MZWJG v Minister for Immigration
[2005] FMCA 57
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJG v MINISTER FOR IMMIGRATION | [2005] FMCA 57 |
| MIGRATION – Judicial review of decision of Refugee Review Tribunal – protection visa – fear of criminal harm by individuals not a Convention reason – previous determination by Federal Court – Anshun estoppel – res judicata. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 474
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and 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
| Applicant: | MZWJG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 602 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 31 January 2005 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr C. Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application filed 26 May 2004 be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 602 of 2004
| MZWJG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an ex tempore judgment arising from an application filed by the applicant on 26 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 30 March 1999 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
The history
The applicant is a citizen of India. He came to Australia on 28 October 1995 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 January 1996.
On 8 May 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 5 June 1997.
The applicant was assisted by Mr Harold Jones to prepare his application to the Minister and also his application to the Tribunal. The applicant was unrepresented at the Tribunal hearing, at which he stated that his application did not contain the claims he wished to make (because his migration agent did not correctly record his claims), and then proceeded to outline his reasons for seeking asylum.
The applicant is of Hindu background from the Punjab area of India, and he belongs to the caste of Khastyrias. The Punjab is a Sikh-dominated state. The applicant came to Australia to attend his brother’s funeral.
At the Tribunal hearing, the applicant claimed that he cannot return to India as he fears physical violence will be perpetrated against him by members of the family and associates of a Mr B S. The applicant stated that his own extended family and that of Mr Singh have been involved in a violent vendetta since the applicant’s father was beaten up in 1978. The applicant claimed to have suffered at least one beating as a result and that persons associated with Mr Singh had taken over his home. The applicant claimed that he feared further violence if he returned to the Punjab. On page 6 of the Tribunal’s reasons, it was claimed that:
He believes they will kill him because if he returns he will ask them for his home.
The applicant claimed that he was in hiding as a result of his fear for a few months prior to travelling to Australia.
The applicant also claimed that the Indian government did not show any interest in poor people, and that the upper Indian classes exploit the lower classes. The applicant made no claims in respect to religious persecution by reason of him being a Hindu living in a Sikh dominated state.
In the decision made by the Tribunal on 30 March 1999, 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. Specifically, the Tribunal held that the applicant did not have a well-founded fear of persecution for a Convention reason, whilst finding as follows:
a)the Tribunal accepted there was a genuine misunderstanding due to language difficulties in relation to the applicant’s claims as set out in his original written applications;
b)the applicant is a member of the second highest-ranked Hindu caste, being Khastyrias;
c)the applicant’s stated fear of harm by the Singh family was implausible, and there was no evidence of the Indian authorities condoning harm against the applicant;
d)the alleged threat of criminal harm does not constitute a Convention reason;
e)India is a democratic country with an independent judiciary; and
f)the applicant has sufficient skills and resources in India to be able to relocate to another part of the country in order to escape possible harm.
On 10 December 1999, the applicant joined a class action in the High Court of Australia. I accept and adopt paragraphs 4 and 5 of the respondent’s contentions of fact and law filed on 21 December 2004 in respect to that proceeding:
On 10 December 1999, the applicant joined the “Muin and Lie” representative class action in proceeding S89 of 1999 in the High Court of Australia. The applicant subsequently filed in the High Court an application for an order nisi. The draft order nisi contained five unparticularised grounds of review which in substance claimed (a) that the decision of the RRT [the Tribunal] was “beyond its jurisdiction”; (b) that there was a breach of the rules of natural justice; (c) that “the procedure that was required to be observed” had not been observed; and (d) that the decision of the RRT “was an improper exercise of the powers conferred by the enactment in pursuant of which it was purported to be made.”
The application for an order nisi was remitted to the Federal Court and was refused by Emmet J on 30 April 2004 on the basis that the material before his Honour did not disclose an arguable case for the grant of the relief sought.
On 26 May 2004, the applicant lodged an application in this Court, being MLG 602 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant also filed contentions of fact and law on 15 November 2004. Summarily, the applicant contends that:
a)the Tribunal made a jurisdictional error by misconstruing the definition of a refugee;
b)the Tribunal failed to consider whether the applicant had a well-founded fear of persecution because it felt itself bound by s.91S of the Migration Act; and
c)the Tribunal did not consider the likelihood that the applicant in particular would be protected by the State.
The respondent’s contentions of fact and law, which were filed on
21 December 2004, rebutted the applicant’s contentions, arguing that:
a)the present proceedings are an abuse of the Court’s process by reason that the application is in effect one for constitutional writs and Emmet J of the Federal Court has already refused an application by the applicant for constitutional writs in relation to the same Tribunal decision;
b)the applicant is estopped “from relying upon matters which he could reasonably have relied upon in support of his earlier application” by reason of the principle of Anshun estoppel;
c)the applicant has not properly particularised his claim that the Tribunal misconstrued the definition of a refugee and the “boundaries of persecution”;
d)the Tribunal did not make a decision by reason that it felt bound by s. 91S of the Migration Act, which was not in effect at the date of the Tribunal’s decision nor was it referred to in that decision;
e)“there is no merit in any of the unparticularised grounds in the application”;
f)the applicant filed the present application over five years after the Tribunal made its decision, and has provided no explanation for the delay; and
g)the Tribunal’s reasons disclose no jurisdictional error.
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 and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The applicant has not attended this day to prosecute the application filed by him on 26 May 2004. In my view that merely enforces the finding that this application is an abuse of process. The original application was dismissed by the Tribunal on the basis that it did not accept his claim was plausible. This application is in effect one for constitutional writs and Emmett J of the Federal Court of Australia has already refused an application by the applicant for constitutional writs in relation to the same decision. The doctrine of res judicata is applicable.
The applicant is further estopped from relying upon matters which he could reasonably have relied upon in support of his earlier application by reason of the principle of Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
The applicant has not properly particularised his claim that the Tribunal misconstrued the definition of a refugee and the “boundaries of persecution”, and as I have already indicated he has not appeared this day to elaborate on that claim. There is no merit in this ground.
The Tribunal did not make a decision by reason that it felt bound by s.91S of the Migration Act as it was not in effect at the date of the Tribunal’s decision nor was it referred to in its reasons.
The current application was filed five years after the Tribunal made its decision and the applicant has provided no explanation for the delay.
In all the circumstances of this matter I am satisfied that there has been no jurisdictional error established and the application should be dismissed with costs. I shall make orders accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Julia O’Brien
Date: 31 January 2005
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