M75 v Minister for Immigration
[2004] FMCA 183
•2 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M75 v MINISTER FOR IMMIGRATION & ORS | [2004] FMCA 183 |
| MIGRATION – Application for judicial review – whether doctrine of res judicata applies. |
Judiciary Act 1903 (Cth), ss.39, 39B
Migration Act 1958
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24
Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677
| Applicant: | APPLICANTS M75/2002 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MR BRENDAN KISSANE sitting as the Refugee Review Tribunal |
| Second Respondent: | MR STEVE KARAS in his capacity as Principal Member of the Refugee Review Tribunal |
| File No: | MZ 524 of 2003 |
| Delivered on: | 2 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 February 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| The Applicant’s appearing in person. |
| Counsel for the Respondent’s: | Dr S. Donaghue |
| Solicitors for the Respondent’s: | Australian Government Solicitor |
ORDERS
That the Application be dismissed.
That the Applicants pay the first Respondent's costs fixed at $7000.00 which sum includes costs incurred in the High Court of Australia and the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 524 of 2003
| APPLICANTS M75/2002 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
and
| MR BRENDAN KISSANE sitting as the Refugee Review Tribunal |
Second Respondent
And
| MR STEVE KARAS in his capacity as Principal Member of the Refugee Review Tribunal |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s.39 of the Judiciary Act 1903 (Cth). The applicants are husband and wife and are citizens of Sri Lanka, they are of Tamil ethnicity. They arrived in Australia on 6 June 1999. On 5 July 1999 they applied for protection visas. The husband made specific claims under the Refugee Convention and the wife's application is a derivative application to that of the husband. On 27 March 2000 a delegate of the first respondent refused to grant the visas. The applicants then applied to the Refugee Review Tribunal for review of the delegate's decision. The tribunal affirmed the delegate's decision on 27 September 2000. On 22 May 2001 that decision was set aside by the Federal Court by consent and the matter was remitted to the tribunal. The newly constituted tribunal handed down a further decision on 23 November 2001. That is the decision which is challenged in these proceedings.
On 20 December 2001 the applicant applied to the Federal Court for judicial review of the decision. Substantial amendments had been made to the Migration Act 1958 and they had come into force in October of 2001 so that the application made to the Federal Court on 20 December 2001 was governed by the new part 8 of the Migration Act. On 8 May 2002 that Federal Court application was dismissed by consent by an order made by Ryan J.
On 31 May 2002 the applicant applied to the High Court for an order nisi requiring the first respondent to show cause why writs of prohibition and certiorari should not be issued in respect of the decision. On 7 February 2003 Hayne J of the High Court ordered that the proceedings be remitted to the Federal Court of Australia and on 20 May 2003 Marshall J of the Federal Court ordered that the proceeding be transferred from the Federal Court to this court.
The argument has been put on behalf of the minister that the doctrine of res judicata applies and that this court cannot consider the application but must dismiss it because essentially the same application has already been dismissed in the Federal Court. The application which was made to the Federal Court filed on 20 December 2001 sets out the grounds of the claim for relief in the following terms:
a)That pursuant to the Act and s.39B of the Judiciary Act, a decision is not reasonably capable of reference to the decision-making power given to the decision-maker.
Particulars:
The tribunal concludes that based on country information the applicant does not fit the profile of someone of interest to the authorities, therefore there is no real chance that he will be detained in the future either because of Tamil ethnicity or any imputed political opinion such as supporting the LTTE. The tribunal has erred in that it does not follow that other people who fall outside that general profile are never persecuted or are not at risk of persecution. But in the applicant's case the tribunal accepts that he has suffered persecution in the past yet concludes he will not suffer persecution in the future.
The tribunal erred in law in failing to properly apply the real-chance test as laid down in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in the manner it approached its considerations of the applicant's case. The tribunal did not undertake the required specification and the chance of persecution emerging from a consideration of the whole of the material before the tribunal.
The tribunal erred in law in failing to address the issue of whether or not the applicant would be subject to persecution in the event that he was returned to his home town. The tribunal should have first considered whether the applicant was able to return to his home town and if it then considered that it was unsafe to do so, then consider the option of internal flight. The tribunal is only paying lip service to the principle of internal flight by referring to Renawa and taking it no further.
b)That pursuant to the Act and s.39B of the Judiciary Act, the decision does not relate to the subject matter of the legislation.
Particulars:
The applicant refers to and repeats the particulars subjoined to paragraph 4(a).
c)That pursuant to the Act and s.39B of the Judiciary Act, the decision‑maker was not acting in good faith.
Particulars:
The applicant refers to and repeats the particulars subjoined to paragraph 4(a).
The application to the High Court was by way of a draft order nisi. It set out as its grounds for applying all the usual grounds for review of an administrative decision which had been set out in the earlier application to the Federal Court. As to particulars, it merely stated that particulars to be provided at a later date. Subsequently an amended application was filed in the Federal Court. By that time the decision in Plaintiff S 157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 had been delivered in the High Court so that the basis for the application was no longer grounds based on the Hickman case but wider grounds as a result of the High Court's decision.
Subsequently on 27 June an amended application dated 26 June was filed in the Federal Court and that is the amended application which has been transferred to this court. That application sought review under s. 39B of the Judiciary Act. It claimed that the decision was judicially reviewable and set out grounds for judicial review. In setting out those grounds the amended application expressed them in this way:
a)The decision of the tribunal:
(a)was made without jurisdiction or is affected by an error of jurisdiction;
(b)is affected by an error of law;
(c)is so unreasonable that no reasonable decision‑maker could have made it;
(d)is based on a finding for which there was no evidence or other material;
(e)takes into account irrelevant considerations;
(f)fails to take into account relevant considerations;
(g)was an improper exercise of power conferred by the Migration Act 1958;
(h)was otherwise contrary to law;
(i)was made in bad faith.
Particulars:
The tribunal concluded that based on country information I do not fit the profile of someone of interest to the authorities, therefore there is no real chance that I will be detained in the future either because of my Tamil ethnicity or any imputed political opinion such as supporting the LTTE. The tribunal has erred in that it does not follow that other people who fall outside that general profile are never persecuted or are not at risk of persecution. The tribunal erred in law in failing to properly apply the real-chance test as laid down in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in the manner it approached its considerations of my case. The tribunal also erred in law in failing to address the issue of whether or not I would be subject to persecution in the event that I was returned to my home town.
b)The decision‑maker failed to accord the applicant natural justice:
(a)failed to follow the procedures required by the Migration Act;
(b)asked the wrong question or misconceived her duty.
Particulars:
I repeat what I have stated above.
It can be seen that the grounds relied upon in the amended application, save for some immaterial changes and omissions, are identical with those in the application to the Federal Court that was dismissed by consent on 7 May 2002. The question of the application of the doctrine of res judicata has been considered by Merkel J in the Federal Court in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. The circumstances are, I consider, indistinguishable from the circumstances of this case. The application came to the Federal Court on a part remitter from the High Court on an application for writs of prohibition, certiorari and mandamus in relation to a decision of the Refugee Review Tribunal. Prior to that occurring, there had, as in this case, been an application to the Federal Court which had been dismissed by consent on 29 September 1997. At paragraph 35 of his judgment His Honour said:
It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest.
His Honour then deals with the authorities. Then he says this at paragraph 44:
If res judicata applies to the present proceeding, there is no discretion in the court to allow the proceeding to continue. By operation of law, the applicants are not able to maintain the proceeding as the plea, if made out, is a complete bar to the claim as the cause of action is extinguished by the first judgment.
Paragraph 45:
In determining whether res judicata applies, the primary question is whether the cause of action and the matter proceeding is the same as that which was litigated in the former proceeding.
His Honour then gives further consideration to that and he then says this at paragraph 65:
Accordingly, for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above. The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are 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. 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 convention to the present case.
I consider that that statement by His Honour applies equally in this case. First, the substratum of facts giving rise to the right to review are exactly the same. Indeed, the facts giving rise to the right to review are exactly the same. It is the one decision by the Refugee Review Tribunal which is challenged. The grounds for review which are claimed are the same. The basis on which it is put is expressed differently and that is because of the effect of the High Court's decision in Plaintiff S157 v Minister for Immigration but that does not alter the fact that the substratum of facts giving rise to the right to review are exactly the same.
The applicant, that is, the male applicant, claims that he was subject to persecution in convention terms in Sri Lanka. He made an application for a protection visa in Australia. That application was refused and the decision refusing the protection visa was affirmed by the Refugee Review Tribunal. The challenge made in the earlier Federal Court proceeding and in this proceeding is exactly the same challenge. The factual circumstances relied upon to establish the right to relief are the same, as His Honour states. The substance of the two proceedings are the same. As I have already said, the only difference in the way the case would be approached is that at the time the Federal Court proceeding was commenced the decision in S157 v Minister for Immigration had been given. However, by the time of the dismissal in the Federal Court, the decision in S157 had been given and the application had been amended accordingly. His Honour then says:
It is not contended that the parties to the two sets of proceedings differ in any material respect. In fact the parties are identical.
So in the words of His Honour, the dismissal orders made in the earlier Federal Court proceeding finally determined the issue of whether the Refugee Review Tribunal committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the convention in the present case.
One matter which needs to be addressed is that the male applicant in this hearing, in his oral submissions raised what seems to be a new point, which seems to be an allegation of actual bias by the tribunal member. It is not raised in the application and not particularised in any way. What it comes down to, as best as I can understand it, is that the tribunal did not take into account a handwritten report from a police officer at a Sri Lankan police station of a complaint made by the male applicant on 5 March 1999. The male applicant asserted in his oral submissions that the tribunal had rejected it because it was a handwritten statement. He said the tribunal should also have listened to the tapes of earlier interviews with departmental officers before coming to the conclusion that it did.
I do not consider that even if that ground or particular was one which the applicants could now raise, that it alters the position so far as res judicata is concerned. It is a natural justice point which is raised in both proceedings. It arises out of the same substratum of facts. The right to relief in each case is informed by the same substantive law principles. But quite apart from that, there is no substance in that point because the Tribunal did take into account the handwritten statement. It did not reject the handwritten statement. The Tribunal says in its reasons which appears at page 179 of the court book – at 178 and 179 the Tribunal says this:
The tribunal considers it possible that the applicant was detained probably by the army on 3 September 1998 because of his inability to produce a residence report. However, the tribunal does not accept that this would have led the authorities to consider him an LTTE supporter or to physically abuse him about this. He was released the next day. In view of the short period of his detention, the tribunal considers that he was able to sort out these residence issues. The tribunal does not accept that he suffered injuries or has scars from this experience. There is no suggestion he sought medical treatment. Significantly, when he made a statement to the police in March 1999 he made no mention of any mistreatment or any physical abuse. As a result, the tribunal finds that whilst the applicant may have been detained because of residence report irregularities, he was not mistreated in custody.
Contrary to what is put, the tribunal did accept that that was a statement made to the police and took that into account in coming to its determination. I am of the clear view that the principle of res judicata applies in these circumstances and because there is strong authority from a Federal Court judge that in such circumstances the court cannot consider the application, I do not think I should go on to consider what the merits of the application would have been if it had been possible to consider it. Both applications are dismissed. The application is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM
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