M72 of 2004 v Minister for Immigration
[2005] FMCA 188
•2 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M72 of 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 188 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 |
A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
| Applicant: | APPLICANT M72 of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1298 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 16 December 2004 |
| Delivered at: | Melbourne |
| Reasons delivered on: | 2 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Davis |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $3,818.00.
The applicant is not permitted to file any further application without leave of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1298 of 2004
| APPLICANT M72/2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Judgment was given in this matter on 16 December 2004. These are the reasons for judgment.
The applicant is a citizen of Sri Lanka who arrived in Australia on
20 January 1998 on a Student (Temporary) visa. On 10 July 1998 the applicant lodged an application for a protection visa which was determined by a delegate of the Minister on 30 November 1998. The Minister’s delegate refused to grant a protection visa.
On 30 December 1998 the applicant sought a review of that decision in the Refugee Review Tribunal (‘the RRT’). The RRT heard the applicant and made a decision in the matter on 18 April 2002. The applicant seeks judicial review of that decision.
The applicant’s case before the RRT was that he was born in the village of Vanniapannai, Jaffna, Sri Lanka, later moving to the village of Chulipuram in the same province (Jaffna). He claimed that he is a Sri Lankan national, a Tamil and a Hindu. He further claimed that his village was badly hit by the Indian Peace Keeping Force (IPKF), forcing him, and his family to flee and take refuge in a temple. This upset is claimed to have adversely affected his studies at the time owing to the general dislocation and hardships of the Tamil people.
As a result of this the applicant claims that he helped support the Tamil Rehabilitation Organisation (TRO) in that in 1992 he received 2 weeks of first aid training and began visiting refugee camps. During this time he claims that he came into contact with two other Tamil youths (namely Senthooran and Navaneethan) and that together they voluntarily began to help LTTE widows.
The applicant claims that there was a time of peace between the LTTE and the Sri Lankan government which followed, but that hostilities soon flared again and that in mid 1995 he was forced to flee Jaffna. He further claims that in April 1996 he returned to Jaffna to continue his studies and was arrested on 4 July 1996 by security forces, detained for the day, beaten, photographed, then released. He claims to have been arrested later by the security forces in a cordon search along with 25 other youths (an event that he claims was common) just before his GCE (Advanced Level) examination. Despite this the applicant claims to have completed his studies in September 1996. The applicant then went to Colombo to study English, during which time he was arrested in another cordon search and detained for two days in August 1997.
As he did not speak Sinhalese and had no employment in Colombo he claims that he was vulnerable to arrest.
The applicant applied to come to Australia on a Student visa because he claims that his mother informed him that his friend Senthooran had been arrested by the security forces following a search of his home which yielded photos of all three youths, forcing Navaneethan into hiding. These photos are claimed to have shown the three youths at LTTE public meetings in 1991 and 1992, thus linking him with the LTTE. He claims that Navaneethan was arrested in May 1998. He claims that he was not arrested because, whilst he believed that either Senthooran or Navaneethan would have supplied his identity to the security forces, his address was unknown. The applicant further claimed that following these arrests his family home was raided, his mother and sister assaulted and the home bombed.
The RRT, in reaching its decision not to grant a Protection visa did not accept the applicant’s version of events. The RRT effectively approached the applicant’s claims on two levels: firstly, whether he was specifically subject to a real chance of persecution and secondly whether being a young male Tamil born in Jaffna gave rise to a need for protection from persecution in Sri Lanka.
On the first level the RRT found that the Sri Lankan authorities, had the applicant been a person of interest to them (following the arrests of either of his friends, or by any suspicion of association with the LTTE), had sufficient information to locate him in that:
a)There was a period of at least 3 months between his obtaining a passport and leaving Sri Lanka (where he could have been detained at the airport if necessary); and
b)his father’s address in Colombo was common knowledge; and
c)he had been detained in a cordon search until his identity had been established; and
d)he had recently graduated from a college in Colombo.
The RRT also appears to have rejected the applicant’s claim that there was no communication between the north of Sri Lanka and Colombo which would have facilitated locating him. The RRT also found it implausible that the applicant’s family in Jaffna were mistreated, then allowed to go about their daily life.
The RRT then went on to consider whether being a young male Tamil born in Jaffna was sufficient for the applicant to require protection. The RRT accepted that the Tamil’s had been generally mistreated in the past and that the applicant had suffered hardships, but concluded that they were (at p.11 of the RRT’s decision);
short-lived… (and that he had been)…able to continue with at least a relatively normal progress (sic) through life
and further that;(p.13)
…the Applicant was not treated to the point of persecution during his brief period of detention and this contributes to the Tribunal finding that the Applicant had not been persecuted for reasons of his Tamil ethnicity or political opinion or imputed political opinion before he left his country.
The applicant seeks judicial review in the Federal Magistrates Court of the RRT’s decision. The applicant has previously sought judicial review in the High Court on 14 June 2002. The draft order nisi alleged errors on the part of the RRT as follows:
a.in its interpretation or application of the term “persecution”;
b.by failing to consider properly, or at all, whether the Applicant had a well-founded fear or persecution by future detention or ill treatment;
c.by failing to consider properly, or at all, whether the Applicant had a well-founded fear or persecution as a Tamil by future detention or ill treatment;
d.by breaching s.424A of the Migration Act 1958 (“the Act”;
e.by breaching its common law natural justice obligations;
f.by committing an error of law on the face of the record;
g.by breaching s.420 of the Act.
These proceedings were remitted to the Federal Court of Australia as proceedings V688/02. In these proceedings the applicant was represented by a solicitor. The applicant filed detailed contentions of fact and law on 28 February 2003. The application was dismissed by Marshall J and the judgment is available on the internet: Applicant M88/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 427. The applicant appealed to the Full Court, however the appeal was dismissed by consent on 25 September 2003.
In these proceedings the applicant claims that the RRT accepted he was detained for identity checks, and in that regard relied upon the following exchange in the transcript:
While you were in Colombo, did you have any problems with the authorities for that period that you were there?---In Colombo (indistinct) and I (indistinct) two days in (indistinct).
When did that happen?---97
Which month?---I don’t’ exactly remember
Why were you picked up at that time?---Any Tamils between 20 and 30 years of age (indistinct), especially if they are Tamil and if they (indistinct) they’re arrested.
You spent two days there. Were you released after they confirmed your identity, or what happened?---
After I (indistinct) number and after took my photograph they release me/.
The applicant says that he was meaning to give evidence that this was more than identity checks and that the RRT erred on not asking him the correct questions to elicit this information. I see no jurisdictional error in this regard. The RRT gave the applicant an appropriate opportunity to put his case.
In any event, this claim effectively seeks to re-litigate claims already dismissed in the Federal Court. As stated by Wilcox J in A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306:
[18]…It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies...
[19]If I am wrong in saying that this is technically a matter of res judicata. It certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.
In the circumstances I dismiss the application.
The application was clearly frivolous and the applicant should be prevented from bringing further proceedings on this issue. I therefore make an order that the applicant not be permitted to bring further applications without leave of the Court.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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