MZWFI v Minister for Immigration
[2005] FMCA 320
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFI & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 320 |
| MIGRATION – Application to review decision of Refugee Review Tribunal refusing grant of protection visas – previous application for judicial review dismissed for non-compliance – subsequent application for judicial review by same applicants in respect of the same decision dismissed by consent – notice of motion for summary dismissal – whether res judicata or Anshun estoppel apply – request for Ministerial intervention under s.417 of the Migration Act 1958 (Cth) – application dismissed – costs. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192 Spencer Bower, Turner & Handley, The Doctrine of Res Judicata (3rd edn, Butterworths, London, 1996) |
| Applicants: | MZWFI & MZWFJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 395 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 25 January 2005 |
| Date of Last Submission: | 25 January 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2005 |
REPRESENTATION
| Counsel for the Applicants: | Ms J.M. Garner |
| Counsel for the Respondent: | Mr P.R.D. Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicants pay the costs of the respondent as agreed and failing agreement as determined upon application made to the chambers of Federal Magistrate Hartnett.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 395 of 2004
| MZWFI & MZWFJ |
Applicants
And
| MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
History
The applicants, husband and wife, are citizens of Fiji who arrived in Australia on 5 May 2001 accompanied by their two daughters. On
8 May 2001 they lodged applications for protection visas. The applicants claimed to fear persecution by reason of their Indian ethnicity and political opinion.
On 16 January 2002 a delegate of the respondent refused to grant a protection visa to the applicants.
The applicants applied to review the delegate’s decision by the Refugee Review Tribunal (RRT). They were invited to attend the hearing but declined to do so. On 10 October 2002 the RRT affirmed the delegate’s decision.
On 22 November 2002 the applicants commenced proceedings in the High Court of Australia pursuant to section 75(v) of the Constitution (proceeding A285 of 2002) seeking writs of mandamus, prohibition and certiorari with respect to the Tribunal decision. Those proceedings were remitted to the Federal Court (proceeding S247 of 2003) and dismissed for non compliance with orders on 18 July 2003.
On 28 August 2003 the applicants commenced proceedings (No. MZ935 of 2003) in this Court again seeking review of the RRT decision. That proceeding was dismissed by consent by Registrar Efthim on 14 October 2003.
On 22 April 2004 the applicants made application in the current proceedings (No. MLG395 of 2004). Such application was amended on 6 January 2005 but again essentially seeks judicial review of the RRT decision of 10 October 2002. The application is made pursuant to s. 39B of the Judiciary Act 1903 (Cth). The grounds of the claim as made by the applicants are set out in paragraph B of that application. The applicants seek writs of certiorari, prohibition and mandamus.
By notice of motion dated 8 July 2004 supported by affidavit of Anthony David Fell affirmed 8 July 2004 the respondent seeks orders dismissing the current proceeding on the basis that it is an abuse of process; and/or is frivolous or vexatious; and/or discloses no reasonable cause of action. The application is made pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth).
The amended application sets out 5 points of argument which are in essence as follows:
a)The RRT ignored various specified matters relevant to the context in which the applicant claimed he was evicted from his home.
b)The RRT did not apply the so-called “What if I am wrong” test.
c)The RRT did not “specifically” apply section 91R of the Act.
d)The RRT failed to consider whether the applicant was a member of a “particular social group”, being an “Indo-Fijian tenant of an indigenous Fijian landlord whose lease was not renewed by the said landlord” and at risk of persecution for reasons of such membership.
e)The RRT did not advise the applicants it would rely on certain materials not relied upon by the original decision-maker.
The Reasons of the RRT
The Tribunal noted firstly that family members are derivatively entitled to a protection visa on the alternative basis that they are members of the same family unit as an applicant who is found to be a refugee. Only the first named applicant made specific claims under the 1951 Refugees Convention as amended by the 1967 Protocol Relating to the Status of Refugees. Thereafter the first named applicant was referred to as the applicant.
The applicant entered Australia on a visitor visa. The applicant lodged a protection visa application and claimed to fear discrimination, harassment and torture from the Fiji authorities as a consequence of his being an active member of the Fiji Labour Party (FLP) and because of his Indian race.
The applicant claimed the authorities had evicted him from his house and condoned and connived with his employers for him to lose his job. He claimed the authorities had made it impossible for him to earn a living in Fiji and impossible for his children to attend school. The applicant claimed that despite reporting to the police the stoning of his house on several occasions; the attacks (including the rape of his wife) upon him and his family by a group of ethnic Fijians; and the looting and damaging of their property, the police took no action to assist him.
The RRT’s findings and reasons for decision were as follows and accurately set out in the respondent’s contentions:
a)The RRT accepted that during the 12 October 2000 incident the applicant wife was molested and her clothes torn but found that it could not be satisfied on the evidence before it that she was raped;
b)The RRT found the late claim that the children of the applicants were abused and discriminated against at schools to be vague and lacking in detail, and placed no weight on it and did not accept it;
c)The RRT did not accept the late claim that the applicants’ house had been burnt down and found it implausible that this would not have been mentioned before, if it had occurred;
d)The RRT did not accept that the authorities condoned the applicant husband’s dismissal from his work or the attacks on his house and noted the absence of details and information in support of the claims. The RRT noted that this claim (of condonation by the authorities) was not supported by country information, which indicated that the authorities moved quickly to restore security for all citizens after the coup, and which indicated that there had been considerable unemployment in Fiji following the coup and that the economy was depressed;
e)On the question of the applicant’s dismissal from his employment, the RRT noted, if the applicant was the only person dismissed, he was discriminated against when dismissed on the basis of attracting adverse attention of ethnic Fijians, but this did not amount to persecution because there was no evidence that he was prevented from obtaining employment elsewhere by the authorities or denied the right to engage in lawful employment;
f)The RRT found that the eviction of the applicant did not amount to persecution;
g)As to the concerns of the applicant about his security and safety, and the looting of possessions, the RRT reviewed the country information concerning the experience of Indo-Fijians after the Speight coup in May 2000 and the possibility of violence and intimidation being directed at persons involved in political activities. The RRT found that:
i)the applicants did not contact the Human Rights Commission, and if they had done so, the complaint would have been followed up by the authorities and the perpetrators, if found, would have been prosecuted;
ii)while the police may not have acted promptly in relation to the incident, the family was able to return to the house for a few weeks and there is nothing in the police report to indicate that the authorities are unwilling to provide assistance to Fijian Indians;
iii)country information since 2001 indicated that security and safety were under control, referring to the extracted country information;
iv)the applicants have low political profiles not presenting as possible targets for intimidation or harassment;
v)given the low level and limited nature of their political involvement, their lack of any involvement since 1999 and the facts that they have now vacated the house which was located on native Fijian land, the applicants do not face persecution because of the past political activity;
h)The RRT found that education was available for the applicants’ children, that although employment opportunities were limited, prospects were better for those with professional and skilled trade qualifications (the applicant husband had been a salesperson for a carpentry firm) and that rental accommodation is available;
i)The RRT stated: “Although the Tribunal accepts that Fijian Indians such as the applicant and his family may have experienced harassment at the time of the coup, it accepts as authoritative the above country information that safety and security are now long under control”;
j)The RRT concluded its findings and reasoning in a passage in which it:
i)accepted country information to the effect that law and order had been restored;
ii)found the applicants’ claims lacked substance and did not accept any Convention based reason for their claimed fear, or the claim that they were in fear for their safety;
iii)found that if the applicants were subject to any criminal act in the future the current authorities would protect them;
iv)found that the particular adverse activities against the applicant arose over the owner of the house he had leased trying to regain the use of it, and that this had now occurred, so there was now no reason why the applicant would face harassment from the owner or his followers;
v)found that the applicant’s claims to fear persecution which would affect his ability to live and work in Fiji safely were not supported by the country information;
vi)found that the applicants do not face a real chance of persecution in Fiji as Indian Fijians and followers of and past local workers for the FLP.
Consideration
Section 417 requests
The evidence of the first named applicant went to that part of the history of the applicants’ claims wherein the applicant wife wrote to the Minister requesting that he exercise his public interest power under section 417 of the Migration Act 1958 (Cth) (the Act). That request to the Minister was made following the 18 July 2003 dismissal by the Federal Court of the applicants’ first application for judicial review commenced in the High Court. It was only after the request to the Minister under s.417 was refused that the applicant again approached the Court in the next application filed in the Federal Magistrates Court. Following the dismissal of those proceedings on 14 October 2003 in this Court the applicants’ migration agent wrote to the Minister on behalf of the applicants and pursuant to s.417 of the Act before a refusal by the Minister lead next to the filing of the pending application.
The reason for the approach to the Minister being made without a backdrop of current litigation was that the applicants had been advised that the Minister would not consider their application whilst the family were engaging in current litigation action. Thus after the 18 July 2003 dismissal of their proceedings the parties made a personal request of the Minister being a letter from the wife and received by the Department on 29 September 2003. That application for an exercise of power by the Minister under s.417 of the Act was refused as conveyed to the parties in letter from a Mr Hargraves on 6 October 2003. After the 14 October 2003 dismissal by consent of the applicants’ application the parties requested Mr Habib, their agent, to make a further request to the Minister on their behalf. Mr Habib duly did so on the same date the parties’ earlier proceedings in this Court were dismissed by consent – and some 8 days after they had received a letter advising them of their inability to have the request considered by the Minister whilst litigation was pending.
I am satisfied on the evidence given by the first-named applicant that the applicants understood that they could not have their s.417 request considered at the same time as having a court case on foot challenging the very decision on the basis of which they were making a request of the Minister pursuant to s.417 of the Act. The applicants authorised their migration agent to make a request to the Minister understanding that to do so they would need to conclude on foot proceedings. Although the first-named applicant cannot say with any certainty what exactly he authorised his migration agent to do, the above authorisation to make a request of the Minister on the evidence was clear. I accept the respondent’s submissions that the Court cannot accept that the consent disposition of the matter on 14 October 2003 was done without the applicants’ actual authority because the applicant’s evidence is that he cannot remember all the things that he authorised Mr Habib to do.
Notice of motion
In the application commenced in the High Court on behalf of the applicants the grounds relied upon were:
a)breach of natural justice;
b)error of law;
c)failure to observe procedures;
d)improper exercise of power;
e)no evidence to justify the decision;
f)decision was contrary to law.
No particulars were provided. In the application earlier commenced in this Court the grounds relied upon were:
a)the respondent failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice;
b)the respondent exceeded its jurisdiction.
No particulars were provided. In this application filed 22 April 2004 currently pending, the applicants relied upon the following grounds:
a)denial of natural justice;
b)decision was unreasonable;
c)failure to take all relevant factors into account.
No particulars were, at the time of filing, provided. Particulars have been provided in the amended application filed 6 January 2005.
In each of the two previous applications, the applicants have been represented by Solicitors. The earlier application in this Court was dismissed by consent. Such orders by consent of the parties are as efficacious and binding as those pronounced after a contest (Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192 at [36]).
In affidavit material relied upon by the applicants each of the husband and wife blamed the effective discontinuance of the two earlier proceedings on the ineptness of their migration agent who was, as at
25 August 2004, not listed on the Migration Agents Registration Authority website as a registered migration agent as deposed to by Ms Ally Bonakdar, a person assisting the applicants and located at the Asylum Seeker Resource Centre.
I accept the respondent’s submission that the grounds raised in the present application are essentially the same as those raised in the previous application, notwithstanding the lack of particulars in the previous application.
To the extent that the present application raises any new grounds, these grounds should reasonably have been raised in the previous application. In the absence of special circumstances, the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the first proceeding (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
The assertion of the applicants that they were misled by their migration agent and that their legal representatives acted without authority is not an admitted fact, and no evidence has been provided to support it. I accept that Anshun estoppel is applicable to this case.
In Somanader the application at first instance contained a number of broad grounds of legal error but no particulars. His Honour Merkel J found that such an application, if dismissed by consent, gives rise to a res judicata in relation to all possible arguments in support of those heads of legal error enumerated, regardless of the absence of particulars. His Honour said (at [66] to [67]):
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 in the present case.
As Brennan J noted in Anshun (at 612):
"The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.
Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts."
In Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 his Honour Goldberg J said (at [18] and [24] to [25]):
Res judicata
The fact that the application for review was dismissed by consent, is not a bar to the Minister being able to raise a claim of res judicata. An order made, or a judgment given, by consent binds the parties to the judgment or order as effectively as if the judgment had been given, or the order made, after a fully contested hearing: Re South American & Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 at 45; Spencer Bower, Turner & Handley, The Doctrine of Res Judicata (3rd edn, Butterworths, London, 1996) at pars [38]-[40]. The only difficulty that can arise in determining whether a consent order raises an issue of res judicata, is in specifying the "res", or the matter, or the cause of action which has already been determined by the Court: Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502.
Anshun estoppel
Even if the doctrine of res judicata did not apply I am satisfied that the applicant should be estopped from bringing the present proceeding by reference to the Anshun principle explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
An Anshun estoppel arises where the subject-matter now sought to be raised was so relevant to the subject-matter in the first proceeding that it would have been unreasonable not to raise it in the earlier proceeding.
In the case before me the grounds of review dismissed by consent on 14 October 2003 were broad and not particularised. It was reasonably available to the applicants to make whatever arguments they wished to make in relation to the decision under review in that previous (dismissed) proceeding. The dismissal of the previous proceeding by consent gives rise to an Anshun estoppel in relation to all grounds that might reasonably have been argued in that proceeding.
The Court retains a discretion not to apply the Anshun principle in special circumstances (see Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38]). I do not consider that any of the circumstances raised by the applicants in written submissions (dated 25 January 2005) constitute special circumstances warranting a disregard of the Anshun principle.
Accordingly, the application must be dismissed and the applicants pay the costs of the respondent.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 16 March 2005
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