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Re Ruddock; Ex Parte LX

Re Ruddock; Ex Parte LX

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FEDERAL COURT OF AUSTRALIA
Re Ruddock; Ex Parte LX [2003] FCA 561
MIGRATION – protection visa – rejection of application affirmed by Refugee Review Tribunal – High Court application for order nisi for certiorari, mandamus, prohibition and an injunction – remitted to Federal Court – application for extension of time – whether jurisdictional error in failure to give separate consideration to each applicant’s claim – whether actual bias – whether res judicata, issue estoppel or Anshun estoppel in respect of actual bias or jurisdictional error claims in earlier Federal Court proceedings – no extension of time
Judiciary Act 1903 (Cth) s 44(2A)
Migration Act 1958 (Cth) s 36
High Court Rules O 55 rr 17, 30, O 60 r 6
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 22 – applied
Gallo v Dawson (1990) 64 ALJR 458 – applied
Hughes v National Trustees Executives and Agency Co of Australasia Ltd [1978] VR – applied
Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 – cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – applied
Port of Melbourne Authority v Anshun Pty Ltd(No 2) [1981] VR 81 – applied
Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 – followed
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 – applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 – cited
RE RUDDOCK; EX PARTE LX
V169 OF 2003
RE RUDDOCK; EX PARTE MX
V170 OF 2003
HEEREY J
18 JULY 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V169 AND V170 OF 2003

IN THE MATTER Of AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND PROHIBITION AND FOR AN INJUNCTION AGAINST

JUDGE:

THE HONOURABLE PHILIP RUDDOCK, HER MAJESTY'S MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

DR RORY HUDSON SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DR PETER NYGH IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

LX AND MX
APPLICANTS

HEEREY J

DATE OF ORDER:

18 JULY 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for an order nisi for writs of mandamus, certiorari and prohibition and an injunction, insofar as it is based on grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi, being exhibit KPA-5 to the affidavit of K P Aravindan affirmed 21 August 1998, is dismissed.

2.        The applicants pay the respondents’ costs of the proceedings in the Federal Court.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

    V169 AND V170 OF 2003

IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND PROHIBITION AND FOR AN INJUNCTION AGAINST

THE HONOURABLE PHILIP RUDDOCK, HER MAJESTY'S MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 561
Decision Date: 18 JULY 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Ruddock; Ex Parte LX involved two applicants who sought to challenge the decisions of the Minister for Immigration and Multicultural Affairs regarding their refugee status applications. The applicants argued that the Minister had failed to consider relevant evidence, misapplied the Migration Act, and acted irrationally in rejecting their claims for refugee status. The applicants contended that they would face persecution if returned to Sri Lanka due to their connections with the Liberation Tigers of Tamil Eelam (LTTE).

The central legal issues before the court were whether the Minister had erred in his assessment of the applicants' refugee status applications and whether those errors warranted judicial intervention. Specifically, the court had to determine if the Minister's decision was based on relevant considerations, if the applications had been assessed fairly and rationally, and if the Minister had adhered to the proper legal framework under the Migration Act.

The court examined the evidence and arguments presented by the applicants and found that the Tribunal had properly considered all relevant materials in making its assessment. The court identified significant inconsistencies in the applicants' accounts, particularly concerning the timing of the bombing of the Navali church and the application for a visit visa by the applicants' father. These inconsistencies undermined the credibility of the applicants' claims. Furthermore, the court concluded that the Minister's decision was not irrational and that the applicants had not demonstrated any grounds for the court to intervene. As such, the court dismissed the application for judicial review and ordered the applicants to pay the respondents' costs of the proceedings.

Orders

Orders of the court

1. The application for an order nisi for writs of mandamus, certiorari and prohibition and an injunction, insofar as it is based on grounds of review set out in pars 1, 3, 5, 6, 7, 8, 9 and 10 of the draft order nisi, being exhibit KPA-5 to the affidavit of K P Aravindan affirmed 21 August 1998, is dismissed.

2. The applicants pay the respondents’ costs of the proceedings in the Federal Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY J

In March 1995 the family moved to Anaikkoddai. They were at the Navali church when it was bombed by the Sri Lankan air force. At that point, the family dispersed. The father disappeared and had not been seen since. In September 1995 the first applicant travelled with her mother and an uncle to Colombo. They lived at a lodge in the Pettah District until January 1996. At the lodge the first applicant met a female LTTE fighter named Kala whom she had known in Jaffna. After the Central Bank bombing by the LTTE at the end of January 1996 police came to the lodge looking for Kala and took the first applicant into custody. The police interrogated her about Kala and detained her until 10 April 1996. During this time she was tortured. Immediately after her release she applied to the Australian High Commission and came to Australia in June 1996 using a false passport which had been arranged for her by an agent. The first applicant claimed she will be persecuted upon return to Sri Lanka because of her connections with the LTTE. She also says that the LTTE are looking for her because she deserted from the North. Tribunal’s decision on the first applicant’s case Under the heading “Assessment” and the sub-heading “Credibility” the Tribunal stated that for the purposes of assessing the case it had considered the first applicant’s Compliance interview, refugee status application form, Departmental interview and Tribunal hearing, together with documents submitted by her or on her behalf, as well as the same materials relating to the second applicant. It had also considered the refugee application form of the applicants’ brother. The Tribunal stated that upon comparison of all the materials “significant inconsistencies and implausible claims” appeared which had satisfied it that the greater part of the account of the first applicant was not credible. A critical part of the first applicant’s narrative was the bombing of the Navali church. This occurred on 9 July 1995. However on many occasions at the Departmental interview the first applicant had asserted that it occurred on 9 April 1995. This was a difference of three months in the date of a major incident in the first applicant’s life and was repeated, not under pressure, many times by both the first applicant and her sister. The Tribunal thought that a “significant difficulty” for the first applicant’s case was that her father, allegedly missing since the Navali church bombing, had lodged with the Australian High Commission in Colombo in April 1996 an application to visit Australia. An address in Colombo was given, the form was signed and a photograph, admitted to be that of the first applicant’s father was included. The application was supported by a number of documents which represented the family as having lived in Colombo for some time, with the father employed there and the two daughters studying. The first applicant had maintained that the signature was false, and so were the documents supporting the application and most of the information in the application form, including the address. She said that all these were arranged by the agent. She further said that it had been arranged for a person who physically resembled her father to attend the interview if necessary.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V169 AND V170 OF 2003