S1004 of 2003 v Minister for Immigration
[2005] FMCA 11
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1004 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 11 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class AZ) visa – no arguable case of jurisdictional error on the part of the Refugee Review Tribunal decision previously the subject of a proceeding in the Federal Court – res judicata – issue estoppel – application essentially a repeat of previous application – application dismissed. |
Migration Act 1958 (Cth), ss.476(1)(a), 476(1)(e), 474
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Henderson v Henderson (1843) 67 ER 313
Walton v Gardiner (1993) 177 CLR 378
Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677
BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Re Ruddock; Ex parte LX [2003] FCA 1183
S442/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1240
Applicants M237/2002 v Minister for Immigration & Multicultural & Indigenous Affairs& Anor [2003] FCA 1183
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054
Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 45
Sharma v State Rail Authority of NSW (1998) 85 FCR 391
Wong Tai Shing v Minister Immigration & Multicultural & Indigenous Affairs [2004] FCA 51
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406
Chamberlain v DCT (1988) 164 CLR 502 (also 78 ALR 271) at (CLR) 508
Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR (NSW) 69
Minero Pty Ltd v Rodero Pty Ltd (unrep; 19 July 1998; No 3288/1995; Santow J; Sup Ct of NSW; BC9803546
Isaacs v Ocean Accident and Guarantee Corp Ltd (1957) 58 SR (NSW) 69
Glazier Holdings Pty Ltdv Men’s Health (No 2) [2001] NSWSC 6
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Rogers v R (1994) 181 CLR 251
Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314
Johnson v Gore Wood and Co [2002] 2 AC 1
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | APPLICANT S1004 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1600 of 2004 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1600 of 2004
| APPLICANT S1004 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 May 2000 and handed down on 16 May 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 15 October 1999 to refuse to grant the applicant a protection (Class AZ) visa.
The applicant previously applied to the Federal Court of Australia on 9 June 2000 for a review of the same Tribunal decision. These were proceedings N609 of 2000 and a copy of the application filed therein (“the first application”) was contained in the Court Book (pp.116-119) (“CB”). The first application was the subject of an order, by consent, made by Whitlam J on 6 October 2000 and entered on 19 October 2000 that “the application be dismissed and the applicant pay the respondent’s costs” (CB p.120).
Background
The applicant, who is a citizen of Bangladesh, arrived in Australia on 20 June 1999. On 2 August 1999 he lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 15 October 1999 a delegate of the Minister for Immigration & Multicultural Affairs (“the delegate”) refused to grant a protection visa and on 9 November 1999 the applicant applied for a review of that decision.
The applicant claimed he was a Bangladeshi National, born on 6 November 1973 and that he was a Hindu. The applicant travelled to Australia legally using a passport issued in Dhaka on 7 February 1999 and claimed he did not have any difficulties obtaining a passport. The applicant was travelling on a student visa issued in Dhaka on 15 June 1999. He stated that he lived at the one address in Narayangonj, he finished school in 1994 and worked as a cook between 1995 and 1999.
The applicant claimed that when he was at college he was a victim of fundamentalist Muslim students who abused him on various occasions which led him to become involved in politics. The applicant claimed he joined the Jatio (Jatiya) Party, became the sports secretary of the local committee of the Party and helped organise various religious rituals. He claimed he was a devout Hindu and was involved in an organisation called “Hindu Buddha Christian Okay Parisad”. The applicant also claimed that his affiliation to the Jatio Party made him an important political figure in society (CB p.27).
The applicant claimed he attended various meetings of the two organisations and local Muslim fundamentalist groups became angry with him. These groups attacked and insulted members of the organisations during the Babri Mosque conflict in Bangladesh and ransacked his house and temple. The applicant claimed that with the help of other members of the Hindu Buddha Christian Okay Parisad he organised a protest gathering against the activities of the Muslim fundamentalists. He claimed the Muslims destroyed many temples in Narayangonj (CB p.27).
The applicant claimed that on 16 January 1999 he was admitted to a private clinic for two weeks after a group of Awami League supporters attacked him and severely beat him at a railway crossing. He stated that after this incident certain Hindu people involved with the Awami League filed a false claim against him in order to destroy his political career (CB p.28).
The applicant claimed that fundamentalist Muslim members tried to murder him on six or seven occasions because of his involvement in the Hidu Okay Parisad but each time he managed to escape. He stated that he complained to the police about these incidents but the police would take no action and therefore he went into hiding. While absent from his home, the applicant claimed his family members were insulted and had their belongings destroyed by fundamentalists, who threatened that the applicant would be killed if he was found. The applicant claimed he was advised by his organisation to leave the country (CB p.28).
The Tribunal’s findings and reasons
The Tribunal found that the applicant’s claims were vague, implausible, internally inconsistent and inconsistent with the independent evidence. The Tribunal found that the applicant was not a credible or reliable witness (CB p.108).
The Tribunal accepted that the applicant was a Hindu but did not accept that there was a real chance that Muslim fundamentalists would persecute him for this reason in the reasonably foreseeable future if he were to return to Bangladesh. The independent evidence before the Tribunal indicated that Hindus form the largest religious minority in Bangladesh and that they perceive and experience discrimination from the Muslim majority. The independent evidence specifically indicated that Hindus and other religious and ethnic minorities have been unable to recover land holdings lost because of discrimination against them and that in past years there have been cases of violence against religious minorities. However, the Tribunal also noted from independent evidence that the last major incident of violence was in 1992, that minor incidents of violence occurred around the 1996 elections and that discrimination against minorities was not widespread (CB p.108).
The Tribunal then reviewed each piece of evidence that was put forward by the applicant in support of his claim. The Tribunal accepted some of these statements but in many cases dismissed them because they were inconsistent within themselves or they were contrary to the independent country advice. In summary, the Tribunal made the following finding:
“Overall, I do not accept that [the applicant] was a member of the Jatiya Party or a member of the Bangladesh Hindu Buddha Christian Oikya Parishad. I do not accept that there are false charges against him. I do not accept that attempts were made to kill him. Whilst I accept that [the applicant] is a Hindu, I do not accept that he was denied the right to practise his religion or that he was restricted in his religious practise. I am of the view that the chance [the applicant] would face persecution for reasons of his religion in Bangladesh in the reasonably foreseeable future is remote. I do not accept that [the applicant] was of any interest to the Bangladesh authorities, to the Awami League or to Muslim fundamentalists at the time he left Bangladesh, or that he is of interest to any of these groups currently. I am not satisfied that [the applicant] has a well-founded fear of persecution for a Convention reason.” (CB pp.113-114)
Application for review of the Tribunal’s decision
On 27 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“1.The procedures that were required by the Act and Regulations to be observed in connection with making of the decision were not observed.
2.That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law to the fact as found by the Tribunal.
3.The Tribunal did not consider all the documents, which were submitted by the applicant with any reasons, a jurisdictional error was occurred by the Tribunal.”
The applicant attended a directions hearing on 3 September 2004 and consented to Short Minutes of Order requiring the applicant to file and serve an amended application setting out the full grounds and particulars of those grounds together with any supporting evidence and affidavit to be relied upon on or before 15 November 2004. The applicant was also required to file and serve any written submissions seven days prior to the hearing date. Neither of these orders was complied with.
Submissions
The applicant appeared self represented with the aid of a Bengali interpreter. When the applicant was invited to make any oral submissions in support of his application he made a number of general statements in relation to his own personal situation and the experiences that he had had in Bangladesh and made a statement that the fundamentalist Muslims were now in power in his country. When requested to be more specific as to the jurisdictional errors made by the Tribunal in its decision, the applicant was not forthcoming other than to state that the Tribunal’s decision was wrong and that the Tribunal had not considered the documents he had supplied in support of his claim.
Mr G T Johnson of Counsel, appearing for the respondent, filed written submissions prior to the hearing. The first issue that the Court was taken to was the issue that the applicant had previously applied to the Federal Court on 9 June 2000 for a review of the same Tribunal decision. As also noted above at paragraph 2, those were proceedings known as N609/2000 and a copy of the applicant’s application filed therein was identified as pages 116 and 117 of the Court Book. The first application was subject to an order, by consent, made by Whitlam J on 6 October 2000 and entered on 19 October 2000 that “the application be dismissed”. His Honour also made an order that the applicant pay the respondent’s costs.
It was submitted that the application before this Court raised three grounds. The first of those grounds was stated in terms of the now repealed s.476(1)(a) of the Act. The second ground of the application was expressed in terms of the now repealed s.476(1)(e) of the Act. The third ground was expressed in somewhat confusing terms. Counsel submitted that the ground did not particularise or formulate any particular jurisdiction at all. Counsel argued that the first sentence appeared to question whether the Tribunal should have seen the applicant’s case as made good by documents submitted by him, and a complaint that the Tribunal did not weigh the evidence as the applicant would have wished is not jurisdictional error and really only sought to cavil with the merits of the Tribunal’s decision. It was further submitted that there was no jurisdictional error, nor any error of any kind recognised by the old s.476, involved in the failure of the Tribunal to give reasons and that no such failure was conceded in the present case. On the contrary, Counsel contended, the Tribunal’s reasons were detailed and full: Minister for Immigration & Multicultural Affairs v Yusuf. Counsel submitted that if the complaint was that some competing body of evidence (contrary to the conclusions reached by the Tribunal) was not mentioned or grappled with, that was not a jurisdictional error. In Paul v Minister for Immigration & Multicultural Affairs, Alsop J (with whom Heerey J agreed) explained at [79]:
“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed …”
Counsel submitted that comparing the grounds of the current application before this Court with those set out in the first application (CB p.117), revealed obvious overlaps. Ground 2 of the first application alleged (without particularisation) “some errors in deciding the fate of the applicant’s claim in accordance with section 476(1)(e)”. It was submitted that that equated with ground 2 in the present application. Ground 3 of the first application complained that “the Tribunal did not put any weight on the applicant’s documents and the Tribunal took various irrelevant considerations in this case, which falls in section 476(3)(d) …”. Counsel submitted that the first part, at least, of that ground appeared to be the same complaint the applicant made in ground 3 of the present application.
Ground 4 of the first application was very wide and simply stated that “the Tribunal made a number of errors in deciding this case”. It was submitted that it was difficult to see how any error (which was now alleged) whether jurisdictional or otherwise would not fall within that formulation. Counsel further submitted that the first ground in the present application (alleging that the Tribunal did not observe procedures required by the Act and Regulations to be observed in connection with the making of its decision), though not appearing in terms of the first application, would not be outside the wide language of ground 4 of the first application and, in any event, plainly followed the form of the old s.476(1)(a) and could therefore have been included in the first application.
The respondent’s Counsel contended that the present application should be dismissed upon the basis that the consent dismissal of the proceedings before Whitlam J created a res judicata or, alternatively, an issue estoppel, or at least an Anshun estoppel with respect to the present application. Counsel further contended that in the further alternative, the present proceeding was an abuse of process and should be dismissed on that basis.
It was submitted that the principles of res judicata, issue estoppel, Anshun estoppel and abuse of process: Henderson v Henderson; Walton v Gardiner, apply to administrative law cases: see Somanader v Minister for Immigration & Multicultural Affairs (“Somanader”) per Merkel J at 686-693; BC v Minister for Immigration & Multicultural Affairs (“BC”) and on appeal at [22]-[30]; Re Ruddock; Ex parte LX per Heerey J especially at [48]-[53]; S442/2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Alsop J at [23]-[29]; Applicants M237/2002 per North J at [28]-[30]; Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs (“Thayananthan”) per Merkel J at [33] and following: Applicants S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Madgwick J at [41]-[45].
Counsel submitted that in respect to claims that have, in substance, already been made, res judicata and issue estoppel operated to prevent them from being brought again and that the Court had no discretion in this respect: Thayananthan per Merkel J at [37], referring to his earlier decision in Somanader at [44] with respect to res judicata and also referring to Sharma v State Rail Authority of NSW at 397 with respect to issue estoppel; Wong Tai Shing v Minister Immigration & Multicultural & Indigenous Affairs per Lindgren J at [41]-[42]. It was submitted that res judicata applied to any cause of action determined in substance between the parties in the original proceedings: Thayananthan per Merkel J at [33]; Somanader per Merkel J at [45]; Daniel v Minister forImmigration & Multicultural & Indigenous Affairs per Goldberg J at [18]-[23], applying Somanader; Applicants S311 of 2002 at [41]-[44]; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd per Gummow J at 418. In Wong Tai Shing at [43] Lindgren J referred to the need for a “final judgment (albeit appealable) within jurisdiction …”, “raising the same cause of action” between the same parties – and proceeded to apply that line of authority.
It was submitted that issue estoppel applied to any issue necessarily decided (again, as a matter of substance) in the prior proceeding between the parties: Thayananathan per Merkel J at [51], citing Blair v Curran at 532; Wong Tai Shing at [44] and [70]-[71] and that to the extent that these proceedings raised the same issues that were raised before, an issue estopped arose – and probably also res judicata.
Counsel further submitted that res judicata applied to judgments obtained by consent, including a judgment giving effect to a compromise of an action: Chamberlain v DCT at 508; Isaacs v Ocean Accident and Guarantee Corp Ltd at 75; Minero Pty Ltd v Rodero Pty Ltd. It was submitted that, consent orders of a Court gave rise to an issue estoppel and that the consent order had the quality of a final judgment. Counsel contended that the fact that the judgment was by consent did not detract from its conclusive effect upon the issues determined by it and the issue estoppel operated as to those matters necessarily determined by it: Isaacs at 75; Glazier Holdings Pty Ltdv Men’s Health (No 2) at [69]-[73].
With respect to any new cause of action, Counsel submitted that Anshun estoppel would still apply to prevent any claim that could reasonably have been made in the prior proceeding: Thayananthan per Merkel J at [36]; Daniel at [24]-[25]; Wong Tai Shing at [49] – at least in the absence of “special circumstances”: see Thayananthan per Merkel J at [37] referring to BC at [22]-[30]; Daniel per Goldberg J at [27]-[29]; Wong Tai Shing per Lindgren J at [49] and, to the extent that the present application raised arguments that were not raised in the earlier proceedings, the applicant faced at least an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd at 602. It was submitted that no “special circumstances” were shown that might prevent an Anshun estoppel from arising.
Counsel submitted that the present proceedings appeared to be an abuse of process and that one matter that would render the proceeding an abuse of process would be if it was for the collateral purpose not of remedying a perceived jurisdictional error but of extending the applicant’s stay in Australia: NALE v Minister for Immigration & Multicultural & Indigenous Affairs at [12]. It was submitted that regardless of whether such a purpose could be shown, the repeated bringing of similar applications, where it would be unjustifiably vexatious or oppressive, or would bring the administration of justice into disrepute, was an abuse of process: Walton v Gardiner at 393; Rogers v R at 255-256; Chu v Minister for Immigration & Ethnic Affairs at 323-326. Counsel contended there was an underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter: Johnson v Gore Wood and Co [2002] 2 AC 1 per Lord Bingham at 22-34; SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479 at [11]-[13].
Counsel noted that, in addition to the proceedings dismissed by Whitlam J, the applicant was also a party to the Muin and Lie class action, but withdrew from it on 19 June 2003 and that an individual action (of that kind) commenced by the applicant was dismissed in April 2004. The respondent, it was submitted, relied principally upon the consent dismissal before Whitlam J of the first application noted above at paragraphs 2 and 17.
It was submitted that the Tribunal identified and considered the applicant’s claims and that the decision of the Tribunal was based upon findings of fact within its own domain. Counsel contended that the Tribunal was entitled to dismiss the application, for the reasons it gave (CB pp. 107-114) and its decision was based largely upon the view of the applicant’s credibility being a matter for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”) per McHugh J at [67]. It was submitted that there was a rational basis for the Tribunal’s decision, but, even if that were not so, want of logic in the Tribunal’s reasons was not an available ground of review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs per Kiefel, Marshall and Downes JJ at [18], applying NATC v Minister for Immigration & Multicultural & Indigenous Affairs at [25], which in turn approved NACB v Minister for Immigration & Multicultural & Indigenous Affairs, see also W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [35]. Counsel submitted that the Tribunal was not shown to have made a jurisdictional error and its decision was entitled to the protection of the privative clause contained in s.474 of the Act.
Conclusion
The applicant in these proceedings was self represented and made limited oral submissions from the bar table which did not address the subject matter of the review before this Court and did nothing to supplement the pleaded grounds. The grounds in the application are vague and unparticularised and the applicant failed to comply with the directions of the Registrar of this Court to file and serve an amended application with supporting affidavit and evidentiary material.
Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. Although the wording in the current application was not identical to the grounds pleaded in the original application made to the Federal Court, the substance of the two sets of pleadings was the same. The consequence of this was that the applicant was attempting to re-invigorate an issue that had already been placed before the Federal Court and dismissed by the Honourable Whitlam J.
Before considering whether the matter should be dismissed on the grounds of res judicata, issue estoppel or Anshun estoppel, I should consider whether the applicant has raised any issue of a jurisdictional error made by the Tribunal in its original decision dated 2 May 2000. Although the applicant made allegations of Tribunal errors, these were not identified or particularised in any way. On a fair reading of the Tribunal’s decision, the substantive reason for the Tribunal reaching its decision was the lack of the applicant’s credit which was an issue for the Tribunal par excellence: Durairajasingham per McHugh J at 67.
The Tribunal found the applicant’s claims vague, implausible, internally inconsistent and inconsistent with independent evidence which led the Tribunal’s finding that the applicant was not a credible or reliable witness. The Tribunal, in a systematic manner, took each issue of the applicant’s claims and dealt with them, firstly in isolation and then with a comparison of background country information to assess the credibility of each claim. If the applicant claimed that this process adopted by the Tribunal was in any way flawed because it failed to carry out this analysis in a rational way, any argument that a want of logic in the Tribunal’s reasons led to jurisdictional error would not be sustainable. This specific claim was not made. However, in the absence of pleadings and particulars to specific errors committed by the Tribunal, an independent examination of the decision would have to canvass this aspect because of the general imputation that the Tribunal failed to consider documents submitted by the applicant and that incorrect interpretation had been placed on other material submitted to support the applicant’s claim. It had to be assumed that the approach of the Tribunal was illogical if these claims were to succeed. However, a substantial line of authority established that the want of logic was not available as a ground of review: VWST per Keifel, Marshall and Downes JJ at [18]:
“We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].”
A review of the Tribunal’s decision did not suggest an issue that would be grounds for jurisdictional error. On that basis, I believe the application is not sustained and should be dismissed. Reverting to the previous issue of res judicata and issue estoppel. Does the application of these principles unfairly prevent the applicant a review? I believe the response is no. The applicant was not denied the opportunity for a review in the circumstances where a self represented litigant has been unable to articulate the grounds of review of a defective Tribunal decision nor was he denied a remedy because of a technicality that may have arisen due to poor, ill advised or uneducated advice to a party that is unable to avail himself of competent legal representation. I accept the respondent’s submissions in support of applying both res judicata and issue estoppel as a further basis that the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 January 2005
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