MZXOW v Minister for Immigration
[2007] FMCA 1191
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXOW v MINISTER FOR IMMIGRATION | [2007] FMCA 1191 |
MIGRATION – Refugee Review Tribunal – application out of time – reinstatement of application – no prospect of success – issue estoppel.
| Migration Act 1958, s.477 |
| Applicant: | MZXOW |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG315 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 21 May 2007 |
| Date of last submission: | 21 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms M. Ngo |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 26 April 2007 be dismissed.
The applicant pay the respondent’s costs, fixed in the sum of $1000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 315 of 2007
| MZXOW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application to set aside orders that I made on 23 April 2007 dismissing this case on the non-appearance of the applicant. The applicant says that he attended on the 23rd of April 2007 but could not find the courtroom and by the time he did find the courtroom, the case had been dismissed. Whether or not he has shown an adequate explanation, given that this is not the first time that he has failed to appear in proceedings, is not a question that I need focus upon as it appears to me that his application must inevitably fail on the basis that he does not have an arguable case in any event.
The history of the matter is conveniently summarised in the written submissions of the first respondent as follows:
1 November 2000 Applicant arrived in Australia.
23 November 2000 Applicant applied for a protection visa.
29 November 2000 Delegate of the first respondent refused to grant the applicant a protection visa.
20 December 2000 The applicant applied to the second respondent refused to grant the applicant a protection visa.
21 June 2002 The Tribunal handed down its decision dated 29 May 2002, which affirmed the delegate’s decision.
22 July 2002 Applicant lodged an application for an order nisi in the High Court of Australia.
7 February 2003 Hayne J. remitted the application to the Federal Court of Australia. The application was subsequently transferred to the Federal Magistrates Court of Australia.
19 February 2004 The then Chief Federal Magistrate Bryant dismissed the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to non attendance of the applicant at hearing.
3 March 2004 Applicant lodged an application for leave to appeal to the Full Federal Court from the judgment of then Chief Magistrate Bryant.
18 March 2004 Applicant’s application for leave to appeal dismissed by Merkel J.
24 May 2004 The then Chief Federal Magistrate Bryant refused to set aside the orders of 19 February 2004 on the basis that the applicant did not have an arguable case.
28 May 2004 Applicant sought leave to appeal from the orders of then Chief Federal Magistrate Bryant.
22 June 2004 Heerey J refused the application for leave to appeal.
16 July 2004 Applicant filed an application for special leave to appeal from the judgment of Heery J.
27 April 2005 Application for special leave refused by the High Court of Australia.
9 February 2007 Applicant commences this current application.
In the Refugee Review Tribunal decision of 29 May 2002, it is recorded that on 28 March 2000 the Tribunal had written to the applicant, advising him that the Tribunal was unable to make a favourable decision on the basis of the information he had provided and inviting him to attend a hearing on 8 May 2000.
By letter dated 7 May 2000, he advised the Tribunal that he would like to have the Tribunal proceed to its decision without a hearing. He did not submit any further written material to the Tribunal but relied upon the material in the department's case file despite its letter indicating it was unable to make a favourable decision on the basis of the material it then had.
At page 3 of the decision the Tribunal sets out the substance of the applicant's claims as follows:
The applicant is a Burgher and aged in his early fifties. He claimed that he was a “strong” and active supporter of the UNP; and that after the PA won the general elections in 1994, PA supporters would go to his home to threaten and assault him. Further, he claimed that after the October 2000 general elections were announced, he and other UNP supporters were attached by “PA thugs” at several UNP rallies; he received threatening telephone calls and letters on three occasions; PA supporters harassed, intimidated and assaulted him on the street; and, despite him making complaints to the authorities, they took no action to protect him. He also claimed that after the election results were known, the persecution of him by PA supporters worsened.
The decision was the subject of proceedings in the High Court and ultimately remitted to the Federal Magistrates Court where it was dealt with by Bryant CFM, as her Honour then was. It then went on appeal before Heerey J who dismissed the appeal. I note that in the judgment of Heerey J, his Honour again considered the substance of the applicant's claims:
The Chief Federal Magistrate summarised the decision of the Tribunal. The claim for refugee status was put by the applicant on the basis of fear of persecution by reason of the fact that he was a strong and active supporter of the UNP party in Sri Lanka. He claimed that he was harassed and threatened by opposition supporters of the rival PA party before the general election in 1994 and the authorities took no action to protect him despite making complaints. He has also claimed that he was harassed and attacked by PA supporters after the October 2000 general election.
The applicant in his application before me applies on the following ground:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
The Tribunal has not given proper consideration to all my claims and therefore its conclusion that I do not have a well founded fear of prosecution by PA supporters for reasons of my support of the UNP is wrong.
In support of this ground he has filed an affidavit where he sets out the claims that he relies upon at para 5 as follows:
[5] In Sri Lanka I was a strong and active supporter of the UNP and that after the PA won the 1994 General Elections, the PA supporters would go to my home to threaten and assault me. I was harassed, intimidated, received threatening telephone calls and letters and I was even assaulted. I made complaints to the authorities but they took no action to protect me.
It is abundantly clear that the material he relies upon to allege that the Tribunal failed to give proper consideration to all of his claims is almost identical to the very claim that the Tribunal specifically referred to and that Heerey J had regard to in the appeal decision.
In these circumstances it appears clear that the applicant's case has been considered not only by the Tribunal but the nature of the case considered in previous proceedings. The applicant is therefore estopped by way of res judicata or issue estoppel from bringing further proceedings with respect to this issue relating to the decision on the Tribunal. In addition, as counsel for the Minister of Immigration points out, the applicant has filed an application well outside of the time limit provided for in s.477 of the Migration Act 1958. Indeed, for this reason alone the application must necessarily be dismissed.
The applicant raises before me concerns that the circumstances in Sri Lanka in the last year or so have become substantially worse. He annexes material from newspapers and other reports in the current calendar year describing the situation in Sri Lanka at present. He says that the circumstances have materially altered. Had he returned to Sri Lanka at the time that he was unsuccessful in the last proceedings, it would have been open to him to again apply for refugee status and a protection visa in light of the new material and he was of the view that that gave him fresh rights. However, it certainly does not provide an appropriate ground for judicial review of the existing decision. Whether or not he has any rights to apply onshore for a further protection visa is a matter that he would have to take up with the department.
In the circumstances I am therefore of the view that:
a)the applicant's claim has no merit based upon the material before me, the decision of the Tribunal and the previous judgments;
b)the applicant's claim cannot be brought as a result of the doctrines of res judicata and issue estoppel;
c)the applicant's claims cannot be brought as a result of the time limit in s.477 of the Migration Act; and
d)the fresh material that the applicant relies upon today is not a basis from which to seek judicial review of the decision the applicant attacks in these proceedings.
In these circumstances I am of the view that the applicant has no arguable case. It is therefore academic whether or not he had a proper excuse or reason for failing to appear on the previous occasion. The proceedings must necessarily fail in any event. I therefore dismiss the applicant's application to reinstate the proceedings.
On the question of costs, the respondent has been wholly successful in these proceedings. In these circumstances I am of the view that the respondent ought to receive its costs. The amount sought is $1000, and having regard to the lump sum amounts provided for in the Federal Magistrates Court scale and the work involved in these proceedings, I am satisfied that this is a reasonable sum.
The applicant asks that I discharge the previous costs order on the basis that he was unable to locate his name in the court lists and the court room which led to the costs being incurred on the last occasion. Even if that be correct, it appears to me that the Minister has incurred costs on both the last occasion and on this occasion and there has been no fault on the part of the Minister.
The costs on the last occasion, at the best for the applicant's case, are costs that are part of the exigencies of litigation. There is no reason in my view why the applicant should not pay the Minister's reasonable costs of the whole of these proceedings in the circumstances of this case, particularly having regard to the fact that this case is brought after the applicant has already had proceedings in this court and appealed that decision to the Federal Court and to the High Court and lost on each occasion and further sought that the Minister provide him with a visa under s.417 and has been unsuccessful in that regard as well. In the circumstances I do not propose to discharge the previous costs order. I will order that the applicant pay the respondent's costs fixed at $1000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Averil Tan
Date: 23 July 2007
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