MZWGJ v Minister for Immigration
[2005] FMCA 269
•20 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGJ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 269 |
| MIGRATION – Extension of time – Anshun estoppel – re-agitation of facts. |
Migration Act 1958
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)
Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589
| Applicants: | MZWGJ & MZWGK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 489 of 2004 |
| Delivered on: | 20 January 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 20 January 2005 |
| Judgment of: | O’Dwyer FM |
REPRESENTATION
| Applicants: | MZWGJ appearing in person |
| Counsel for the Respondent: | Ms S E Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 10 May 2004 and amended by a further application on 10 September 2004 be dismissed.
The Applicants’ pay the costs of the Respondent fixed in the sum of $5,800.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 489 of 2004
| MZWGJ & MZWGK |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from the transcript)
This proceeding comes before the court on an application filed on 10 May 2004, which was subsequently amended by a further application filed on 10 April 2004, in which the Applicants sought to review the decision of the Refugee Review Tribunal (the Tribunal) made on 27 March 1997 to refuse protection visas.
There was a considerable delay between the handing down of the Tribunal's decision and the filing of the application on 10 May 2004, a period in excess of seven years.
One explanation for the delay is that the Applicants became parties to a class action in the High Court. I can understand, and perhaps may have been persuaded that an involvement in an action of that nature and at that level, could amount to a reasonable explanation of why other action may not have been taken by the Applicants to pursue their rights and try to redress the wrong they believe has been done to them.
The period in which an application for review could be lodged, at the time that the Tribunal's decision was given, was 28 days.
The Applicants joined the class action in Muin, I am told, on 16 July 1999. I questioned the Applicants as to what happened between
27 March 1997 and their joining the class action in July 1999.
The response, in effect, was that their interests were in the hands of their legal representatives at the time. They were unable to provide me with any satisfactory explanation for the delay, which was in excess of two years, between the Tribunal's decision and joining the class action.
The burden falls on them, in these circumstances, where they ask for an extension of time, to persuade me that there was good reason for the delay that would warrant me exercising my discretion to allow them to issue the proceedings out of time. As I said, I may have been persuaded by their involvement in the Muin case (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
(8 August 2002)), but there is no satisfactory explanation as to why they did not pursue their rights at law immediately following the Tribunal’s decision, and further, there is no explanation of why there is that significant gap of some two years in which nothing was done before they became parties to the class action. In those circumstances, I am not prepared to grant an extension of time and the application issued on 10 March 2004 is therefore barred.
Be that as it may, there is also the contention of the Respondent that the principles involved in an Anshun estoppel apply to this proceeding (see Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589). I am satisfied that those principles do apply and that there were earlier opportunities offered, or available, to the Applicants whereby they could have pursued, ventilated and argued the matters they presently hope to argue before this court. A failure on their part to utilise that earlier opportunity, in my view, reasonably precludes them from now attempting to do so. I am satisfied that the nature of the earlier proceedings are such that it was reasonable that all of the matters that should have been canvassed, be canvassed on those occasions and it would have been reasonable for them to do so then.
I have carefully listened to the Applicants express their concerns about returning to Sri Lanka. I have heard that, from their understanding, the situation in Sri Lanka represented a risk to them, even to the extent where they were not prepared to return to attend the funerals of their parents. Those concerns, in my view, do not amount to a special circumstance that would warrant me not applying the Anshun estoppel principles to this case.
Finally, in addition to having regard to my earlier determinations on the question of an extension of time and the Anshun estoppel, it is apparent from a reading of the Tribunal's decision and the contentions of fact and law submitted by the Applicants, and the amended application filed by the Applicants, that there is no basis for the assertion by them, that the Tribunal had erred. It is clear from the decision that the findings of fact made by the Tribunal were open to it based upon the evidence before the Tribunal and that there is probative logic in the Tribunal's reasoning.
In my view, the Applicants in this proceeding wish to re‑agitate the facts and circumstances of their claims and seek from this court, in effect, a merits review of the earlier Tribunal decision. That, as a matter of law, would be an impermissible course of action by this court as it does not have jurisdiction to determine a merits review.
Having regard to the above, the application filed on 10 May 2004 and subsequently amended in a further application filed on 10 September 2004 should be dismissed.
In respect of costs, whilst I appreciate there have been a number of costs orders made in the past and that there are restrictions on the Applicants’ capacity to earn income to pay any costs ordered, I am nonetheless bound in these circumstances to make a further order for costs. Having regard to the nature of the orders for costs that this court does make in these types of proceedings, the amount claimed of $5,800.00, I am satisfied, is fair and reasonable. There will be an order that the Applicants pay the Respondent's costs fixed in the sum of $5,800.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 20 January 2005
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