Mzwju v Minister for Immigration
[2005] FMCA 1223
•13 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1223 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589
Schwallie v The Minister for Immigration & Multicultural Affairs [2000] FCA 1623
Wong v Minister for Immigration [2004] FCAFC 242
| Applicants: | MZWJU, MZWJV, MZWJW & MZWJX |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 617 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 13 July 2005 |
| Date of Last Submission: | 13 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2005 |
REPRESENTATION
| Counsel for the Applicants: | MZWJU appeared on his own behalf |
| Counsel for the Respondents: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicants’ application filed 26 May 2004 be dismissed
The applicant’s make no further application to review the Refugee Review Tribunal’s decision dated 25 June 1999 without the leave of the court.
The applicants do pay the respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 617 of 2004
| MZWJU, MZWJV, MZWJW & MZWJX |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The applicants, citizens of Sri Lanka, arrived in Australia on 29 December 1997 on visitors visas. In February 1998 they applied for a protection visa.
In November 1998 a delegate of the Minister refused to grant a protection visa.
In December of 1998 the applicants applied for a review of the delegate's decision and placed additional material before the Tribunal. The applicant and his adviser (as well as his spouse, sister and brother‑in‑law) attended a Tribunal hearing on 3 June 1999 in order to give oral evidence. The Tribunal then considered the matter and on
25 June 1999 affirmed the delegate's decision.
In July of 1999 the applicant sought judicial review of the Tribunal's decision in an action in the Federal Court of Australia. On 15 November 2000 von Doussa J of the Federal Court gave judgment in the matter, dismissing the application of the applicant. That judgment is reported as Schwallie v The Minister for Immigration & Multicultural Affairs [2000] FCA 1623.
The applicant lodged an appeal against the judgment of von Doussa J on 4 December 2000. However, that appeal was subsequently withdrawn. The applicant then brought proceedings in the original jurisdiction of the High Court of Australia on 30 May 2003 seeking judicial review of the decision. As a result of the issues set out therein the applicant became part of what has become known as the Muin and Lie class action (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601), which refers to a decision ultimately made by the High Court with respect to certain limited issues. The applicant's case was subsequently dismissed on remittal to the Federal Court by Emmett J on 30 April 2004.
On 26 May 2004 this application was issued in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. It must be borne in mind that the applicant's attempts to have the decision judicially reviewed have failed before von Doussa J at first instance, been the subject of an appeal that had been withdrawn and had been refused by Emmett J following the Muin and Lie decision.
The orders sought by the applicant in this case were as follows:
1.Order to set aside the decision of the Refugee Review Tribunal dated 25 June 1999.
2.I am not satisfied the decision of the RRT because it was a breach of natural justice and error of law.
3.I believe that they failed to consider my claim properly and the decision was unreasonable.
There is an affidavit filed in support of the application where the applicant says that he is a citizen of Sri Lanka and came to Australia in December 1997. He says in that affidavit that he would like the court to set aside the decision of the Refugee Review Tribunal from 1999 and that he believes the decision was wrong and ‘not decided in accordance with the migration law’.
The matter was the subject of directions by Registrar Efthim in August 2004 requiring the applicant to file and serve an amended application with complete particulars on or before 13 October 2004. It does not appear that that occurred
On 19 November 2004 Hartnett FM made further procedural directions and listed the matter for hearing before myself today. Those procedural directions were to some extent fulfilled before today, although the time frames are not met.
The applicant, on 31 May 2005, filed a document headed Applicant's Contentions of Fact and Law which runs to some seven pages. The first six paragraphs give a very brief history of the matter and paragraph 7 sets out in short form the substance of the claims before the Tribunal. They were that the applicant feared persecution for political reasons and because of claims of mixed race. In paragraph 8 the applicant in his contentions sets out that the Tribunal accepted that he and his family have a fear of returning to Sri Lanka and that there were attacks upon them but that the Tribunal concluded the attacks were motivated by criminal reasons and not political differences. At Page 4 of the document the grounds of the application are set out in the following terms:
11. The applicant submits the Tribunal has fallen into error of law in construing the boundaries of persecution “ for reason of….race religion….’ in the definition of a refugee in Article 1A(A) of the Refugees Convention.
12. The Tribunal has jurisdiction to review the decision of the delegate, but has no power to make a decision which the delegate was not authorized to make. It follows that the Tribunal is bound to apply correctly the definition of a refugee under the Refugees Convention (“the Convention”) incorporated by section 36(2) of the Act. If the Tribunal misconstrues the definition of a refugee it acts without jurisdiction and has therefore fallen into jurisdictional error of law.
13. The Tribunal in the present case concluded that the persecution feared by the applicant was not for a Convention reason.
14. The applicant submits on the basis of the Tribunal’s own reasons for decision that the Tribunal has erred in construing in the definition of a refugee for the purposes of section 36(2) of the Act the term in Article 1A of the Refugees Convention:
“persecution for reasons of .... Race, religion…. etc.
15. Because the Tribunal erroneously considered it was bound by section 91S of the Act to reject the applicant’s claims, it failed to consider and determine whether he had well-founded fear of persecution, which would have required an assessment of the likelihood of protection by the State. The Tribunal dealt with State Protection only cursorily, and indeed its consideration was cursory because of the view it took of the issue of the motivation of the harm feared by the applicant.
It should be noted at the outset that section 91S was not actually enacted at the time of the decision and therefore this ground cannot possibly succeed. To the extent that it might be thought that one of the other grounds as described therein relates to section 91R, the same comments apply as that section of the Act was not then enacted. In any event, it does not appear that the Tribunal's decision turned on a question of whether or not the conduct was sufficiently serious as to bring the applicant within the meaning of ‘persecution’, but rather that the reason for the conduct was not a convention based reason and therefore could not amount to persecution. The decision of the Tribunal is a decision based upon the facts of the case.
The applicant's substantive claim is that he does not agree with the outcome reached by the Tribunal and seeks to have this court reassess the merits of the case in his favour or remit it back to the Tribunal in the hope that he will obtain a different fact‑finding outcome from another Tribunal member. This is not a proper basis for a claim for judicial review. In order to succeed in judicial review the applicant must show a jurisdictional error which requires error in the sense of procedural fairness or error of law.
In oral argument (it seems for the first time in any of the lengthy proceedings and numerous documents related to the matter) the applicant raised as a ground that his wife was not given a proper opportunity to be heard at the Tribunal hearing. He says that she was not given a chance to tell her version of the events that occurred when there was a home invasion. Significantly, the Tribunal accepted the nature of the incident referred to and that it was a particularly traumatising event for his family. The issue before the Tribunal was whether or not it was motivated for a convention reason.
The applicant was unable to articulate to me today from the bar table the nature of the evidence that his wife may have been able to give that would bear upon the question of whether or not the acts were perpetrated by persons motivated by a convention reason. There is no affidavit from the applicant's wife, nor any evidentiary basis for this claim. The applicant has not sought the transcript of the Tribunal hearing in order to provide an evidentiary basis for this claim.
Significantly, I note that the Tribunal recounts that the applicant was accompanied by a solicitor/migration agent who advised him throughout the process and that his spouse gave sworn oral evidence.
I am not persuaded, on the material provided to the court, that there is a proper basis for a claim that procedural fairness was not accorded to the applicant and his family in this matter in the circumstances that the applicant has outlined. For these reasons it appears to me that the applicant does not have grounds for judicial review in the context of this case.
In any event, the matter has already been the subject of a judicial determination by von Doussa J. Not all of the issues raised today are the same as the issues that were raised before von Doussa J. However, it is clear that the proceedings before von Doussa J were for judicial review of the Tribunal decision.
Whatever may be the technical issues that arise with respect to res judicata and issue estoppel, it appears clear to me that this case would fall within the ambit of what is described as Anshun estoppel, based upon the principles discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589 at 598 and 602 which have been considered recently in the Full Court of the Federal Court in Wong v Minister for Immigration [2004] FCAFC 242. If Anshun estoppel does not apply in a case such as this, then there is no basis for stopping serial applications for judicial review, provided that each time a new ground is identified. Appropriate practice in litigation requires that the grounds that an applicant wishes to pursue for judicial review ought to be brought and argued in the one proceedings soon after the decision that it is sought to impugn. There is much commonsense in the outcome that flows from an application of Anshun's case not only in the commercial context but in judicial review proceedings. I am satisfied that these proceedings would be estopped as a result of the findings by von Doussa J.
The final matter that appears to me to be of significance is the fact that if proceedings have already been determined by a Judge of the Federal Court in favour of the respondent, it is inappropriate that an applicant should come to the Federal Magistrates Court seeking to have a Federal Magistrate make findings leading to a different result to that of a Federal Court Judge in the same case. There is a hierarchy of courts and whatever may be the ultimate answer to the question of the technical rules as to precedent and the binding nature of them, there is such obvious and considerable weight that will always be attached to any decision of the Federal Court by a Federal Magistrate which makes it inappropriate to bring proceedings of this type in the Federal Magistrates Court rather than in the Federal Court, in these circumstances.
I therefore dismiss the application of the applicant. Given the number of proceedings that have been brought in this case, I also propose making an order that the applicant not file further proceedings with respect to the decision of the Refugee Review Tribunal of 25 June 1999 without first obtaining the leave of the court.
In these proceedings the Minister seeks the costs of and incidental to the proceedings fixed in the sum of $6,500.00. The applicant has been wholly unsuccessful. This is the third time that the applicant has brought proceedings in the court to challenge the same decision of the Tribunal. I see no reason why the applicant ought not pay the Minister's costs in the circumstances of this case. Having regard to the nature of the proceedings and the relevant scale, I find that the sum sought is a reasonable sum for the costs. I therefore order that the applicant pay the costs of the respondent fixed at $6,500.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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