S1141 of 2003 v Minister for Immigration
[2006] FMCA 781
•25 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1141 of 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 781 |
| MIGRATION − Review of RRT decision − where applicant had previously unsuccessfully applied for review in Federal Court − where applicant joined Muin and Lie class actions and was subsequently dismissed − whether proceedings barred due to issue estoppel or Anshun estoppel − whether special circumstances such that judicial discretion should be exercised to allow matter to be heard − whether decision of Federal Court incorrect on grounds of later clarification of the law in relation to ‘systematic persecution’. |
| Migration Act 1958, s.476 |
| Nitish Chandra Barua v Minister for Immigration [1998] 626 FCA. Applicant S1174 of 2002 v Refugee Review Tribunal & Anor [2004] FCA 289 Rajaratnam v Minister for Immigration (2000) 62 ALD 73 Perampalam v Minister for Immigration (1999) 55 ALD 431 Minister for Immigration v Sarrazola (1999) 95 FCR 517 Wong v Minister for Immigration (2004)204 ALR 722 Chan Kee Yin v MIEA [1989] 169 CLR 379 Murugasu v Minister for Immigration (1987) 217 ALR 17 Applicant S1198/2003 v Minister for Immigration [2005] FCA 1349 Minister for Immigration v Haji Ibrahim [2000] 204 CLR 1 Applicant A87 of 2003 v Minister for Immigration [2004] FCA 919 BC v Minister for Immigration [2002] FCAFC 221 |
| Applicant: | APPLICANT S1141 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 728 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 May 2006 |
| Date of Last Submission: | 25 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Respondent: | D Watson, Australian Government Solicitors |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
The Refugee Review Tribunal to be added as the second respondent to these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 728 of 2004
| APPLICANT S1141 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me a Further Amended Application in respect of proceedings initially commenced in this court in March 2004.
The proceedings are somewhat unusual because they seek judicial review of a decision of the Refugee Review Tribunal made on
30 December 1997 which were the subject of an unsuccessful application for review to the Federal Court heard by her Honour, O'Connor J, on 10 June 1998: Nitish Chandra Barua v Minister for Immigration [1998] 626 FCA. After the failure of the application to the Federal Court, the applicant did not take the expected step of appealing to a Full Bench of that court but joined the Muin and Lie class actions. When his claim as a member of that class action was finally determined by Emmett J in 2004 in Applicant S1174 of 2002 v Refugee Review Tribunal & Anor [2004] FCA 289, he immediately filed these proceedings.
The grounds of the application before me as set out in the
Further Amended Application are:
“1.The Tribunal accepted that the applicant was kidnapped and held for ransom in 1987, but concluded that the applicant "was kidnapped not because he is a Buddhist, but because he was perceived to be an appropriate target for extortion". The Tribunal fell into jurisdictional error in making this finding.
2.The Tribunal found that "the treatment of Buddhists in Bangladesh is neither systematic nor serious enough to amount to persecution within the meaning of the convention". The Tribunal fell into jurisdictional error in making this finding.”
The respondent argues that the proceedings, as articulated in this further amended application, are proceedings which are barred by virtue of the doctrine of issue estoppel or alternatively the doctrine of Anshun estoppel. I have decided to consider this point first before dealing with the substantive application so that if I came to a decision that the proceedings were barred, it would not be necessary to hear argument in relation to the application itself.
In relation to the first ground of application, Mr Zipser argues that neither issue estoppel nor Anshun estoppel would apply because when her Honour made her decision the law had yet to be clarified by decisions such as Rajaratnam v Minister for Immigration (2000) 62 ALD 73; or Perampalam v Minister for Immigration (1999) 55 ALD 431; Minister for Immigration v Sarrazola (1999) 95 FCR 517.
Mr Zipser would, if he was permitted, seek to argue that the dual purpose reasoning which comes out of the cases cited above was not considered by her Honour who found in relation to this matter:
“…the applicant, who acted for himself, made a number of submissions.
· That the Tribunal had failed to set out its findings on the issue of whether the applicant was a target for extortion because he was a Buddhist who could pay the extortion while Muslims of similar standing would not be targeted. In fact, as the respondent submitted, the Tribunal dealt comprehensively with the incident where the applicant was kidnapped and held for ransom in 1987 at page 12 of its decision. In my view what the applicant complains of is the conclusion drawn by the Tribunal and not the procedures by which it came to that conclusion. The ground is therefore made out and there is no error of law.”
The Minister argues that this finding by her Honour was a finding in relation to the grounds of application contained at [CB170] where the applicant refers to the decision involving an incorrect interpretation of the applicable law. This is a reference to s.476(1)(e) of the Migration Act as it then stood, but her Honour, prior to commencing the extract which I have just set out, stated:
“In relation to the first ground of the application that the procedures that were required by the Act to be observed by the RRT in connection with the making of the decision were not observed, the applicant...”
I do not know, because I do not have a copy of the transcript, what actually occurred before her Honour so I cannot say whether her Honour decided this matter on the basis of the consideration of s.476(1)(a) because she was urged to do that by the applicant or because she did not notice the reference to s.476(1)(e) in the application. But there is a difference between the two and although her Honour did make a finding based upon the factual decision of the Tribunal I am not satisfied that the finding which she made could be considered to fall within the definition of issue estoppel set out by Lindgren J in Wong v Minister for Immigration (2004) 204 ALR 722 at [44] where his Honour says:
“For issue estoppel to apply, an issue of fact or law which is raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding…”
In relation to the second ground of application, O'Connor J said:
“Although the applicant divided his amended claim into a number of parts, his claim really amounts to what the applicant described as an objection to the "unsatisfactory way" in which the Tribunal handled his case. The RRT is only obliged to, and as the respondent submitted, did give proper weight to any credible account of the objective circumstances described by the applicant. It made a decision by reference to broad principles which are generally accepted within the international community as determined under Australian law. The decision referred to the relevant cases in respect of systematic persecution. The Tribunal was required to do and did consider whether the applicant could be the subject of persecution by reason of his membership of the Buddhist religion from the perspective of whether Buddhists as a religious group were the subject of systematic harassment, such that it constituted persecution of the applicant for a convention based reason and was entitled to come to the conclusion that this applicant would not suffer some serious punishment or penalty or some significant detriment or disadvantage.”
Mr Zipser argues that her Honour fell into jurisdictional error in regard to this statement because she did not speak with the benefit of the clarification of the law on systematic persecution which he finds in the decision of McHugh J in Minister for Immigration v Haji Ibrahim [2000] 204 CLR 1. Mr Zipser argues that the findings by her Honour could not constitute issue estoppel because the interpretation of systematic persecution that became clear in Ibrahim was not put to her Honour and her Honour was relying, presumably, on previous authority such as that in Chan Yee Kin v MIEA [1989] 169 CLR 379 or Murugasu v Minister for Immigration (1987) 217 ALR 17.
I am not as sanguine about dismissing the possibility of issue estoppel in relation to this part of her Honour's reasoning as I was about her reasoning in relation to the extortion matter but I feel that caution should prevail and that I should not make such a finding. This leads me to a consideration of the doctrine of Anshun estoppel which has been discussed at considerable length in cases such as Wong v Minister for Immigration supra, Applicant S1198/2003 v Minister for Immigration [2005] FCA 1349 per Allsop J, Applicant A87 of 2003 v Minister for Immigration [2004] FCA 919 per Lander J and BC v Minister for Immigration [2002] FCAFC 221 per Carr, Tamberlin and Conti JJ.
As I understand his submissions Mr Zipser concedes that the Anshun principle would apply but he argues that there are special circumstances in this case which would permit me to exercise my discretion to allow the matter to be heard.
He says in relation to both the matters considered by her Honour that are the subject of the further amended application that the grounds sought to be raised now were unavailable or not apparent on the law as it was at the time. He says that if a lawyer had appeared on behalf of the applicant he would have adopted what the Tribunal had to say about Murugasu and not challenged that finding before the Federal Court on the basis of later decisions such as Ibrahim. He says there was ambiguity and that was only finally resolved by Ibrahim in respect of the proper meaning of systematic persecution. Mr Zipser argues the same point in relation to the dual motivation this time referring to cases such as Rajaratnam.
The other matters raised by Mr Zipser are that the applicant had no legal representation and that there will be no disadvantage to the Minister from the re-agitation of these matters. This is a point that has been considered in several cases including Wong at [152(2)] where Lindgren J said:
“I accept that the Minister is a respondent by reason of his role under the Act and is not subject to the same pressures of costs and time which often weigh on other litigants. This consideration is entitled to some weight but Ministers like other litigants are ordinarily entitled to the benefit of Anshun estoppel. Moreover, Anshun estoppel serves the public interest by ensuring that taxpayer-funded government departments and courts are not troubled with the same legal dispute more than once.”
The applicant has himself filed an affidavit which makes reference to the history of the litigation and notes that at all times he was acting on advice either from a migration agent or a lawyer.
As discussed in arguendo what the applicant is really seeking from me in this case is for me to say that O'Connor J was wrong in the manner in which she came to her decision and that I should be saying that she is wrong by virtue of some later clarification of the law. This places the court in a somewhat embarrassing situation. Normally the only persons to tell her Honour that she was wrong would be a Full Bench of the Federal Court. It would almost be lèse majesté for a court at the lowest rung of the Federal ladder to be telling a distinguished jurist such as her Honour that she erred.
I do not think that I have to do this. I think that the state of the authorities in relation to the systematic persecution point was such that it could well have been argued appropriately before her Honour and her Honour could have come, if she had so wished, to a different decision and thus Anshun would apply. I am also satisfied of that in relation to the dual motivation point. The law at the time was clearly in a state of flux as is indicated by the later decisions one of which, Sarrazola, would appear to be upholding a similar decision of a single judge which must have been made near or around the time that this particular case was heard by O'Connor J. In other words the arguments could have been put, even if they were unsuccessful.
In these circumstances I am of the view that I am prevented from hearing this matter by virtue of the doctrine of Anshun estoppel, and that there are no special circumstances as that term was applied in BC v Minister for Immigration [2002] FCAFC 221 as per Carr, Tamberlin and Conti JJ at [30] and Tai Shing Wong v Minister for Immigration [2004] FCAFC 242 as per Emmett, Conti and Selway JJ at [52], although it may not be impossible for the applicant to obtain leave from the Full Bench of the Federal Court to appeal against her Honour's decision and to argue in that appeal that in the light of subsequent authority her Honour may have been in error.
I dismiss the application. I order that the applicant pay the first respondent's costs which I assess in the sum of $5000. I order that the Refugee Review Tribunal be made second respondent to these proceedings.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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