M86 of 2004 v Minister for Immigration - [2006] FMCA 218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M86 of 2004 v MINISTER FOR IMMIGRATION AND ANOR

[2006] FMCA 218

MIGRATION – Application for judicial review – no jurisdictional error in Tribunal decision – issue estoppel and res judicata – application dismissed.

Migration Act 1958 (Cth)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 10
NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
SHJB v Minister for Immigration & Multicultural& Indigenous Affairs (2003) FCAFC 303
Thevendran v Minister for Immigration & Multicultural Affairs (2000) FCA 868
Minister for Immigration & Multicultural & Indigenous Affairs; ex parteDurairajasingham (2000) 168 ALR 407
Somanader v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;
Blair v Curran (1939) 62 CLR 464
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342

Applicant:

APPLICANT M86 OF 2004

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 882 of 2005

Judgment of:

Hartnett FM

Hearing date:

13 February 2006

Delivered at:

Melbourne

Delivered on:

24 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Ravi James Solicitors

Counsel for the Respondent:

Mr W. S. Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The Refugee Review Tribunal be joined as second named respondent to the proceedings.
The application is dismissed.
The applicant pay the respondent’s costs in such sum as is agreed or failing agreement as determined by the Court upon application made to it by telephone mention on or before 24 April 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 882 of 2005

APPLICANT M86 OF 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

History

The applicant is a citizen of Sri Lanka. He arrived in Australia on

11 July 1997 as the holder of a subclass 560 student visa. He returned to Sri Lanka between 29 December 1998 and 28 February 1999. On 7 May the applicant applied to the first respondent's (the respondent) department for a protection visa. On 11 October 2000 a delegate of the respondent determined that the applicant was not a person to whom Australia had protection obligations and refused the grant of a protection visa.
On 27 October 2000 application was made for review of the delegate's decision to the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate's decision by its decision dated 15 April 2002, such decision being handed down on 10 May 2002. On 14 June 2002 constitutional writ relief was sought in the High Court of Australia in application numbered M89/2002 in respect of the Tribunal's decision. On 30 July 2002 that application was remitted to the Federal Court of Australia by orders of Hayne J. On 13 December 2002 Goldberg J transferred the proceeding to this court.
The proceeding then became known as MZ 1265 of 2002 and was listed for hearing before Phipps FM on 16 September 2003. On 15 September 2003 an order was made by Registrar Efthim dismissing the application with a further order that the applicant pay the respondent's costs agreed in the sum of $5400. The orders made that day were orders by consent.
On 22 April 2004 the applicant again sought constitutional writ relief in the High Court of Australia in application number M86/2004 in respect of the same Tribunal decision and an enlargement of time to permit the application to be made was sought. On 3 March 2005 the respondent made application for an order that the application for an order nisi be dismissed with costs. On 13 April 2005 Hayne J remitted the application for an order nisi, including any application for necessary extension of time, to this court.
The summary of the applicant's claims and the Tribunal's findings as provided by the respondent in the respondent's contentions of fact and law is an accurate one and I adopt it. It is as follows:
The applicant, who is a resident of Colombo, claimed to have a well-founded fear of persecution in Sri Lanka due to his ethnicity as a Tamil and his support for Tamil refugees. He claimed that his family were adversely affected in the 1981 and 1983 ethnic riots when his father's business was attacked. He claimed that he was detained in 1996 as a consequence of the authorities finding information during a random search of his home. The information related to Tamil refugees which he had obtained when working for four weeks with a human rights group in 1994. He was held for two days during which he was interrogated and assaulted and released due to intervention by his school principal.
He claimed that he had been involved in Tamil associations in Australia and participated in protest activities and as a consequence when he returned to Sri Lanka for a holiday in January 1999 he was detained for six weeks and interrogated and tortured by the authorities. He claimed that he was released on reporting conditions after his father paid a bribe, but he left and returned to Australia. He claimed that after he left the authorities raided his home and discovered he had left. He claimed that in April 1999 a case had been filed against him and a warrant issued for his arrest.
The Tribunal accepted the applicant's father's business was attacked in 1981 and 1983, but found that those events did not indicate a present real chance of persecution. It accepted that the applicant assisted with Tamil refugees and it was possible he had obtained information for the human rights group. It did not accept that if the applicant had kept copies of that information that it would be of interest to the authorities for the reasons that he gave. It found that he was not detained in 1996 as he claimed. It further found that even if it was wrong in that finding, that did not indicate a present real chance of persecution.
The Tribunal rejected the applicant's claim that he was detained in 1999 when he returned to Sri Lanka on holidays. It found that claim was "concocted". In addition, it found the claim he was detained was implausible for the reasons that it gave. It found the authorities had no interest in his activities in Australia. It further rejected his claim that a case had been filed against him or that he was ever charged. It found that as a young Tamil male from Colombo with a father who had a business there he had someone who would vouch for him and he could readily explain his presence there. He would not be of interest to the authorities.
The Tribunal found that there was no real chance of persecution because of the applicant's Tamil ethnicity, any imputed or actual political opinion or any other Convention reason. He did not have a well-founded fear of persecution for any Convention reason if he returned to Sri Lanka.

Consideration

The applicant claimed that the Tribunal constructively failed to exercise its jurisdiction, failed to take into account relevant considerations, took irrelevant considerations into account and imposed its personal opinion rather than forming its opinion according to criteria postulated by the Migration Act 1958 (Cth) (the Act). No further particulars were provided by the applicant.
The applicant claimed that the Tribunal failed to assess the claims made by the applicant in light of country information to which the Tribunal made reference. The Tribunal referred to country information and considered it generally. The Tribunal was not bound to assess the applicant's claims in light of any particular item of country information. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 10 Gray, Tamberlin & Lander JJ said at 13:
Both the choice and the assessment of the weight of such material were matters for the Tribunal. The court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
And further, at 14:
The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
The applicant criticised the Tribunal taking into account information received by it from the Australian High Commission, with the Tribunal using such information to reject a claim made by the applicant in a letter produced before the Tribunal from his Sri Lankan lawyer as to proceedings which had been instituted against the applicant. The Tribunal considered the lawyer's letter and a further letter which sought to explain an issue which had been raised by the Tribunal pointing to inconsistencies between the information received by it from the Australian High Commission and that as set out in the lawyer's earlier correspondence.
In essence, the Tribunal did not accept the explanation given by the applicant's lawyer. That was a finding of fact open to the Tribunal on the material before it. The Tribunal was not bound to accept the explanation provided by the applicant's Sri Lankan lawyer. This complaint as raised by the applicant is an attempt at merits review. The making of findings of fact is a matter solely for the Tribunal. As the Full Court said in NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 at 9:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact; Abebe v Commonwealth (1999) 197 CLR 510 at 137.
I am satisfied the Tribunal carefully considered the applicant's claims and made findings in relation thereto, findings that were open to it on the evidence before it. It cannot be said
… that the Tribunal's reasons in this matter disclose an irrational, illogical or perverse process of reasoning to the extent that it may be concluded that its decision did not conform with the requirements of the Act. In those circumstances, consistent with the authorities, including Plaintiff S157 and Applicant S20, there would be such jurisdictional error as to enable the court to say that the decision was not made under the Act.
[SHJB v Minister for Immigration and Multicultural and IndigenousAffairs (2003) FCAFC 303 at 32].
The applicant claimed that the Tribunal's observation on what action by the applicant's father and lawyers on his behalf would have taken place if the applicant had been detained for six weeks was speculative and should not have been relied upon by the Tribunal. I accept the submissions for the first respondent that such comments by the Tribunal were additional to those reasons that the Tribunal had already given for rejecting the applicant's claim that he was detained in the manner claimed and that any subsequent case was made against him. It was open to the Tribunal to speculate in the manner in which it did and its observations were specifically stated to be in addition to those findings already made by it. The observations of the Tribunal and comment were but part of the assessment and evaluation of the evidence as carried out by the Tribunal. As Heerey J said in Thevendran v Minister for Immigration & Multicultural Affairs (2000) FCA 868 at para 28:
As part of its fact-finding function, the Tribunal was entitled to test the plausibility of the applicant's accounts by reference to its understanding of human nature and how people react in particular situations; whether the comment that the Tribunal made was one which would appeal to a judge is beside the point. The Tribunal was not obliged to refer to any evidence or other material upon which this comment was based. Indeed, it is in the nature of such a comment that it is not "based" on particular evidence or material, but rather is the Tribunal's own view of the inherent probabilities or otherwise of the applicant's account.
The applicant contends that the retention by the applicant of his passport was not relevant to his claims and was an opinion of the Tribunal. It was in the Tribunal's view illogical for the authorities to detain and mistreat the applicant for six weeks, then release him on being bribed, require him to report and then seek to charge him later, while all the time allowing him to retain his passport and visa thereby enabling him to depart Sri Lanka at will. The Tribunal was simply stating that it did not accept the applicant's evidence as credible on the matter.
Assessment of credibility is the function of the Tribunal par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parteDurairajasingham (2000) 168 ALR 407 McHugh J at [67]. The process of reasoning of the Tribunal leading to a finding of fact is not reviewable simply because the applicant or indeed the court disagrees with it.
Whilst I am satisfied that no jurisdictional error attends the decision of the Tribunal, there are other reasons for the dismissal of this application. This application must fail because of an issue estoppel. The matters determined in the earlier application were in substance the same as those raised in the present application. The doctrine of res judicata is also applicable. In Somanader v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 178 ALR 677 Merkel J held that in determining whether res judicata applies the primary question is whether the "cause of action" in the later proceedings is the same as that which was litigated in the earlier proceedings. He said on page 668 at paragraphs 42 and 43 the following:
The distinction between res judicata and issue estoppel was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 (Anshun) at CLR 597; ALR 7 where Gibbs CJ, Mason and Aicken JJ stated: "The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532 in these terms: 'In the first, the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law as alleged or denied, the existence of which is a matter necessarily decided by the prior judgment, decree or order. The doctrines of res judicata and issue estoppel have been held to apply to applications for judicial review: see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; 72 ALR 188 at FCR354-6; ALR 201-2 per Fisher J and FCR 365 ALR 211 per Ryan J.”
I find that res judicata does apply to the present proceeding, thus providing no discretion to this court to allow the proceeding to continue. The application of that doctrine is a complete bar to the claim as the cause of action has been extinguished by the earlier judgment (Port of Melbourne Authority v Anshu Pty Ltd (1981) 147 CLR 589, 612-613).
The applicant's claim to relitigate the same application for relief is an abuse of process in this matter. I accept the respondent's submission that the application is oppressive and vexatious, without merit and foredoomed to fail. Accordingly, the application will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 24 March 2006