MZXJS v Minister for Immigration
[2006] FMCA 832
•6 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJS v MINISTER FOR IMMIGRATION AND ANOR | [2006] FMCA 832 |
| MIGRATION – Refugee Review Tribunal – res judicata – application dismissed. |
| Migration Act 1958, s.477 |
| MZRAE v Minister for Immigration [2005] FMCA 40 MZRAE v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FCA 1503 MZRAE v MIMIA & Anor [2006] HCATrans 170 |
| Applicant: | MZXJS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 570 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 June 2006 |
| Date of last submission: | 6 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitor for the First Respondent: | Mr Mosby |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 1 May 2006 be dismissed.
The Applicant do pay the First Respondent’s costs, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 570 of 2006
| MZXJS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
First Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal. That decision was made on 26 June 2003, affirming a decision of a delegate of the first respondent not to grant a protection visa to the applicant.
The applicant first applied to the Federal Magistrates Court on
31 July 2003 seeking judicial review of the Refugee Review Tribunal's decision. The application was heard on 20 July 2004 by Bennett FM, as her Honour then was. Her Honour handed down a decision on 24 January 2005, dismissing the applicant's application: see MZRAE v Minister for Immigration [2005] FMCA 40. That decision runs to
15 pages. The particulars of the application before her Honour read as follows:
It [the RRT] failed to deal with and ignored the applicant's claim that she faced a well-founded fear of persecution on the grounds of imputed political opinion by reason of her past and continuing profile as the sister of a deceased hero of the LTTE, alone or compounded by her status as a vulnerable young adult woman.
Her Honour, at paragraph [37], said that the tribunal made a finding of fact on the evidence and that what the applicant sought to attribute to the tribunal as errors of law or jurisdiction are in fact criticisms of the tribunal for failing to make the findings of fact that the applicant wanted to be made on the evidence.
Her Honour, at paragraph [38], concluded that the tribunal's findings of fact were open to it on the materials before it. Her Honour also dealt with a complaint about issues concerning a copy of the applicant’s brother’s death certificate.
This decision was the subject of an appeal to the Federal Court. The appeal was heard by Sundberg J who, in a six‑page judgment, dismissed the appeal with costs: see MZRAE v Minister for Immigration& Multicultural & Indigenous Affairs [2005] FCA 1503.
The applicant then sought special leave to appeal the High Court, which was dismissed by Hayne J on 11 April 2006: see MZRAE v MIMIA & Anor [2006] HCATrans 170.
The grounds of the application that the applicant now brings are particularised as follows:
The obtaining of a death certificate for the applicant’s brother was a relevant consideration which the tribunal should have taken into account and the tribunal did not consider this an important factor as it stated “this is not material to the matter on which I need to decide.”
There was evidence for the tribunal to conclude that there was a real chance that the applicant would face persecution, including mistreatment in custody, because of her ethnicity and an associated political opinion and because of her membership of a particular social group defined as Rajeswaran’s family.
The tribunal is clearly wrong when it says that the loosened security arrangements have now been in place for well over a year and the LTTE and its members are now able to operate politically with few restrictions. The tribunal has based its decision on a wrong issue.
It appears to me that these issues have been dealt with by her Honour Bennett FM and to the extent that they may not be precisely the same issues, they are all issues which ought to have been raised in that hearing. For this reason, it appears to me that the matter is the subject of either res judicata, issue estoppel or Anshun estoppel.
In light of this, I therefore must dismiss the current application.
Even if I be wrong in this regard, the application currently before me is outside of the time limits provided for in s.477 of the Migration Act 1958, even if the applicant were to obtain the maximum extension of the time limit. For this reason, the application must also be dismissed.
In the circumstances, I therefore formally dismiss the current application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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