M81of 2002 v Minister for Immigration
[2004] FMCA 522
•20 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M81of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 522 |
| MIGRATION – Appeal from Refugee Review Tribunal decision – application for protection visa – police officers as a social group – application initiated in High Court – previous determination in Full Court of Federal Court – res judicata – Anshun estoppel – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 474, 475A
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054
| Applicant: | APPLICANT M81 of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 428 of 2003 |
| Delivered on: | 20 August 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 17 August 2004 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | (Self-represented) |
| Solicitors for the Applicant: | (Self-represented) |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the application be dismissed.
THAT the applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 428 of 2003
| APPLICANT M81 of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on 6 June 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 15 October 2001 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.
The history
The applicant is a citizen of Malaysia, of Punjabi ethnic background. He entered Australia on 1 January 1999 as the holder of a visitor visa which expired on 1 April 1999. On 5 February 1999 he was granted a student visa valid until 15 March 2001. Following expiration of that visa, the applicant was detained on 22 May 2001. He lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs on 15 June 2001.
The applicant claimed that he could not return to Malaysia as he fears harm from allegedly criminal persons and corrupt government officials in Malaysia. The applicant was employed as a police officer in Malaysia from 1986 until 1992, and was eventually dismissed from the force as a result of what the applicant claims to have been “trumped up charges” (as reported in the Tribunal’s decision at Court Book (“CB”) page 94). The applicant submitted that as a policeman he was a member of a particular social group, as required by the Refugees Convention. The applicant detailed various incidents and injuries in his application which he said had been deliberate attempts on his life because of his past association with the police force and his providing information about the actions/operations of certain allegedly criminal identities including a man named “Ringo”. In the applicant’s written statement to the Department of Immigration and Multicultural Affairs, which accompanied his application, the applicant claimed:
I believe that some rich and powerful person or organisation wants me dead as a result of an arrest or arrests I made during my career as a policeman.
On 1 August 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 2 August 2001.
In the decision made by the Tribunal on 15 October 2001, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. Summarily, the Tribunal did not accept that:
a)the applicant being forced to leave the police force amounted to serious harm or persecution;
b)any persons existed who “would have any interest in harming the applicant as a result of information he learned of during his time in the police force”;
c)any of the accidents or incidents suffered by the applicant since leaving the police force related to his former employment as a police officer, including heroin charges or incidents whilst working as a truck driver;
d)the applicant “is a member of a particular social group of former policeman or disgraced policeman”; or
e)the applicant held any political opinion that could be perceived as threatening by any government officials or political party.
In respect to the history of the applicant’s appeal, as stated in the respondent’s contentions of fact and law, which were filed on 5 January 2004, the following occurred:
On 18 December 2001 the Honourable Justice Marshall dismissed an application for an order of review of the Tribunal’s decision.
On 10 May 2002 the Full Court [of the Federal Court of Australia] (Black CJ, Drummond and Kenny JJ), dismissed the applicant’s appeal from the decision of Marshall J, finding that there was no substance in the complaints made of errors by the primary judge.
On 6 June 2002, the applicant sought prerogative writ relief in the High Court of Australia, being M81 of 2002, supported by an affidavit sworn on 6 June 2002 asserting that the Tribunal’s decision was not “lawful”. On 7 February 2003 the matter was remitted to the Federal Court of Australia by order of Justice Hayne, and becoming V195 of 2003 in the said Court. On 24 April 2003 the matter was transferred to this Court by Justice Marshall, becoming MZ428 of 2003.
As at the date of hearing by this Court, the applicant had not filed any amended application or contentions of fact and law.
The respondent’s contentions of fact and law argue that there was no jurisdictional error which may invalidate the Tribunal’s decision, stating that:
a)the applicant has not complied with the separate orders of Marshall J on 24 April 2003 and the Federal Magistrates Court on 18 June 2003, that he file and serve an amended application as well as contentions of fact and law;
b)“the applicant’s grounds of review were rejected by both the Federal Court at first instance and on appeal by the Full Court. The Court did not identify any other error going to jurisdiction, nor has the applicant subsequently articulated any such error”; and
c)the Tribunal did not fail to exercise jurisdiction or exercise an excess of jurisdiction.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
Conclusions and findings
The applicant, when the matter commenced, indicated that he wanted the opportunity to introduce new evidence but otherwise he relied on the draft order nisi and affidavit filed at the same time. He also confirmed that he had not complied with the orders of Marshall J made on the 18 June 2003 for the filing of proper particulars and contentions of fact and law, nor with the orders of this Court extending the date for compliance to the 5 September 2003.
It was therefore the position adopted by the respondent that the matter had been dealt with on the merits by the Full Court and the doctrine of res judicata applied. The first matter to consider is whether the applicant should be granted an extension of time with which to file writs of certiorari (six months) and mandamus (two months). The applicant is out of time with respect to both (eight months). In Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [12] Goldberg J said:
The first matter to consider is whether the applicant should be granted an extension or an enlargement of time within which to apply for an order nisi for the issue of writs of certiorari and mandamus. The proper approach to take to such applications and the relevant factors and principles to take into account were considered by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496. Those factors include the reason for the delay, the length of the delay, whether any decision was made at any point of time to accept the decision of the Tribunal, whether any party may be prejudiced if the extension is not granted and, ultimately, the applicant’s prospects of success in obtaining an order absolute for the issue of the writs. It is also necessary to take into account the basic and fundamental principle that the Court should seek to achieve justice between the parties and that there should be an end to litigation. In Re Commonwealth of Australia; Ex parte Marks (supra) McHugh J said at 496:
“In all but very exceptional cases, they [the time provisions] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”
In this case there was nothing to explain the delay in either the draft order nisi or the affidavit, nor do I consider the application has any real prospect of success.
With respect to the issue of res judicata, Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 at [33] said:
I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s 75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding.
There is no doubt in my view that the cause of action in the present proceeding is the same cause of action that was determined by the Full Court of the Federal Court in the original proceeding. The grounds of review relied upon before the Full Court are nearly identical with those articulated in the draft order nisi. Indeed in this proceeding both proceedings take the form of an application for constitutional writs. Accordingly the application must be dismissed.
Even if the doctrine of res judicata did not apply, I am satisfied that the applicant should be estopped from bringing the present proceedings because of the doctrine of Anshun estoppel. Anshun estoppel occurs when an applicant puts forward in the latter proceeding matters which might have been put forward in the earlier proceeding. The High Court in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602 held:
Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
For the reasons set out above the application must be dismissed and the applicant should pay the respondent’s costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 20 August 2004
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