MZWKF v Minister for Immigration
[2005] FMCA 279
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWKF v MINISTER FOR IMMIGRATION | [2005] FMCA 279 |
| MIGRATION – Protection visa – order nisi refused – appeal refused – whether res judicata or issue estoppel applies – abuse of process – application dismissed. |
Migration Act 1958, ss.418(3), 424(1)
Applicant M115 (2003) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448
Applicant M115 of 2005 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 98
Re Minister for Immigration and Multicultural Affairs ex parte Lamb (2003) 195 ALR 502
Applicant M145 (2003) v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 99
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 242
Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 306
R v Balfour; Ex parte Parkes Rural DistributionsPty Ltd (1987) 76 ALR 256
| Applicant: | MZWKF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 624 of 2004 |
| Delivered on: | 9 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms S. Moore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Amended Application filed 13 December 2004 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $7000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 624 of 2004
| MZWKF |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application, the applicant appears on her own behalf and is not represented. She relies upon an amended application filed 13 December 2004. In that amended application, the applicant makes application pursuant to s.39B of the Judiciary Act 1903 seeking judicial review of a decision of the Refugee Review Tribunal (the RRT) handed down on 7 July 2000, though I note the decision was dated 20 June 2000. The RRT had affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.
The factual and procedural background has been set out in the respondent's contentions of fact and law. The applicant is a female citizen in her mid-70's from Sri Lanka of Sinhalese ethnicity and arrived in Australia on 15 March 1995 on a visitor visa. On 25 July 1997 the applicant applied to the department for a protection visa. She supported that application by a statement dated 24 July 1997.
A delegate of the respondent refused to grant the protection visa on 31 October 1997, and on 26 November 1997 the applicant applied to the RRT for review of that decision. The RRT conducted a hearing on 28 April 2000, and on that occasion the applicant gave oral evidence, as did her daughter, and it is noted the applicant was assisted by a legal adviser.
The claim of the applicant before the RRT is that she is a Sinhalese widow from Colombo. In Colombo she lived then with her married son who had spent most of his time abroad. I am told today that tragically the married son passed away last year. The applicant's residence in Colombo was a group of flats where she was friendly with other residents who were Tamils and whom she helped with food and support. The applicant claimed before the RRT that security forces regularly conducted searches of the flats and claimed that during these searches she would be questioned and accused of harbouring Tamils and was accused of being pro-Tamil and a Liberation Tigers of Tamil Eelam (LTTE) sympathiser.
On three occasions ammunition was found in the possession of Tamil residents. Further claims were made in relation to soldiers being abusive and threatening to the applicant during the searches. Specific reference was made to other incidents, including one in February 1995 where the applicant was alone when her home was raided by the security forces and she was interrogated. Some days later she was visited by Tamil youths who accused her of providing information to the authorities about Tamil residents. She was threatened and advised not to inform the authorities. She claimed that a few days after that she became aware of the death of two Sinhalese people who were believed to inform the authorities about the activities of Tamils in the applicant's group of flats. Further claims were made that another search by the authorities resulted in more Tamil arrests and that the applicant feared for her safety. She received, it is claimed, threatening telephone calls, and made arrangements to leave the country. Her claim is that she feared that on return to Sri Lanka she would be persecuted by Tamils and members of the LTTE who believed she gave information to the authorities. She fears she may be arbitrarily arrested by the security forces in future searches of her block of flats.
In considering those claims before the RRT, it is clear on a proper and fair reading of its decision that the RRT in reaching its conclusion that there was not a real chance the applicant would suffer persecution for a convention reason if she returned, and finding that it was not satisfied the applicant was a person to whom Australia has protection obligations under the convention, that it assessed the facts as claimed and significantly made adverse credibility findings against the applicant. Those credibility findings were based upon what the RRT identified in its reasoning as inconsistencies in her evidence.
On my reading of the RRT decision, it is clear that it has analysed the factual basis of the claim as presented by the applicant and has done so in a way that was open to the RRT in considering the material before it. It made findings that it rejected as credible that the applicant left Sri Lanka for fear of further persecution. It found the catalyst that brought the applicant to Australia was the birth of her grandchild. It otherwise made findings in relation to any adverse incidents having affected the current occupants of the applicant's flat in Colombo over the previous five years and there being no evidence of the situation that the flat was such as to attract an unusual amount of attention of either security forces or Tamil activists. It otherwise found that the evidence of the applicant and her claim that she assisted Tamil neighbours to be unconvincing. It is not necessary for me to further deal with the precise findings of the RRT, save for what I have indicated in terms of seeking to analyse the material.
In relation to the history of litigation in this matter, it is noted that in or about 2001 the applicant joined the representative proceedings in Lie v Refugee Review Tribunal and Muin v Refugee Review Tribunal (the Muin case). In those proceedings the plaintiff sued in a representative capacity, complaining of procedures adopted by the tribunal in reviewing adverse decisions of delegates of the minister relating to claims for protection visas. It is accepted that in essence the questions asked whether upon certain facts stated the inferences, if any, to be drawn from those facts, there was a failure by the tribunal to accord procedural fairness or failure to comply with s.418(3) or 424(1) of the Migration Act 1958 (the Act).
Orders were made by the High Court on 8 August 2002 in the Muin case answering certain questions favourably to the plaintiffs, and specifically the court found in the affirmative that there was a failure to accord the plaintiff's procedural fairness. After that judgment, Gaudron J made further orders in each proceeding, including the applicant's proceeding that the parties have leave to file an application seeking order nisi in relation to the decision of the RRT affecting the applicant.
The applicant then on 21 May 2003 filed an order nisi application in the High Court seeking writs of prohibition in certiorari in relation to the RRT decision. It is not necessary to recite the draft order nisi, save and except that it refers to a failure to accord procedural fairness. It further refers to failure to take into account relevant considerations.
Apart from relying upon the amended application, the applicant has asserted the RRT failed to consider her case. She tried to explain the case and claimed that she did not get a chance to provide or produce material to the RRT in support of her case and claimed a breach of the rules of natural justice.
The order nisi application was remitted by the High Court to the Federal Court of Australia. On 16 October 2003 Marshall J ordered the applicant to file and serve by 17 November 2003 a statement of relevant facts and law and affidavits on which she intended to rely on at the hearing. It is clear that the applicant by the contentions of fact and law appears to have effectively repeated those matters set out in the draft order nisi.
A notice of motion dated 19 November 2003 was filed by the respondent and application was made for orders that the application for judicial review be dismissed on the basis that it disclosed no reasonable cause of action. The notice was heard by Marshall J on 8 December 2000. The applicant appeared and was then unrepresented. The respondent was represented by counsel. On 8 December 2003 Marshall J ordered the application be dismissed as disclosing no reasonable cause of action. In the course of his judgment, His Honour stated the facts and circumstances of the case were indistinguishable from those considered in his own decision in the Applicant M115 (2003) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448. The M115 decision was upheld by the Full Court of the Federal Court on 5 May 2004. See Applicant M115 of 2005 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 98.
In M115, the applicant had not filed affidavit material demonstrating how it would have made a difference to her case before the RRT if she had been appraised of relevant country information. Marshall J in M115 considered the alleged denial of procedural fairness by relying on country information without notice to the applicant and found it could not arguably be established. He referred to the High Court's judgment in Re Minister for Immigration and Multicultural Affairs ex parte Lamb (2003) 195 ALR 502 and in particular the concept of practical injustice. It is not necessary for me to include a reference to that in this judgment, save to say that I am mindful of the fact that there may be some room for debate about those conclusions, though essentially I am minded to follow and adopt what His Honour Marshall J said in M115.
On 19 December 2003, the applicant filed a notice of appeal from the judgment of Marshall J and as a result of the orders being made by His Honour being interlocutory in nature, it was clear the applicant required leave of the Full Court of the Federal Court of Australia to appeal. She also required an extension of time, given the application not being filed within seven days.
A notice of objection of competency was filed by the respondent on the basis that no leave or extension had been sought by the applicant in the notice of appeal. On 10 February 2004 Black CJ ordered that any application for extension of time to which to apply for leave to appeal be filed and served by 27 February 2004, and any application specifically set out the grounds of appeal if leave was required or granted. On 26 February 2004 the applicant filed an application for an extension of time, an application for leave to appeal, an affidavit in support and a brief outline of submissions. It is claimed, and I accept, by the respondent that in those documents the applicant for the first time identified specific country information upon which the RRT was alleged to have relied without notice to the applicant and contended that it should have given her written notice of that country information.
The respondent filed an outline of submissions in response, and a hearing of the Full Court of the Federal Court of Australia was held on 7 May 2004. On that occasion the applicant did not appear. The court delivered an ex tempore judgment and ordered the applicant's application for extension of time and leave to appeal be refused and the applicant pay the respondent's costs (See Applicant M145 (2003) v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 99).
Although the applicant in the current application filed an application on 27 May 2004, it is clear that she seeks to rely upon the amended application filed 13 December 2004 and otherwise relied upon the document entitled "My Contentions of Fact and Law" filed the same date. On the amended application, it seems clear to me that essentially the applicant claims jurisdictional error and does so on the basis that although asserting the wrong question was asked, that the RRT identified the wrong issue or failed to take into account relevant material and took into account irrelevant material. The particulars subjoined to the grounds, in my view, seem to essentially re-argue matters which had been raised earlier but in any event seek to agitate issues of fact and indeed challenge the conclusion of the RRT.
Before the court this day, the applicant has sought orders that the matter be remitted to a differently constituted RRT, to be reconsidered. Affidavit material relied upon by the applicant sworn 25 May 2004 deposes to what I just indicated that she does not agree with the decision of the RRT and effectively states what the applicant has stated to me today that the RRT did not consider the claims properly and the decision was made with an error of law, and she otherwise believes there was a breach of natural justice.
This application was subject to orders by a registrar on 20 October 2004. The result of those orders was the amended application, to which I have referred, filed on 13 December 2004. It is clear to me that on a proper reading of the material currently relied upon by the applicant, there does not appear to be any basis upon which it could be concluded there is jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Applying the principles in that case, I cannot in the present case see any basis upon which this court could find jurisdictional error or conclude that it is appropriate there should be judicial review of the kind sought by the applicant.
It is important in the present case, however, to go beyond that finding, which itself would be determinative of the amended application. The respondent has raised a number of other issues, which include the issue of res judicata, the issue of whether or not in the event that res judicata does not apply, the court may be minded to consider issue estoppel or Anshun estoppel, but further, and perhaps substantially, whether or not the proceedings could constitute, or properly be regarded as constituting an abuse of process.
It is submitted on behalf of the respondent that in the present case the applicant attempts to raise grounds for review that were raised by her in the order nisi remitted to and determined by the Federal Court, namely natural justice, and irrelevant considerations. It is submitted by the respondent that the applicant should be prevented from bringing those matters again to court by virtue of the operation of the doctrine of res judicata and/or issue estoppel. Those doctrines, it is submitted, are based upon the broad rules of public policy expressed in the Latin maxims ‘nemo debet bis vexari pro uno et cadam causa’ (a person ought not to be vexed twice for one and the same cause) and ‘interest reipublicae ut sit finis litium’ (it is in the interests of the state that there be an end to litigation). It is argued that it would be an abuse of process to allow parties to re-litigate repeatedly matters that have been finally determined in the court. It is further argued that the resources of the community ought not to be expended in the litigation more than once of the same issue (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 242 at [36]).
It seems to me that on a proper reading of the material that the principles to be applied in relation to res judicata apply in the present case where the primary question that I should ask as submitted by the respondent is whether the cause of action in the later proceeding is the same as that which was litigated in the earlier proceedings. The cause of action submitted by the respondent ought to be seen as the right to review the subject decision, regardless of the grounds relied upon (See Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 306 at [18]). It is argued, and
I accept, that where res judicata applies as a matter of law, it bars the litigant from pursuing the claim. The court then does not retain a discretion to ameliorate the application for the doctrine.
In my view, in this case, res judicata does apply as a matter of law and should bar the applicant from pursuing the claim. If I am wrong about that, I am otherwise satisfied that issue estoppel would apply in circumstances where it seems clear to me that the cause of action which is sought to be pursued by the applicant has already been considered and determined elsewhere as indicated in the chronology of proceedings.
In the event that I am incorrect in my finding concerning res judicata and issue estoppel, I am otherwise satisfied, however, applying the appropriate principles to which reference has been made by the respondent, that this application could properly be regarded as an abuse of process. It was submitted for and on behalf of the respondent that even where the conditions necessary for res judicata or Anshun cannot for some reason be satisfied, an applicant may still be prevented by the doctrine of abuse of process from re-litigating questions that have already been decided and that should have already been decided by a competent court (see R v Balfour; Ex parte Parkes Rural DistributionsPty Ltd (1987) 76 ALR 256).
Having regard to the history of the matter, it is clear to me that this application is an abuse of process. In matters of this kind, there needs to be an end to the litigation. The Latin maxims to which reference has been made apply equally to applications of this kind, in my view. They certainly apply in support of the principles which would lead the court to conclude there has been an abuse of process. Hence even if I am incorrect in my findings concerning the issue or res judicata, issue estoppel, I am satisfied on the material before me that this application, having regard to the chronology of events and the matters sought to be raised in the amended application, constitutes an abuse of process and on that basis should be dismissed.
In the alternative, I am satisfied, having considered the decision of the RRT and the claim as placed before the RRT by the applicant, that there is no demonstrable error of law of a kind which would satisfy me in any event that there has been jurisdictional error, and on that basis
I am further satisfied it would be appropriate, in any event, that the application as amended be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 March 2005
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