MZWJL v Minister for Immigration

[2005] FMCA 897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWJL & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 897

MIGRATION – Protection visa – whether res judicata applies – no error.

Migration Act 1958

Gibbs v Kinna [1999] 2 VR 19

Applicants: MZWJL & MZWKG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 605 of 2004

Judgment of: McInnis FM

Hearing date: 1 June 2005

Delivered at: Melbourne

Delivered on: 1 June 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr W.S. Mosley

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application as amended on 26 April 2005 be dismissed.

2. The applicants shall pay the respondent's costs fixed in the sum of $6500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 605 of 2004

MZWJL AND MZWKG

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the applicants, who are husband and wife, seek judicial review of a decision by the Refugee Review Tribunal (the RRT) dated 25 July 2000.  The RRT had affirmed a decision of a delegate not to grant to the applicants a protection visa.  The RRT sets out in some detail the background of the applicants.

2. At the time of the RRT decision, the first-named applicant was then a 31‑year‑old male citizen from Sri Lanka who had arrived in Australia on 8 August 1998 accompanied by his wife, the second-named applicant.  They both lodged applications for a protection visa with the Department on 18 September 1998.  It is noted that it is the first applicant that made specific claims in relation to being a refugee.  Those claims were set out in an accompanying statement with the application.  As I have indicted, the delegate decided to refuse the protection visa and did so on 9 October 1998.  That then prompted an application to the RRT on 4 November 1998.  The RRT conducted a hearing on 6 July 2000 and in its decision dated 25 July 2000 handed down on 11 August 2000, as I indicated earlier in this judgment, it affirmed the delegate's decision to refuse to grant a protection visa to the applicants.

3. The applicant before this court has relied upon an amended application filed 26 April 2005 and has otherwise relied upon contentions of fact and law filed the same day.  The applicant is unrepresented.  The first applicant appeared this day and although the second applicant has not appeared, I accept the application should proceed in the presence of the first applicant, particularly having regard to the fact that he is the one who in fact claimed refugee status.  The respondent has relied upon contentions of fact and law filed on 20 May 2005.

4. The chronology of events in this matter is significant in terms of court proceedings.  A substantive contention advanced for and on behalf of the respondent is that in this application the doctrine of res judicata should apply.  That chronology includes that on 11 September 2000 the applicants sought judicial review of the RRT decision by an application for an order of review in the Federal Court of Australia in proceedings number S 97 of 2000.  On 9 February 2000 Mansfield J of the Federal Court dismissed the application with costs.  In dismissing the application on 9 February 2001, his Honour provided reasons for judgment set out in the court book (at page 97).  His Honour's reasons set out the significant issues considered as follows:-

   “20 The first was that the Tribunal had misconceived the definition of persecution in the Convention. It was contended that the Tribunal as a matter of law regarded the absence of an attempt to attack the applicant subsequent to 1994 as requiring a finding that he had not been mistreated so as to have experienced persecution in the past, and so leading to the conclusion that there was no risk or no real risk of him experiencing persecution in the future. In support of that claim the Court was referred to a number of passages in the Tribunal's reasons in that section headed `Discussion and Findings'. I have carefully considered those passages. It is put, as I understand the submissions, that the Tribunal placed considerable weight upon the fact that subsequent to 1994 there had been no attack upon the applicant either at his home or at his work, and no attempt to attack the applicant either at his home or at his work in circumstances where there had been ample opportunity by the particular PA politician, whom the applicant has criticised, or by those acting on behalf of the PA, to have done so. It is contended that the emphasis of the Tribunal upon looking to see whether there had been any such attack in the past involved the Tribunal proceeding on the basis that for the applicant to have suffered persecution in the past, he must have sustained significant physical attack. It is then contended that the Tribunal erred in law in requiring there to have been a significant physical attack upon the applicant before persecution could have been found.

   21 The respondent acknowledges that the existence of a well-founded fear of persecution for a Convention reason does not require that the applicant fear physical attack involving significant physical injury nor that the applicant had experienced physical attacks involving significant physical injury in the past. So much is clear. Reference may be made to the decisions of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 particularly per McHugh J at 430-431, and to his Honour's remarks in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259, and most recently to his Honour's remarks in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585 at 599-600 [61-62] and [65].

   22 However, in my view the Tribunal did not fall into the error which the applicant contends. As I read its reasons, it was simply addressing the nature of the claims which the applicant asserted. That is, his particular claim was that if he were to return to Sri Lanka he would be subject to attacks involving the risk of significant physical violence, if not death, from his political opponents. Given the nature of that claim, in my judgment, the Tribunal did not err in addressing his claims of having experienced such attacks in the past. Nor did it err, having found that he had encountered some violence in 1994, in considering whether he had suffered any such violence between 1994 and August 1998 when he arrived in Australia, other than the periods he had been working overseas. Those sorts of considerations are relevant to determine whether the applicant was or might be at risk of the sort of event which he said he feared, that is to determine whether the fear which he now expressed was well-founded.

   23 The Tribunal made the observation on a number of occasions that the politician concerned, or PA supporters, had had the opportunity to cause the applicant to be attacked in the years subsequent to 1994 and had not taken that opportunity, as indicating that there is no longer a real risk that they might do so in the future. In my judgment the Tribunal was simply responding to the applicant's expressed claims. I am not satisfied that the Tribunal misdirected itself in law as to the meaning of the expression "persecution" or as to the application of that concept in its consideration of the facts.

   24 The other aspect of the claimed error of law, it is submitted, is that the Tribunal erred in applying the test of whether there was a well-founded fear of persecution for a Convention reason by wrongly imposing upon the applicant an "evidentiary onus of proof" which was improper to impose. In my judgment, the Tribunal did not err in that way. It was incumbent upon the Tribunal to consider the applicant's claims to have a well-founded fear of persecution if he were now to return to Sri Lanka. To do that, it was appropriate for the Tribunal to address his claims as to the experiences which he had incurred in the past, and to make findings about them.”

5. It is noteworthy that after the decision delivered by Mansfield J on 9 February 2001, the applicants became members of what has become known as the ‘Muin Lie’ class action.  Orders were made by Gaudron J of the High Court of Australia on 25 November 2002 and through their then solicitors the applicants filed an affidavit on 30 May 2003 annexing a draft order nisi which was remitted to the New South Wales district registry of the Federal Court.  The draft order nisi sought the issue of constitutional writs in relation to the RRT decision.  On 30 April 2004 Emmett J of the Federal Court of Australia refused the order nisi.  Thereafter, on 26 May 2004, the applicants made application for review in this court.

6. In brief terms, I accept the summary of the tribunal's findings and the claim as set out in the respondent's contentions in the following terms.  As indicated earlier, only the applicant husband has made a convention claim, the claim to have a well‑founded fear of persecution due to his political opinion as a member and supporter of the Sri Lankan political party, the United National Party (UNP).  He claimed to have joined the party in late 1989 following a brief association with the Janatha Vimukthi Peramuna Party (JVP), earlier that year.  He claimed he was an active party member from 1989 until he left Sri Lanka.  He had taken part in various campaigns and became a youth leader.  On one occasion in 1994 he gave a speech critical of an opposition party, the Peoples Alliance (PA), candidate, Mr Rupersinghe, calling him a murderer.  He had been attacked on more than one occasion as a result of his political views and warned to quit the UNP.  On one occasion he was hospitalised.  He was overseas for the period of 1995 to 1997.  He and his wife had received threats.  He was also accused by the police of supporting the Liberation Tigers of Tamil Eelam (LTTE) and he claimed he had been detained and mistreated by them.  He claimed that Mr Rupersinghe wants revenge and he believes he will be detained, threatened and possibly killed if he returns.  He claims the police will not protect him.

7. It is clear before this court today that the applicant has reaffirmed those claims and has expressed his concern that the RRT in reaching its decision and in not accepting the applicant's application had failed to consider the reality of what might occur to the applicant should he return to Sri Lanka.  In its findings the RRT concluded that the applicant husband had indeed been involved with the UNP broadly as claimed, but found that he had not been politically active since 1994.  In its decision it makes detailed findings based upon the claims which have been made.  It is not necessary for me to recite in detail those findings but it is clear from a proper reading of the RRT decision that the issues agitated for and on behalf of the applicant were indeed the subject of questions, and answers to those questions were given.  The RRT then considered the factual issues.

8. In his decision delivered on 9 February 2001 Mansfield J sets out a summary of the findings of the RRT which are relevant as follows:-

   “8 The Tribunal accepted that he had engaged in those activities and that he had encountered some violence at the time and that he had run away for a period of time as a result. However, because he had then returned to his previous residence, maintained his work and had not suffered subsequent incidents of attack by persons apparently acting at the behest of that candidate of the PA, or at the behest of the PA, the Tribunal did not accept that that politician had subsequently used his influence to damage the applicant, or to seek to damage the applicant either at his home or at his work. It concluded that there was therefore no real chance, if the applicant were to return to Sri Lanka now, that he would run any risk of persecution in the future by such conduct instituted by that candidate, or by the PA.

   9 The applicant claimed also that in 1994, in the course of his employment, he was detained by police for two days after a strike and was then released. He was, at the time, a union secretary. The Tribunal accepted that he had been detained as a result of strike activities at that employer but found, as the applicant said himself, that he was soon released and that he returned to work. The Tribunal was not satisfied that that incident was related to his activities on behalf of the UNP which, at the time, was still in power. It was also of the view that, even if that incident occurred because of the applicant's position as a union secretary (which the Tribunal regarded as plausible), the applicant had nevertheless kept his job and had maintained his employment thereafter for a considerable period of time without further adverse consequences. It did not think that there was any real risk that he would suffer adverse consequences in the future because of his union activities, or in relation to his involvement in that strike.

   10 The applicant then claimed that in March 1995 he had been attacked while walking home by people who warned him to stop his political activities. He was concerned about that attack and went abroad to work. He returned to Sri Lanka in January 1997, he said because his father was ill and because he was to marry. In fact, he did marry in Sri Lanka in the course of that return from working overseas. He told the Tribunal that that was a quiet wedding and there was no reception because he wanted to keep his presence in the country quiet. He claimed that he feared further repercussions because of his UNP association if his presence became well known. He was then absent from Sri Lanka again on work for a time.

   11 The applicant next returned to Sri Lanka in about April 1997. He said that he had been informed that his wife, who had remained in Sri Lanka, had experienced threatening behaviour. Upon his return, the applicant and his wife moved to a new area in Colombo and he took up a new job. He claimed that, in November 1997, he was detained by police and mistreated after a bomb explosion in a hotel in which he had previously been employed. The Tribunal accepted that it was plausible that he had been detained and questioned on that occasion because a bomb had exploded in a hotel in which he had previously been employed. He was, however, released after a few days and he remained in Sri Lanka for some eleven months after that time without further trouble (subject to one further claim of the applicant). The Tribunal found that that occasion represented a routine investigation of the applicant, and others, in the course of investigating the cause of the bombing which was suspected to have been done by the LTTE, but that the applicant was cleared of suspicion. The Tribunal concluded that there was no reason to think that that particular incident carried any risk of any further consequence to the applicant, or that it was prompted by any involvement he then had with the UNP.

   12 The applicant then claimed that, early in 1998, he saw people with swords and poles trying to force open his door. He and his wife tried to escape, but they were unsuccessful. He was beaten up and warned not to be involved in the forthcoming 1999 provincial elections for which he had been nominated as a candidate for the UNP. He said he was hospitalised, and his wife suffered a miscarriage as a consequence of the shock of that attack. They decided then to escape from Sri Lanka. In June 1998, they received a visa to enter Australia. However, due to illness of his wife, their departure from Sri Lanka was delayed for some months.

   13 The applicant in general claimed, as the Tribunal noted, that the politician about whom during the 1994 election he had spoken adversely was still bent on gaining revenge against him for that personal criticism. He claimed that he would be detained, threatened and possibly killed because he is a well-known UNP member and because of that criticism. He further claimed that the police would not protect him if he were to return to Sri Lanka.

   14 The Tribunal was not persuaded that the applicant had been politically active since 1994. Nor did it accept that he was a candidate for the 1999 regional election. Nor did it accept that, in 1998, he had been beaten and warned not to participate in that election. The Tribunal was satisfied that the applicant had not been involved in public political processes since 1994. There were a number of reasons why the Tribunal reached that conclusion. They included the fact that the applicant was ignorant of any details of the December 1999 presidential election, including the fact that the president had been the victim of a terrorist attack. The applicant was unable to name any PA candidates in the election in which he said he was a candidate, including being unable to name his direct opponent. The applicant presented a letter from a UNP member to confirm his candidacy but the letter did not do so and in significant respects did not confirm the applicant's claims in circumstances where it might have been expected to do so. Moreover, the applicant (as the Tribunal found on material which was available to it) had lived in the same houses for the lengthy periods he was in Sri Lanka with his wife, as he had reported to the Tribunal, and he had had jobs which were or were likely to be readily known to those who may have wished to assail him. The fact that he had not suffered any adverse consequences by way of threats or attacks, since the incidents which the Tribunal had accepted he had experienced up to and in 1994, indicated to the Tribunal that he was not a target for the sort of political violence which he feared.

   15 The Tribunal considered independent country information in arriving at its conclusion. It noted that there is still some pervasive violence in Sri Lanka, including human rights abuses and police mistreatment. It noted further that that general information indicated that political violence is not perpetrated only by the PA, but also by other parties including the UNP. It occurs around the time of elections or other significant campaigns. It is directed at groups of people rather than individuals, except in the case of high-profile members, such as politicians or other public leaders.

   16 The Tribunal was aware of, and accepted, that the applicant, if he had a significant political profile in Sri Lanka, might face a real chance of persecution for a Convention reason and be unable to rely on effective state protection if he were to return to Sri Lanka. However, for the reasons to which I have referred, the Tribunal found that the applicant had not been involved in public political processes since 1994, and that he ceased his active participation in politics at that time. He did not therefore have the sort of profile which, on the country information available to the Tribunal and which it accepted, might expose him to a risk of persecution for a Convention reason if he were to return to Sri Lanka.

   17 The Tribunal also addressed the question of whether the Sri Lankan authorities would respond to any particular complaint by the applicant of violence or a threat of violence if he reported any such conduct to the authorities. Again, in the light of the general country information, the Tribunal was satisfied that the applicant could obtain adequate protection from violence or threats of violence by reporting perpetrators to the relevant authorities. In reaching that conclusion, the Tribunal had regard to the independent country information as to the nature of state protection provided by the Sri Lankan authorities.

   18 The Tribunal's conclusion was as follows:

   ‘Taken in the context of the widespread participation in politics of many Sri Lankans, the sporadic nature of political violence and the relatively low profile of the Applicant, the chances that he might be persecuted on account of his political opinions are very remote. He can obtain adequate protection from State authorities and, if he remains anxious about being persecuted, he can avoid such violent confrontations by staying out of the public political process, particularly around election time, or moving to another area. If he determines that he should exercise the right to participate in the political process as he did up until 1994, the Tribunal reiterates that there is only a very remote chance he faces persecution for reason of his political opinion. It also concludes he does not face a real chance of persecution for any other Convention reason.’"

1. When one considers the issue of whether or not res judicata applies,

   
   

   I accept and apply the decisions referred to by the respondent.  In particular I apply and accept the decision of Kenny J (with whom Ormiston and Phillips JJA agreed) as she then was in the Court of Appeal in the Supreme Court of Victoria in the matter of Gibbs v Kinna [1999] 2 VR 19 at page 26 as follows:-

   “… rule of res judicata is that, generally speaking, no proceeding can be maintained as a cause of action upon which judgment has been entered.  The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.

   The doctrine rest on the rule of public policy expressed in the Latin maxim ‘nemo debet bis vexari pro si constat curiae quod sit una et eadem causa’ (no one ought to be molested twice, if it appears to the Court that it is for one and the same matter’): Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597.”

2. Essentially the point that is relevant in this application is that it does not matter whether or not a different Part 8 of the Migration Act 1958 applies in this application compared to the part which was in force at the time when the matter was considered by Mansfield J.  On a proper reading of the material before me and applying the principles of res judicata which should be applied as a matter of law, I accept the submissions made for and on behalf of the respondent that a comparative analysis between the contentions now advanced for and on behalf of the applicants in this application are indeed similar, if not identical, to the matters raised and agitated before Mansfield J.  This is a clear case where res judicata applies.  There is nothing substantially different in the application before this court which would persuade this court that the principles to be applied in relation to the doctrine of res judicata should not apply to this application.  Accordingly, it would follow for that reason alone that the application should be dismissed on the basis that the doctrine of res judicata applies.

3. In the event that I am in error in relation to the application of the doctrine of res judicata in this application, I further find on a proper analysis of the RRT's decision that there is no jurisdictional error or any error of any kind made by the RRT in consideration of the claims and evidence before it by the applicant.  It has indeed made findings of fact which were open to the RRT and indeed has otherwise provided reasons for its decision in a form which are free of any error or any jurisdictional error.  It did not, as appears to have been asserted, impose any evidentiary onus of proof upon the applicants.  In my view, the arguments now sought to be advanced by the applicant in these proceedings are, as I have indicated, matters which were in any event dealt with by Mansfield J in the previous proceedings, though in the alternative are not matters which can be sustained in relation to this application. 

4. I do not accept that there has been any error made by the RRT in misconstruing the definition of persecution in the convention.  I do not find that there has been any error in applying the tests of whether there was a well‑founded persecution of a convention reason by wrongly imposing upon the applicant husband an evidentiary onus of proof which was improper to impose.  Both those grounds were agitated before Mansfield J, as indicated in the extracts incorporated in this judgment.  Neither can be sustained in any event in this application.

5. Accordingly, on the basis that the application of the doctrine of res judicata and/or upon my finding that there is in any event no error in this matter of a kind which would attract judicial review, it follows the application should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  1 June 2005