan, he was an informer for the OLF, providing the OLF in Ethiopia with information that he became aware of that affected OLF operations. This information helped him avoid attacks by the government force;
(e) he sent money to the OLF;
(f) the Ethiopian embassy became aware of his activities in approximately October 2001 and began making arrangements to remove him from his position. In January 2002, he was warned by a senior embassy official that he was being investigated;
(g) the applicant claimed to fear that the government would persecute, torture and kill him if he were to return to Ethiopia. The government would try to force him to divulge names of other OLF members;
(h) the applicant claimed he would also be persecuted because he is from the OROMO ethnic group which he said is persecuted by the Ethiopian government.
In the delegate's interview the applicant made more claims, those being:-
that prior to his departure for Japan in January 1997 he was occasionally visited at his place of business by the authorities who tried to intimidate him and questioned him about his involvement with the OLF because of his father's participation in the OLF.
The delegate raised with the applicant whether he could return to Japan. At that point the applicant's working visa for Japan had not expired. At the review hearing, the Tribunal asked the applicant whether he could still return to Japan as his working visa had then expired. The applicant said he could not return to Japan because of the expiry of his visa and because his visa had been dependant on his employment as a cook with the Ethiopian embassy and that employment had been terminated.
Tribunal hearing
The Tribunal invited the applicant to explain why he had sought a protection visa in Australia. The applicant claimed that his father had been a member of the OLF in Ethiopia. The applicant had corresponded with his father, sending him information useful to the OLF and money to support the OLF. The embassy had learnt that he was providing this help and had wanted him to return to Ethiopia.
The applicant added that he had previously owned a small food business which he had asked his siblings to manage whilst he was in Japan. There was unrest in the vicinity of the business in 1999 involving OROMO and Amhara ethnic groups. The family business was burnt and he had lost track of his siblings. The applicant claimed when the government found out about his link to the OLF through his father, they killed his father.
The applicant claimed that he had sent money through people returning to Ethiopia, and by taking the money to Ethiopia himself when he returned in 1999. Whilst in Japan he also learnt of government plans against the OLF about which he was able to warn his father. The applicant claimed OROMOs in Japan who were suspected of being OLF supporters had been sent back to Ethiopia by the embassy. He would learn who was going to be taken and pass the information to these people. He claimed that in October 2001 the embassy sent a letter to the Ethiopian foreign ministry informing it that the embassy suspected him of helping the OLF.
For the purposes of the Convention the Tribunal assessed the claims of the applicant against Ethiopia as the applicant's country of nationality. The Tribunal accepted that the applicant no longer had a valid visa to enter Japan. The Tribunal found the applicant's central claim that he spied for the OLF in Japan, and his association with the OLF, were not credible. The Tribunal did not accept that (a) the applicant sent money to the OLF; (b) the applicant's father was a conduit for the money and information for the OLF; (c) the applicant was a member of the OLF in Ethiopia prior to going to Japan; (d) the applicant was either an active or passive supporter or member of the OLF; (e) the applicant's father was a member of the OLF and the Ethiopian authorities questioned the applicant about his OLF links; (f) the applicant's father was missing or had been killed because he was linked to the OLF.
The credibility findings of the Tribunal in relation to those matters in the preceding paragraph resulted in the Tribunal not accepting the applicant's claims that his cafe was burnt down by the police; that his assets were frozen; and that his siblings and mother had disappeared.
During the hearing, the Tribunal had questioned the applicant regarding the claims made by him, telling him that it did not find his claims regarding information that he obtained at the embassy credible. It referred to country information and said that it was not credible that Ethiopian officials in Japan would have prior knowledge of the Ethiopian army's action.
The Tribunal commented on the lapse of six months from the date of the embassy letter, October 2001, to his departure from Japan in 2002. The applicant agreed that the embassy letter had no reference to the OLF. It also commented that his passport was renewed. This was in contrast to how he said the embassy treated suspected OLF members.
All of the above matters were canvassed and set out in greater length in the respondent’s accurate and thorough contentions of fact and law filed.
Consideration
The Tribunal determined the matters before it on the basis of its findings with respect to the applicant's lack of credible evidence. The Tribunal is an inquisitorial body. Although in particular circumstances it might be required to investigate beyond the limits of a claim made by an applicant, there was nothing in the present case to indicate that it was bound to do so (SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 80).
The Tribunal considered country information which it put to the applicant during the hearing. The applicant's claim that the Tribunal allegedly did not use the appropriate information from Ethiopia to assess his case is not supported by evidence put by the applicant as to the existence or nature of information that he considers the Tribunal should have obtained. It is a matter for the applicant to have made out his case before the Tribunal.
Pursuant to s.418(3) of the Act, the Secretary of the department is bound to give the Tribunal registrar all relevant documents in its possession. The Tribunal made clear in its reasons for decision that it did have the information referred to by the delegate of the first respondent. The Tribunal set out in its reasons that it had before it the department's file which included the protection visa application and the delegate's decision record, the material referred to in the delegate's decision and other material available to it from a range of sources.
The applicant fails to identify any relevant additional information or classes of information that he would have provided to the Tribunal (SZAHW v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FMCA 520). The applicant submits that the Tribunal failed to take into account a relevant consideration. That ground must fail. The Tribunal made findings of fact open to it on the basis of the evidence before it. The applicant is asking the court to examine the making of particular findings on the merits of the case which it is not permissible for this court to do.
The applicant submits that the Tribunal exhibited apprehended bias in its questioning. The allegations of bias against both the Tribunal member and the interpreter are allegations of a serious nature. The applicant puts before the court no affidavit material, no transcript of the Tribunal hearing, no evidence of another interpreter providing evidence of the interpreter's interpretation during the hearing. There is no evidence that any error of interpretation went to a critical finding of fact. There is no allegation in this case that the applicant was overborne or intimidated in the inquisitorial process.
The fact that a Tribunal makes a finding against an applicant in relation to his credit does not demonstrate that the Tribunal did not treat the applicant's claims with an open mind. In SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668, von Doussa J observed at 38:
The mere fact of adverse findings at the end of the matter gives rise to no inference to the state of mind of the decision‑maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision‑maker had embarked on the case with a closed mind, not open to persuasion.
There is no evidence before this court that "a fair‑minded lay observer or a properly informed lay observer might readily infer that there is no evidence that the witness can give which can change the decision‑maker's view" (Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425, per Gleeson CJ, Gaudron and Gummow JJ at 435).
The Tribunal had grave concerns about the applicant's credibility. The question of credibility is a finding on merits of the case. The Tribunal's credibility findings were open to it and as such no error is demonstrated in its conclusions (Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 457 at 558-559).
I find that no jurisdictional error attends the Tribunal's reasons.
Additional findings
The applicant abandoned the first proceeding for review of the Tribunal's decision brought in this court on 16 June 2004. The cause of action in this proceeding arises substantially out of the same matters of fact as those in the first proceeding and accordingly the applicant is estopped from bringing these proceedings.
The present proceeding seeks substantially the same relief as the first proceeding and the grounds relied upon are the same or alternatively are matters which might have been brought forward in the first proceedings, being various broad and unparticularised grounds of jurisdictional error. This proceeding does nothing to add to the former proceeding (Neil Pearson & Co at 451 per Kirby ACJ, CA (NSW)). Further, the application merely seeking to replicate the proceeding that was commenced in the court earlier and that was ultimately discontinued. These proceedings are clearly an abuse of process, being an attempt to re‑litigate the same matter by reference to the same cause of action (SZCXD v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCA 1650 per Wilcox J).
I conclude it is open to the court to infer that the applicant is now using the processes of this court to extend his presence in Australia, which is now extended from a three-month visitor visa to a period of almost four years, rather than for any legitimate purpose (SZDXB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FMCA 720).
The application must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
Date:24 March 2006
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