MZWXM v Minister for Immigration
[2009] FMCA 911
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWXM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 911 |
| MIGRATION – Review of decisions – Refugee Review Tribunal – Conduct of review – Credibility of applicant – Failure to put applicant on notice that adverse inference may be drawn from delay in raising aspects of claim – Where applicant had explanation for delay. MIGRATION – Review of decisions – Judicial review – Grounds of review – Fraud – Whether fraud on tribunal – failure of migration agent to include all of applicant’s claims in initial documents. MIGRATION – Review of decisions – Judicial review – Grounds of review – Natural justice – Failure to put applicant on notice that adverse inference may be drawn form lateness of claim – Where applicant had explanation for delay. |
| Migration Act 1958, ss.414, 424A, 425 |
| Ming Shi Xue v Board of Immigration Appeals 439 F 3d 111 (2006) Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 41 ALD 1; (1996) 70 ALJR 568 Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 MZWXM & Anor v MIMA & Anor [2008] HCATrans 215 MZWXM & Anor v Minister for Immigration and Citizenship & Anor [2008] HCATrans 393 MZWXM v Minister for Immigration [2005] FMCA 1670 MZWXM v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 1248 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64; (2007) 81 ALJR 1401 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; (2008) 249 ALR 58 Zhi Wei Pang v Bureau of Citizenship and Immigration Services 448 F 3d 102 (2006) | ||
| Applicants: | MZWXM & MZWXN | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 6 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 22 & 26 May 2009 |
| Date of Last Submission: | 26 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.I Star with Ms E. A. Bennett |
| Solicitors for the Applicant: | Arnold Block Leibler |
| Counsel for the Respondents: | Mr C. J. Horan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 6 of 2009
| MZWXM & MZWXN |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are husband and wife. They arrived in Australia on 23 July 2003. The applicant husband applied for a protection (class XA) visa on 14 August 2003, claiming persecution by virtue of his political affiliations. The applicant wife applied pursuant to s.36(2)(b) as spouse of the applicant husband.
On 20 November 2003, a Delegate of the Minister refused the protection visa. The applicants then sought review in the Refugee Review Tribunal. A hearing was conducted by the Tribunal on 1 December 2004. At the Tribunal hearing, only the applicant husband made specific claims under the Refugee Convention, with the applicant wife in turn relying on her membership of his family. The Tribunal affirmed the decision of the Delegate.
Protection Visa Claim
The applicants were both born in Sri Lanka in 1949. They have a son and a daughter. The applicants’ claims fell within two broad categories:
a)That he was being threatened by unknown persons as a result of refusing to tell of his son-in-law’s whereabouts. The applicant husband’s daughter, her husband and their child migrated to Australia in 1998 following harassment as a result of the son-in-law’s Tamil ethnicity.
b)The applicant husband also claimed that he was harassed because of his association with members of the United National Party (“the UNP”).
Threats before the bus collision
The details of the threats made to the applicant before the bus accident were summarised by the Tribunal at paras.25 to 27:
[25] The applicant’s son-in-law, G, is of Tamil ethnicity. Whilst living at the applicant’s house his son-in-law had been harassed by various people. At one stage he had been imprisoned and the applicant had to arrange bail for him. Two of his son-in-law’s brothers had been killed. Because of the harassment suffered by his son-in-law he was accepted, said the applicant, as a refugee by Australia and so he, his wife and daughter emigrated to Australia on 22 June 1998. His son-in-law now operates a curry shop in Dandenong.
[26] Although his son-in-law had left Sri Lanka, the applicant received visits at his home from the people who had been harassing his son-in-law. The applicant did not know who these people were, but they would come to his home and ask his son-in-law’s whereabouts, saying that they wanted to contact him. One of the people who came was a man named [Z].
[27] The applicant claimed that he had been threatened by these people. He was told that they would “deal with” him. They gave him deadlines by which he had to provide the information about his son-in-law – for instance saying that they would come back the next week. There were 5 or 6 visits altogether. Initially two people came, then one. The applicant said that he was told by them that they would kill him.
Following these threats, the applicants moved house. He was not again threatened at his new home, although said that he saw people on the street from time to time.
Bus Collision
The applicant also relied upon a bus collision in support of his claim. The circumstances of the collision are outlined in the tribunal decision:
[30] On 18 January 2000, the applicant was involved in an accident. He had been travelling in a three-wheeler with his mechanic when an intercity passenger bus collided with the three-wheeler. His mechanic died as a result of the accident and the applicant suffered injuries. He described a broken left wrist, a bruised left leg and other injuries, which were such as to prevent him from working for six months and caused him to spend three months in bed.
[31] The applicant claimed that the collision had not been an accident. He claimed that the bus driver had deliberately run into the three-wheeler and that the actions of the driver were directed at him. He was unable to explain why this would be so. …
The applicant made a statement to the police about the accident, but made no mention in the police statement of the claim that the driver of the bus had acted deliberately.
At the Tribunal hearing, the applicant claimed that the collision had not been an accident, but that the bus driver had deliberately run into the applicant’s vehicle. There appears to have been no evidence from which an inference could reasonably be drawn that the collision was a deliberate act on the part of the bus driver.
Court Precincts Threat
The collision gave rise to legal proceedings in the Sri Lankan Magistrate’s Court. The applicant alleges that an incident occurred at the court which was described by the Tribunal as:
[41] In 2003, the applicant attended the Magistrates’ Court to give evidence with respect to the collision in which he was injured. He claimed that he and the mechanic’s wife were “respondents” to the proceeding. The applicant gave evidence at court on one day. He was two return another day, he said, to be cross-examined. Whilst in the court precincts he was approached by people who asked him his name and told him that he should not again come to the hearing. They told him that, if he did, he would be in trouble but said that they could not tell him why this would be so.
The applicants claim that following these threats, the husband became fearful of his life. Two to three months later he came to Australia, departing on 22 July 2003. The adjourned date for the court proceedings was in August 2003.
Tribunal Decision
The relevant parts of tribunal’s findings and reasons were as follows,
Findings and Reasons
[54] For the purpose of this decision, I will assume, without deciding, that the applicant has a subjective fear of serious harm should he now return to Sri Lanka. I will assume, for this purpose, that his son-in-law left Sri Lanka in 1998 because he was subject to harassment, though there is no evidence before me to establish the nature of the harassment or its effect upon the son-in-law. However, the departmental records show that the applicant’s daughter entered Australia on a visa, subclass 215 – Sri Lankan (Special Assistance). Primary criteria for grant of that visa include that the applicant’s life has been seriously disrupted by fighting in Sri Lanka within the period of 18 months, ending on the date of the application, and that the applicant has suffered and continues to suffer substantial discrimination because of his or her ethnic origins or political beliefs. I will assume that the applicant’s son-in-law entered Australia upon the same class of visa.
[55] I accept it as probable that, after the applicant’s son-in-law left Sri Lanka, a person or persons came to the applicant’s house (which had also for a time been the home of his son-in-law) to ascertain the son-in-law’s whereabouts. I accept that, having regard to what I have assumed to be the son-in-law’s reasons for leaving Sri Lanka, the applicant was or would be willing to disclose his son-in-law’s whereabouts. I am also prepared to accept that the caller or callers attended the house more than once, and that they may have been aggressive in their manner of demanding to know the son-in-law’s whereabouts.
[56] I do not accept that the applicant was told that he would be “dealt with” or that he would be killed if he did not disclose the whereabouts of his son-in-law, but, even if I am wrong about that, I do not accept that they were truly threats of imminent harm of which disclose intention by the makers of the threats to give effect to them. I, therefore, find that they do not amount to “serious harm” within the meaning of section 91R(2)(a) of the Migration Act 1958. Similarly, I do not find that the level of aggression shown towards the applicant amounted to serious harm … I do not accept that the applicant was ever in any danger of harm by reason of any circumstances connected with his son-in-law. Nor, in the circumstances, do I find that there is a real chance that it would be harmed by any of those people should he return to Sri Lanka.
[57] The applicant invites the tribunal to accept that the motor vehicle collision in which he was involved in January 2000 was a deliberate attempt on his life. I reject that assertion. I accept that the document containing a statement about the collision made by the applicant to the police is genuine. The statement asserts no fact consistent with a deliberate attempt by the intercity bus driver to run down the three wheeler, nor does it make any such allegation. The applicant does not say that, although interviewed by the police, he made any complaint to the police to the effect that the bus driver deliberately aimed to kill or seriously injure him – or, for that matter, the driver and the other passenger of the three wheeler. The applicant does not suggest that the intercity bus driver was doing anything other than travelling along his normal route, presumably according to his normal timetable. Had the driver planned to run down the applicant, it is a remarkable coincidence of timing that the applicant happened to be sitting in a three wheeler in the particular location just as the bus came along. Notably, the applicant raised the incident with the bus driver for the first time in the hearing before the tribunal. Had he truly believed this to be an attempt on his life, I would have thought it to be a matter of such significance that he would have brought it to the attention of the department at the time of his claim.
[58] The credibility of the applicant’s reliance upon the collision as evidence of persecution is further diminished by his ambivalence in attributing a reason for the bus driver’s allegedly deliberate act in colliding with the three-wheeler. This is because the applicant appeared to put his claim in the alternative: the attempt on his life was made either because of his failure to disclose his son-in-law’s whereabouts or, alternatively, by reason of his involvement with the UNP. As to political involvement, the applicant’s own evidence (subject to some qualification during the hearing) was that he was not active in the UNP until December 2001, almost two years after the collision between the three wheeler and the bus. I am also satisfied that there was no connection between the collision and any attempt to harm the applicant. I am satisfied that the collision was wholly accidental and not attributable to any person who sought to harm the applicant because of his failure to disclose his son-in-law’s whereabouts, for any association that he may have had with the UNP, or for any Convention reason.
[61] … In all the circumstances, I find that no such threats of harm or death were made against the applicant by reason of any involvement or imputed involvement with the UNP.
[62] With respect to the alleged litigation that followed the bus collision, the applicant claims that he was threatened with harm and thereby discouraged from proceeding with a claim for compensation for the injuries that he suffered. He also claims that he was discouraged from giving further evidence in the Magistrates Court proceeding because of threats made in the precincts of the court.
[63] For present purposes, I will accept that the applicant had a cause of action for compensation arising from the accident. I will also accept, for these purposes, that he was a material witness in the proceeding in the Magistrates Court. Other than to say that he held fears of unspecified harm from a poorly identified source should he proceed with a claim, the applicant’s evidence on this point is unconvincing. The applicant appeared to connect his general reluctance to proceed with a compensation claim with the persons that sought to dissuade him from giving evidence in the Magistrates Court. I do not accept that he was approached in the court precincts as he alleges, and I do not accept that he declined to give evidence for that reason. No particular harm was threatened in the conversation and no reason was given for the request that he not give evidence to the court. There was nothing in that conversation which is proportionate to the response the applicant claimed that it produced in him, that is, flight from Sri Lanka.
[64] Like the allegation concerning the bus collision, the claims arising in the context of these legal proceedings were raised for the first time in the hearing before the tribunal. Because of the claim that it was the conversation in the precincts of the Magistrates Court that precipitated his departure from Sri Lanka, I would have thought that on 14 August 2003, when he lodged his claim for a protection visa with the department, having arrived in Australia on 23 July 2003, the circumstances precipitating his departure would have been uppermost in his mind. Nonetheless, they are not referred to in his statement or reflected in his application. I find that the applicant was not threatened with harm in order to have him desist from commencing proceedings for compensation and from giving evidence in the Magistrates Court.
[65] In any event, even were I to accept that the applicant had been threatened at court as he claimed, I am not able to discern in the evidence any connection between such threats and the applicant’s failure to disclose the whereabouts of his son-in-law or his claim to association with the UNP and, consequently, I cannot be satisfied that, even had such threats been made, there was any Convention nexus whatever by reason of political opinion or otherwise. Similarly, I am unable on the evidence to discern any connection between the collision or the placing of pressure upon the applicant not to give evidence in the Magistrates Court. Even had I accepted that he was pressured into absenting himself from the hearing, there is no evidence to support an inference that the pressure was applied for any one of the five Convention reasons. Nor, on the evidence, could it be said that the pressure the applicant claims to have been applied to him amounted to the serious harm required by section 91R of the Act …
FMC Application
The applicants, now representing themselves, sought judicial review of the RRT decision in an application filed 1 February 2005 in the Federal Magistrates Court.
Whilst the applicants were then unrepresented, clearly they obtained some form of assistance in completing their application, at least by being provided with a ‘pro-forma’ set of grounds. However, unlike many cases with pro-forma grounds, these had particulars inserted that were specific to this case. The Grounds of the application filed were particularly wide:
4. The grounds on which the applicant seeks orders under section 39B of the Judiciary Act, in relation to the decision are as follows:-
A. The decision of the Tribunal
(a)was made without jurisdiction or is affected by an error of jurisdiction;
(b) is affected by error of law;
(c)is so unreasonable that no reasonable decision maker could have made it;
(d) is based on a finding for which there was no evidence or other material;
(e) takes into account irrelevant considerations
(f) fails to take into account relevant considerations
(g)was an improper exercise of power conferred by the Migration Act 1958
(h) was otherwise contrary to law
(i) was made in bad faith
PARTICULARS
My evidence was that after my son in law left Sri Lanka, the people who had been harassing my son in law visited my home on a number of occasions demanding I provide them with the whereabouts of my son in law. They were aggressive and threatening.
The tribunal has erred by coming to the conclusion that the treats and harassment I suffered did not come within the meaning of serious harm. Given the background of the situation with my son in law, the poisoning of my dog, the smashing of the front and rear windows of my car, there is no basis for the tribunal not accepting that I was told I would be dealt with or that I would be killed.
B. The decision maker
(a) failed to accord the applicant natural justice;
(b)failed to follow the procedures required by the Migration Act;
(c) asked the wrong question or misconceived her duty
PARTICULARS
The above particulars are repeated.
[emphasis added]
It is clear form the grounds of the application that the applicant sought to raise all possible grounds for judicial review, and that items B.(a) and (b) raise issues with respect to the proper conduct of the hearing.
The matter was heard by Connolly FM, who dismissed the application on 15 November 2005: see MZWXM v Minister for Immigration [2005] FMCA 1670. In his reasons for judgment, Connolly FM concluded:
[15] In effect the Tribunal found that the applicant had not been told "that he would be dealt with" or that he would be killed if he did not disclose the whereabouts of his son-in-law. It also said that it did not accept the applicant was ever in any danger of harm by reason of any circumstance connected with his son-in-law. Those findings were open to the decision maker of factual matters. Those findings cannot be overturned on review.
[16] The Tribunal then went on to address the issue of whether the applicant suffered "serious harm" only in the context that it was wrong in its initial findings. The Tribunal set out the reasons why the alleged threats were not ‘threats of imminent harm’ or which disclosed an intention by the makers of the threats to give effect to them and were not serious harm. The Tribunal clearly set out the reasons as to why it reached that conclusion (CB p. 111-112). [emphasis added]
Appeal to Federal Court
The applicants appealed to the Federal Court. The appeal was heard by a single judge, Tracey J: see MZWXM v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 1248. The appeal with dismissed on 20 September 2006. In his judgment Tracey J concluded:
[11] Counsel for the Minister very properly drew attention to the possibility that the Tribunal’s decision might be impugned on a ground not raised by the appellants either before the Federal Magistrates’ Court or this Court. As already noted the Tribunal dealt, in its reasons, with the claim by the husband that the bus driver had deliberately collided with the vehicle in which he was travelling in order to kill or seriously injure him. One of the bases on which the Tribunal rejected this evidence was that it had not been placed before the Minister’s delegate and had been raised, for the first time, at the hearing before the Tribunal. This aspect of the Tribunal’s reasoning may have been subject to the objection that the Tribunal should first have alerted the husband to the adverse inference which it might draw from his earlier silence.
[12] Had such an argument been advanced by the appellants, it would, in my view, have been bound to fail. The Tribunal’s evaluation of the evidence does not constitute ‘information’ for the purposes of s 424A of the Migration Act: see VWFP and VWFQ v The Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 231 at [70]. Furthermore, the Tribunal’s rejection of the claim that a deliberate attempt had been made to harm the husband was founded on a range of additional considerations which, standing alone, would have supported the conclusion to which the Tribunal came: see reasons at paras [57] and [58]. [emphasis added]
Special Leave Application
The applicants sought special leave of the High Court of Australia on 16 October 2006 and filed an amended draft notice of appeal on 30 November 2007. The High Court dismissed the application for special leave on 23 May 2008.
The application for special leave to appeal was based around issues concerning the operation of s.424A and the interpretation to be given to that section in light of the decisions in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1.
On the special leave application, counsel for the applicant focused upon the s.424A point. This point had been first raised by the respondent before Tracey J (this was the proper course for the respondent, in order to fulfil the respondent’s obligations as a model litigant).
Counsel argued that the relevant information, for the purpose of section 424A, was the typewritten statement signed by the applicant setting out the facts supporting his claim, which was provided to the department on 13 August 2003. This typewritten statement did not include the applicant’s claims with respect to the bus collision or Court Precincts Threat, which were subsequently given to the tribunal at the hearing, as a result of the default of the migration agent. It appears that this was the first time that it had been put to the court that the failure to make the bus collision or court precincts claims before the oral hearing in the RRT was due to the default of the migration agent and not the applicant.
On the special leave application, counsel quite properly advised the High Court that a fresh application had been issued in the court’s original jurisdiction, relying upon the same underlying facts, but in the context of ss.414 and 425: MZWXM & Anor v MIMA & Anor [2008] HCATrans 215 at line 161.
The application for special leave was refused: MZWXM & Anor v MIMA & Anor [2008] HCATrans 215. Brief reasons were given by Heydon J (at line 233):
We are indebted to Mr Star for the efforts he has put into developing the thoughtful arguments he advanced on behalf of the applicant. However, even if there were issues of construction of section 424A of the Migration Act 1958 (Cth) which remain open after SZBYR v The Minister for Immigration and Citizenship [[2007] HCA 26] (2007) 235 ALR 609, resolution of them in favour of the applicants would not be decisive of the appeal if leave were granted, because the two items of information to which those issues relate were correctly said by the tribunal not to be Convention related. That conclusion was reached on the assumption, contrary to the primary proposition of the tribunal, that the applicant’s reasons were to be accepted.
Accordingly, the present application is not an appropriate vehicle in which to consider Mr Star’s argument, and the application must be dismissed with costs. [emphasis added]
Application in Original Jurisdiction of High Court
On 30 November 2007 the applicants made application in the original jurisdiction of the High Court for judicial review of the RRT decision.
This application relied upon the ground that:
The Decision was made in breach of section 414(1) and/or 425(1) of the Migration Act 1958 (Cth).
On 20 November 2008, Crennan J remitted the matter to this Court for determination as follows:
…
2. The further proceedings in the application filed 30 November 2007, including the hearing and determination of the grounds in paragraphs 3 to 5 of the first defendant’s summons filed 12 November 2008, be remitted to the Federal Magistrates Court of Australia.
3. The proceedings continue in that Court as if the steps already taken in the matter in this Court had been taken in that Court.
In her decision, MZWXM & Anor v Minister for Immigration and Citizenship & Anor [2008] HCATrans 393 (at line 1370), her Honour stated:
The plaintiffs have already had recourse to the judicial power of the Commonwealth in respect of the decision of the Tribunal in their application to the Federal Magistrates Court, the appeal from that decision to the Federal Court and their application to this Court for special leave to appeal from the Federal Court. The complaint about the collision claim and the court claim now raised in the context of section 414(1) and section 425(1) of the Act is the same complaint underlying the previously unsuccessful application to raise the same matters in the context of section 424A of the Act.
However, this matter involves a very special circumstance and that is that adverse inferences drawn against the plaintiffs before the Tribunal were linked with delinquent conduct by the migration agent then assisting the plaintiffs. After hearing extensive and able submissions from both Mr Star for the plaintiffs and from Mr Knowles for the first defendant I am persuaded that this is an appropriate matter for the grant of an extension of time as sought. This is because the plaintiffs have raised an arguable case of jurisdictional error based on section 425(1) and section 414(1) of the Act and the reasons why this was not raised earlier have been fully explained.
Current Grounds of Review
The applicants claim that the breaches alleged in the current application occurred as a result of the Tribunal’s decision being affected by the apparent late ‘invention’ of both the bus collision and the subsequent threats allegedly made at the related court case.
In their application, the applicants claim that the Tribunal failed to comply with ss.414 and 425(1) in that the Tribunal failed to raise with the applicant or otherwise draw to the applicant’s attention to:
a)The fact that the applicant husband’s statements to police with regard to the collision were inconsistent with the claim that it was a deliberate attempt on his life; and
b)The fact that the collision had not been raised with the delegate of the Minister.
Section 414 of the Migration Act reads as follows:
Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Section 425 of the Migration Act reads as follows:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Conduct of the Applicants’ migration agent
The applicant lodged an affidavit setting out evidence in support of his application. The applicant was not cross-examined. The applicant makes a number of significant claims. He sets out that he advised his migration agent of all of the relevant facts and circumstances at the outset (paragraphs 4 to 7). He said that, at a meeting with his migration agent, the agent said that the bus incident was not important and should not be included in his visa protection application, as it would complicate things, because the agent was not able to connect it up with the rest of his claims (see paragraph 8). He paid the migration agent significant fees for this work and advice.
When he received a letter from the department requesting any new documents or written arguments that he wished the tribunal to consider, he decided that he should insist upon the balance of the information being submitted to the RRT (see paragraphs 19 and 20). After a discussion with his migration agent, the agent agreed to submit the information about the three wheeler, referred to as “new information,” although the information was always available and always put to the migration agent by the applicant (see paragraph 23).
The applicant had asked the migration agent to give the police reports about the three wheeler incident and other information, such as newspaper articles, to the RRT before the hearing, however, the agent advised that he would do that, but ultimately submitted the information at the hearing (see paragraphs 33 to 36).
The applicant attests to the fact that the RRT did not ask him about why he had not raised this new information before the hearing, and that if the member had done so he would have explained the situation with respect to the migration agent (see paragraph 38):
…I had no idea that the failure of these claims being made prior to the RRT’s hearing was an issue in the application being dealt with by the RRT.
The applicant attests that had he been asked by the Tribunal as to the delay in raising the collision he would:
… definitely have given evidence to the RRT that I had given these documents to [the migration agent] on 21 November 2004 and had instructed [the migration agent] to submit these documents to the RRT before the hearing. In addition, I could and would have asked the RRT to hear evidence from my wife, daughter and son in law about what occurred in the meetings with [the migration agent] regarding all these matters. I would also have asked [the migration agent] to give evidence to the RRT confirming the truth of all these matters. However, I did not do any of these things as I did not know until I received the RRT’s decision that the RRT was relying on the fact that I had not, before the RRT’s hearing, made claims about the three-wheeler incident and the subsequent court case.
I see no reason to reject this evidence and, in the circumstances, accept the applicant husband’s evidence contained in his affidavit.
The migration agent was barred following an unrelated matter from being registered as a migration agent for a period of 5 years – the maximum period allowed under the Act. The Migration Agents Registration Authority was satisfied that agent:
· did not act in his client’s best interests and did not deal with his client competently, diligently or fairly;
· failed to give his client accurate advice;
· failed to have due regard for his client’s dependent on his knowledge and experience;
· failed to take all reasonable steps to maintain the integrity and reputation of the migration advice profession; and
· charged unreasonable fees.
The information concerning the migration agent being barred from practice is entirely consistent with the claims made by the applicants.
I am satisfied that the conduct of the migration agent in this case was well short of that of an appropriate migration agent and was the cause of the information being presented in the way that it was. This has led to the inappropriate conduct of the hearing, and resulted in significant adverse findings relating to the applicant’s credibility.
One would have expected the member to have put to the applicant that the material was only provided recently and that this had a significant impact upon his credit, and that there was real risk that the information would be considered a recent invention. Why the tribunal member did not do so is not clear from the material.
Consequences of the default of the migration agent
The gravamen of the Applicants’ claims is that the effect of the conduct of his migration agent has been to significantly undermine the applicant husband’s credibility before the Tribunal, and lead to a finding against him on issues of credit.
Fraud on the Tribunal
The law relating to fraud upon a Tribunal caused by a migration agent is set out in SZFDE v Minister for Immigration [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64; (2007) 81 ALJR 1401. In that case the High Court said:
[32] An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution[53], the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.
At paragraph 49 the High Court said that ‘the fraud of [the migration agent] had the immediate consequences of stultifying the operation of the legislative scheme to afford natural justice to the Appellants.’ In deciding what type of conduct will “stultify the operation of the legislative scheme to afford natural justice” it is important to have regard to the comments in paragraph 51 which refer to whether or not the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”, and at paragraph 53 where the court said:
[53] The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made[[2006] FCAFC 142; (2006) 154 FCR 365 at 399]. The outcome in the present appeal stands apart from and above such considerations.
In Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 French J said:
121 The common law proposition that fraud may vitiate an administrative decision made in the exercise of a statutory power applies as part of the common law of Australia as it does as part of the common law of England. It has not been formulated with precision. Its extension to circumstances ‘analogous to fraud’ covers a range of situations which are not clearly delineated. It appears to cover ‘reckless’ conduct. As Aronson, Dyer and Groves observed, after referring to the acceptance in Al-Mehdawi that decisions of inferior courts and tribunals could be reviewed at the instance of one party for the fraud, perjury, duress or even simply improper behaviour of another party:
‘The principle underlying these cases however is still unclear.’
It is sufficient to say that a decision made in the purported exercise of statutory powers may be quashed by certiorari where the decision has been induced or affected by fraud or by circumstances analogous to fraud.
122 Fraud and ‘analogous circumstances’ will justify the grant of certiorari if they ‘distort’ or ‘vitiate’ the statutory process leading to the impugned decision to such an extent that it can be said that the decision was induced or affected by that fraud or those circumstances. There was support for that approach in Barrett. The distortion can occur in more than one way. A decision-maker may be misled by false material dishonestly put before it. Relevant material favourable to a person to be affected by the decision may be deliberately and dishonestly withheld by a third party who would reasonably be expected to disclose it either in the discharge of a statutory duty or by reason of that party’s official responsibilities in the administration of the decision making process. In either case the decision-making process can be said to have been distorted by fraud in a way that induced or affected the decision. The English authorities would support an extension of that proposition to a class of case involving the tender of misleading material or the non-disclosure of favourable material even though no dishonesty was involved.
123 Where a decision-maker acts upon a false impression created as the result of a fraud affecting the conduct of a party before it, then the resulting decision can be said to be induced or affected by the fraud. So a response to an invitation to an oral hearing where the response is in the negative and constitutes a consent to disposition without such a hearing may create the false impression that that consent was voluntarily given when in truth it was obtained by fraud. The proposition that fraud unravels everything in that case applies to the consent upon which the decision-maker acts as well as the decision which results.
124 Division 4 of Part 7 of the Act codifies the content of the natural justice hearing rule in relation to proceedings before the Tribunal. There is nothing in that Division or in the Act which displaces the common law proposition that fraud unravels everything. This is not a case about the natural justice hearing rule. It is a case about fraud. It is well established that common law rules of construction require statutes to be construed consistently with common law doctrines unless there is disclosed a legislative intention to the contrary – Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 553. And see Justice WMC Gummow, The Constitution: Ultimate Foundation of Australian Law? (2005) 79 ALJ 167 at 177.
In this case it was the agent’s recklessness which caused the material to be placed before the Tribunal only on the day of the hearing, despite instructions to do so earlier from the applicant. It must have been apparent to the migration agent that presenting material in this manner was likely to give rise to an adverse inference in relation to the applicant, and the only reason for failing to give an appropriate explanation for the late disclosure of the material would be to cover for his own incompetence or negligence in carrying out the case. Of course, it could be that the failure to give an explanation was further instance of the negligence of the agent before the Tribunal.
The quality of the conduct of a hearing must be seen on a continuum. There will always be a point at which the method of conducting a hearing moves from fraud, to negligence, to tactical decision making by the parties. The material was put before the tribunal and the applicants had an oral hearing. The applicants were not advised against explaining the delay in making the claims, nor was the reason for the delay withheld from them. Had they realised that the reason for the delay would be relevant (and any competent legal practitioner would certainly have realised this) the explanation could have been put before the tribunal. The context of this case does not persuade me that the material demonstrates that there has been a fraud committed on the Tribunal in the sense discussed in the cases.
Procedural fairness
This leaves the question of whether or not the applicants can succeed on the basis of the Tribunal failing to perform its functions adequately under ss.414 and 425. The applicants argue that the tribunal was obliged to put to them the issues about the delay in disclosing material, if the tribunal was to draw an adverse inference form the delay.
The applicants rely upon the decision of the Full Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; (2008) 249 ALR 58 at 7 where Gray J (with whom Giles J agreed) said
7 The second important aspect of s.425(1) is that the evidence and arguments are to relate to "the issues arising in relation to the decision under review." The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.
The facts of SZHKA must be borne in mind. In that case the matter had been remitted for rehearing by the RRT, after a successful judicial review. On the rehearing, the member simply relied upon the material before the previously constituted tribunal and did not invite the applicant for a further oral hearing.
The relevant passage in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152; (2006) 231 ALR 592; (2006) 81 ALJR 515 that Gray J refers to says:
33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" . The reference to "the issues arising in relation to the decision under review" is important.
34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision maker will have given reasons.
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
36 It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
37 That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
38 When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review". It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously ... open on the known material".
39 If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.
40 More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof . And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
In SZBEL, the failure of the tribunal was not as striking as that in SZHKA. In SZBEL the tribunal listened to the account of an applicant and failed to give any indication that it did not accept his account, only to later find that it was ‘implausible’.
In SZBEL (at [50]) the Court found that it was not necessary ‘to consider the larger issues debated in oral argument of the appeal about what, if any, guidance may be had from the course of decisions in the Second Circuit Court of Appeals in the United States concerning plausibility findings.’ The court referred to two decisions from the United States, by way of examples, Ming Shi Xue v Board of Immigration Appeals 439 F 3d 111 (2006); Zhi Wei Pang v Bureau of Citizenship and Immigration Services 448 F 3d 102 (2006).
In this case the plausibility finding is not directly attacked, rather the argument proceeds with respect to procedural fairness – the failure to put to the applicants that recent invention point and allow them to give evidence on the issue. Importantly, in this case they did have a credible explanation for the delay in placing the material before the tribunal. In this respect the case is similar to the conclusion in Ming Shi Xue, where Calabresi J said:
[15] Petitioner does not dispute the "highly deferential" standard of review generally applicable to appeals that call into question an IJ's [immigration Judge’s] credibility determination. See Majidi, 430 F.3d at 79. Rather, petitioner contends, inter alia, that the IJ should not have based his credibility ruling on alleged discrepancies that were not previously raised. Under the circumstances, we agree. Because the asserted inconsistencies were not so dramatic as to be self-evident, cf. Majidi, 430 F.3d at 79, and because neither the IJ nor the government identified the concerns undergirding the IJ's credibility finding before the IJ announced them in his ruling, petitioner was deprived of an opportunity to address and explain the supposed discrepancies. The failure to provide such an opportunity contravenes basic principles of asylum law established by our prior holdings, and requires us to vacate the adverse credibility determination and remand the case for reconsideration.
In this case, like the IJ in Ming Shi Xue, it appears that the Tribunal member has erred in relying upon the late disclosure of the material without first taxing the applicants with the issue.
Whether the visa application would have failed in any event
For the applicants to have succeeded in the visa claim, the harm alleged must have a convention nexus. Usually the harm or threats will be accompanied by direct statements showing that the harm or threat has a convention nexus. Sometimes, however, the harm will be perpetrated without warning and the tribunal must determine wither the harm or threat has a sufficient convention nexus. Thus, a person who has had no connection with any issue that has a convention nexus will not easily be able to convince a Tribunal that any given harm they have suffered is more than merely random criminality. Conversely, the person with a particularly high political profile in a violent and volatile country who suffers harm may easily be able to convince a Tribunal member that the circumstances permit of only one reasonable conclusion on the balance of probabilities – that the harm had a convention nexus.
The real question in this case is whether a strong positive finding with respect to the applicants’ credibility may have impacted upon the Tribunal’s ultimate decision as to whether or not the threats and harm had a convention nexus. Logically, there can be two types of evidence would bear upon the finding of a convention nexus:
a)Direct evidence of a convention nexus, such as reference to the convention nexus in the terms of the threat, or during the harm (for example racial slurs).
b)Circumstantial evidence that shows, to the requisite standard, that the inference of a convention nexus should be drawn. Relevant circumstances in most cases would include:
i)whether the event appeared to be of the style or nature of any random criminality that occurs from time to time in that particular area of the particular country; and
ii)the nature and extent of activities of the Applicant that may give rise to the possibility of harm for a convention based reason, bearing in mind the context of the particular society in which they live; and
iii)the nature and extent of activities of the Applicant that may give rise to the possibility of harm for a reason that has no convention nexus, again, bearing in mind the context of the particular society in which they live.
In this case there is evidence of the subjective reaction of the applicants to the particular events: that is, whether the Applicants reacted on the assumption that they were events of criminality or events that were likely to be convention related. It is difficult to see how the subjective reactions of the applicants could logically bear upon the determination of whether or not there is a convention nexus, as the test for a convention nexus is an objective one.
In this case the failure of the migration agent coupled with a failure to alert the applicants to the importance of the evidence of the delay may have had a significant impact upon the credibility of the applicants with respect to their evidence. Thus, if this impacted upon the findings relating to the direct or circumstantial evidence of a convention nexus or whether the bus collision was deliberate, then the outcome of the decision may have been different, if the difficulties with respect to procedural fairness did not occur.
In order to answer this question it is necessary to look at both the bus collision issue and the court precincts threats claims as the tribunal made findings with respect to the convention nexus issue, in the event that it had erred in rejecting the evidence of the applicant with respect to these two claims.
Bus Collision
The Tribunal addresses the question of whether the evidence with respect to the bus collision is sufficient to draw the inference that the collision was deliberate. The tribunal rejected the proposition that the bus collision was deliberate, saying, at para.57:
[57] … I accept that the document containing a statement about the collision made by the application to the police is genuine. The statement asserts no fact consistent with a deliberate attempt by the intercity bus driver to run down the three-wheeler, nor does it directly make any such allegation. The applicant does not say that, although interviewed by the police, he made any complaint to the police to the effect that the bus driver deliberately aimed to kill or seriously injure him – or, for that matter, the driver and the other passenger of the three-wheeler. The applicant does not suggest that the intercity bus driver was doing anything other than travelling along his normal route, presumably according to his normal timetable. Had the driver planned to run down the applicant, it is a remarkable coincidence of timing that the applicant happened to be sitting in a three-wheeler in the particular location just as the bus came along. …
The findings of the tribunal member are clear, and it is difficult to see how it could be concluded, on the evidence given, that the bus collision was deliberate. However, the tribunal member goes on to say, in para.57:
[57] … Notably, the applicant raised the incident with the bus for the first time in the hearing before the Tribunal. Had he truly believed this to have been an attempt on his life, I would have thought it to be a matter of such significance that he would have brought it to the attention of the Department at the time of his claim.
How the evidence of when the collision claim was raised could logically affect the decision with respect to whether the collision was deliberate is difficult to see. Even if it were found that the applicant had ‘truly believed’ the bus collision was deliberate, this would not have logically supported a finding that the buss collision was deliberate as it was the entirely subjective view of the applicant. As a result, it is difficult to see how the outcome of the decision could have been different had the claims been made from the outset.
Even if the applicant succeeds in showing that the finding that the bus collision was not deliberate should fail, the convention nexus issue remains. The Minister submitted that the reason that the Tribunal rejected the claim that the collision was Convention Related was because the applicant had very little involvement with the UNP and the involvement post-dated the collision. The Tribunal stated at [58]:
[58] The credibility of the applicant’s reliance upon the collision as evidence of persecution is further diminished by his ambivalence in attributing a reason for the bus driver’s allegedly deliberate act of colliding with the three-wheeler. This is because the applicant appeared to put his claim in the alternative: the attempt on his life was made either because of his failure to disclose his son-in-law’s whereabouts, or, alternatively by reason of his involvement with the UNP. As to his political involvement, the applicant’s own evidence (subject to some qualification during the hearing) was that he was not active in the UNP until December 2001, almost two years after the collision between the three-wheeler and the bus. I am also satisfied that there was no connection between the collision and any attempt to harm the applicant. I am satisfied that the collision was wholly accidental and not attributable to any person who sought to harm the applicant because of his failure to disclose his son-in-law’s whereabouts, for any association that he may have had with the UNP, or for any Convention reason. [emphasis added]
The findings with respect to the bus collision are that there was no convention nexus. Whilst there is some degree of infelicitous phrasing in para [58], a reasonable reading of the decision makes clear that the tribunal member was not satisfied that there was a convention nexus with respect to the bus collision.
Allegation of Court Precincts Threats
The Tribunal addresses the question of the threats made to the applicant husband at the Sri Lankan Magistrates Court at paras.63 to 64:
[63] For the present purposes I will accept that the applicant had a cause of action for compensation arising from the accident. I will also accept, for these purposes, that he was a material witness in the proceeding in the Magistrates’ Court. Other than to say that he held fears of unspecified harm from a poorly identified source, should he proceed with a claim, the applicant’s evidence on this point is unconvincing. The applicant appeared to connect his general reluctance to proceed with the compensation claim with the persons that sought to dissuade him from giving evidence in the Magistrates’ Court. I do not accept that he was approached in the Court precincts as he alleges and I do no accept that he declined to give evidence for that reason. No particular harm was threatened in the conversation and no reason was given for the request that he not give evidence to the Court. There was nothing in that conversation which is proportionate to the response the applicant claimed that it produced in him, that is, flight from Sri Lanka.
Counsel for the Minister points out that the Tribunal had an alternative route to the same conclusion. The Tribunal stated at para.65:
[65] …[E]ven were I to accept that the applicant had been threatened at court as he claimed, I am not able to discern in the evidence any connection between such threats and the applicant’s failure to disclose the whereabouts of his son-in-law or his claimed association with the UNP, and consequently I cannot be satisfied that, even had such threats been made, there was any Convention nexus whether by reason of political opinion or otherwise. Similarly, I am unable on the evidence to discern any connection between the collision and the placing of pressure upon the applicant not to give evidence in the Magistrates’ Court. Even had I accepted that he was pressured into absenting himself from the hearing, there is no evidence to support an inference that the pressure was applied for any one of the five Convention reasons. Nor, on the evidence, could it be said that the pressure the applicant claims to have been applied to him mounted to the serious harm required by section 91R of the Act. [Emphasis added]
The Minister submits that it therefore follows that the comments raised by the Tribunal that the claims were raised for the first time in the hearing were not part of the Tribunal’s reason for decision on the convention nexus issue, and could not have affected the outcome of the Tribunal’s decision.
Counsel for the applicants concedes that para.65 means that Convention-nexus in relation to the alleged threats made at court is not as strong as the Convention-nexus in relation to the collision. However, the applicants point to the distinction between [65] which clearly considers the Convention-nexus without the considering the lateness of the claim and [57] to [58], which does not separately consider the lateness of the claim.
It appears clear that the claim would have failed in any event with respect to the court precinct threats. With respect to the bus collision claim it remains to determine whether the apparent bundling of the comments with respect to the late notice of the claim and the convention nexus issue show that the tribunal was impermissibly using the adverse inference flowing from the late claim finding with respect to the convention nexus point. When reading the decision as a whole, I am not persuaded that this is the case, rather that the applicant seeks to take too fine a reading: see generally Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 41 ALD 1; (1996) 70 ALJR 568.
This finding is in accord with that of Tracey J on the appeal to the Federal Court and the reasons of Heydon J on the special leave application. It does not appear that Crennan J sought to make any particular findings, beyond identifying that the applicants had an arguable case that deserved a hearing, and as such did not restrict this court in hearing the matter.
Res Judicata, Issue Estoppel and Anshun Estoppel
In this case I have dealt with the current application on its merits, and found that it ought to be dismissed. In these circumstances there is no need to determine whether the applicant would be estopped from bringing the claim as a result of the principles of res judicata, issue estoppel or Anshun Estoppel.
In the circumstances of this case, I therefore dismiss the application.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Tracey Jones
Date: 15 September 2009
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