S1141 of 2003 v Minister for Immigration and Multicultural Affairs
[2006] FCA 1608
•23 NOVEMBER 2006
FEDERAL COURT OF AUSTRALIA
S1141 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1608
MIGRATION – whether Anshun estoppel applicable – whether Tribunal’s understanding of ‘systematic conduct’ and/or the possibility of a ‘dual motivation’ finding in respect of persecution erroneous
Migration Act 1958 (Cth) ss 417(1),s 476(1) and 481(1)
Judiciary Act 1903 (Cth) s 44
Order 52 rule 22(3) of the Federal Court RulesApplicant S1174 of 2002 v Refugee Review Tribunal (2004) 80 ALD 325
Periannan Murugasu v Minister for Immigration and Ethnic Affairs (1987) 217 ALR 17
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 1
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222
Henderson v Henderson (1843) 3 Hare 115; 67 ER 319
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
Perampalam v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 609 and (1999) 84 FCR 274
Rajaratnam v Minister for Immigration and Multicultural Affairs (1998) 60 ALD 217 and (2000) 62 ALD 73S1141 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1061 OF 2006GRAHAM J
23 NOVEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1061 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
S1141 OF 2003
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
23 NOVEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1061 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
S1141 OF 2003
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
23 NOVEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant was born in a village in the Chittagong district of Bangladesh on 31 December 1953. He arrived in Australia on 7 September 1995 having travelled here on a Bangladeshi passport. He is a Buddhist who was actively involved in a number of Buddhist associations prior to his departure from Bangladesh in September 1995. On 27 October 1995 he applied for a Protection Visa (866).
The appellant sought protection in Australia so that he did not have to go back to Bangladesh. In response to the question ‘What do you fear may happen to you if you go back to that country?’ , the appellant’s response was:
‘SEE STATEMENT.
AS A BUDDHIST I FEAR PERSECUTION IN BANGLADESH.’Buddhists are in a minority in Bangladesh and comprise approximately one per cent of the population. The majority of the country’s citizens are Muslim. Whilst the government is secular, Islam has been declared to be the State religion, the relevant declaration having been made in 1988.
The appellant claims to fear persecution by Muslims, who he says have targeted him because he is a Buddhist who is well-known in the community. The appellant does not claim that he fears persecution by reason of his political opinion.
Notwithstanding his status as a member of a religious minority, the appellant was able to gain a tertiary education, which included post-graduate qualifications, and to obtain employment and change that employment on several occasions. He described himself as having done well in his employment and as having money.
The appellant has been able to practise his religion as a regular weekly or bi-weekly attender at the Buddhist temple.
On 23 November 1994 he travelled to Thailand to attend a Buddhist conference. Thereafter, he returned to Bangladesh on 30 November 1994.
On 28 January 1997 a delegate of the Minister determined that the appellant was not a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’).
On 14 February 1997 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s Delegate’s decision. A considerable amount of material was submitted by the appellant to the Tribunal, which had regard to that material and also to extensive country information.
After a hearing on 17 December 1997 at which the appellant and two of his friends gave evidence, the Tribunal handed down its decision on the application for review on 30 December 1997. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Refugees Convention. Accordingly, the Tribunal affirmed the decision of the Minister’s Delegate not to grant the appellant a protection visa.
At that time Part 8 of the Migration Act 1958 (Cth) (‘the Act’) made provision for the review of decisions of the Tribunal by the Federal Court of Australia. The powers of the Federal Court in respect of applications for review of judicially-reviewable decisions were set out in s 481(1) of the Act.
Under s 476(1) of the Act applications could be made for review on a variety of grounds which included:
‘(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
…
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
…’
On 2 February 1998 the appellant filed an Application for an Order of Review under s 476 of the Act (‘the first application’). That application was amended on or about 6 April 1998. The grounds set out in the amended application included:
‘1.Procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed.
PARTICULARS
The Tribunal failed to set out its findings on the following material questions of fact:
(a)The Applicant was a target for extortion as he was a Buddhist who could pay the extortion while Muslims of similar standing would not be targeted.
(b)Alternatively, the Applicant was a target for extortion as he was a Buddhist who was not adequately protected by the authorities as he was a minority Buddhist.
(c)The basis upon which the Respondent concluded that the treatment of Buddhists is “neither systematic nor serious enough to amount to persecution within the meaning of the Convention” if there was evidence of systematic discrimination and regular outbursts of violence against Buddhist unprotected by the authorities.
2.The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.
PARTICULARS
(a)The Tribunal erred in its application of the law to the facts in assuming that the Applicant did not face a real chance of persecution for a Convention reason as he was actively documenting incidents of communal violence against Buddhists but had a low profile.
(b)The Tribunal erred in its application of the law to the facts in its finding or assumption that documents submitted by the Applicant were fraudulent documents and unacceptable as evidence.
…’
The amended application came before O’Connor J on 1 June 1998 and was decided adversely to the appellant on 10 June 1998.
After dealing with the four grounds set out in the amended application seriatim, O’Connor J stated generally, in her reasons for judgment in NG 62 of 1998 (unreported, 10 June 1998) at 8:
‘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 Buddists 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.’
O’Connor J concluded that none of the grounds as particularised had been made out. She indicated that a ‘reading of the decision as a whole reveals no error of law which would justify the orders sought’. Accordingly the application was dismissed with costs.
On or about 3 July 1998 the appellant sought to be added as a plaintiff in the Muin and Lie class actions in the High Court of Australia. After the delivery of the High Court’s judgment (see (2002) 190 ALR 601), Gaudron J gave leave to any person named as a represented party to file an application for an order nisi in relation to that party’s Tribunal decision. An application for an order nisi was filed by the appellant (‘the second application’), the relevant matter being remitted, with many others, to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). The orders nisi, including that sought by the appellant, were refused by Emmett J on 20 February 2004 (see Applicant S1174 of 2002 v Refugee Review Tribunal (2004) 80 ALD 325).
On 7 July 1998, that is to say when the Muin and Lie class actions were still before the High Court, the appellant invited the Minister to exercise his power under s 417(1) of the Act to substitute for the decision of the Tribunal another decision, being one more favourable to the appellant. On 13 April 1999 the Minister decided not to exercise his power under s 417(1) of the Act in the manner which the appellant requested.
Having failed to secure the grant of an order nisi in the remitted proceedings, the appellant instituted proceedings in the Federal Magistrates Court of Australia on 15 March 2004 seeking constitutional writ relief in respect of the decision of the Tribunal. The grounds of the application (‘the third application’) were as follows:
‘1. I am not satisfied with RRT decision.
2. RRT did not follow Migration Act 1958 properly.
3. RRT took decision in BAD faith.
4. RRT denied evidentiary proof of my claim.
5. The tribunal deprived me of natural justice.
6.I was the party of Lie class action. My Judicial Review application is late. I refer to recent High Court case plaintiff S157/2002 v Commonwealth of Australia.
7.I will provide more details later.’
On 29 September 2004 the appellant filed an ‘Amended Application’. Then on 4 March 2005 the appellant filed another ‘Amended Application’.
The third application came before Federal Magistrate Raphael on 25 May 2006. At that time a Further Amended Application was filed in the Federal Magistrates Court in which the grounds relied upon were expressed as follows:
‘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 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 fond (sic) 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.’
When the third application came before the Federal Magistrates Court the respondent Minister argued that the proceedings as articulated in the Further Amended Application were barred by virtue of the doctrine of issue estoppel or alternatively the doctrine of Anshun estoppel. Raphael FM proceeded to consider the estoppel point first, before dealing with the substantive application, so that if he came to a decision that the proceedings were barred it would be unnecessary for him to hear argument in relation to the application itself. His Honour proceeded to deal with the two aspects of the matter which were argued on the hearing of the present appeal, which may loosely be referred to as the ‘systematic conduct’ and ‘dual motivation’ points, by concluding that he was prevented from hearing them by virtue of the doctrine of Anshun estoppel arising from the decision of O’Connor J on the first application. Furthermore, he found that the matter did not fall within the ‘special circumstances’ exception to the Anshun estoppel rule.
Raphael FM added, in his reasons for judgment [2006] FMCA 781, at [17]:
‘… 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’
Raphael FM proceeded to dismiss the third application and order the applicant to pay the Respondent’s costs assessed in the sum of $5,000.
Undaunted by the appellant’s lack of success in respect of the first application, the second application and the third application, the appellant proceeded to file an application in the Federal Court of Australia on 2 June 2006 seeking an extension of time within which to appeal from the decision of O’Connor J of 10 June 1998. On the same day the appellant filed a Notice of Appeal in this Court appealing from the judgment of Raphael FM of 25 May 2006 (said to have been given on 26 May 2006). The application for an extension of time came before the Court constituted by Conti J on 29 June 2006. On 14 August 2006 his Honour ordered that the application for an extension of time be dismissed and that the appellant pay the Minister’s costs of the application.
This leaves for consideration the notice of appeal from the judgment of Raphael FM filed on 2 June 2006. In the notice of appeal the grounds relied upon were recorded as follows:
‘1.The appellant contended before Raphael FM that the Refugee Review Tribunal (“the Tribunal”), in its decision dated 30 December 1997, erred in relying on the proposition that “persecution involves systematic conduct” in the course of dismissing the appellant’s application for a protection visa. In 1998 the appellant had applied to the Federal Court for judicial review of the Tribunal’s decision. Following a hearing on 1 June 1998, O’Connor J dismissed the application. Raphael FM held that the appellant should have argued this point before O’Connor J and, in these circumstances, the principle of Anshun estoppel applied and barred the appellant from arguing this point in the Federal Magistrates Court proceedings. Raphael FM rejected the appellant’s argument that the state of the law was such in June 1998 that it was unlikely that an unrepresented applicant could argue this point in the Federal Court. Raphael FM erred in applying the doctrine of Anshun estoppel in the present case.
2.The appellant contended before Raphael FM that the Tribunal erred in failing to consider that extortion can have dual motivations. Raphael FM held that the appellant should have argued this point before O’Connor J, and, in these circumstances, the principle of Anshun estoppel applied and barred the appellant from arguing this point in the Federal Magistrates Court proceedings. Raphael FM rejected the appellant’s argument that the state of the law was such in June 1998 that it was unlikely that an unrepresented applicant could argue this point in the Federal Court. Raphael FM erred in applying the doctrine of Anshun estoppel in the present case.’
The orders now sought by the appellant are as follows:
‘1. The appeal be allowed.
2. The decision of the Tribunal dated 30 December 1997 be quashed.
3.The matter be remitted to the Tribunal to be determined according to law.
4.Costs.’
In the event that the appeal were to be allowed, the appellant would wish the Court to deal with the third application on the merits rather than remit the matter to the Federal Magistrates Court of Australia for hearing according to law. I do not understand the respondent Minister to have opposed this course of action, if otherwise appropriate, given that consideration of the matter as a whole will likely lead to a minimisation of the overall costs that would otherwise by incurred.
The appellant has been represented by Mr B M Zipser of counsel and the respondent Minister by Ms D J Watson of the Australian Government Solicitor. They have brought to bear their customary professional discipline and precision in presenting both their written and oral arguments.
In the Tribunal’s reasons for decision the Tribunal Member said ‘persecution involves systematic conduct aimed at an individual or at a group of people’.
It is apparent that in expressing himself in this way the Tribunal Member had regard to what was said by Wilcox J in Periannan Murugasu v Minister for Immigration and Ethnic Affairs (‘Murugasu’) (1987) 217 ALR 17. The relevant part of Wilcox J’s ex tempore judgment at p23, was set out by McHugh J in his reasons for judgment in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (‘Ibrahim’) (2000) 204 CLR 1 at [92] – [93] as follows:
‘[T]he fear must be one of being “persecuted”, for a particular reason. The word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil or communal disturbances.
…
[I]t is not essential to the notion of persecution that the persecution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted.’ (emphasis added)The first issue which the appellant wishes to ventilate on a hearing of the third application is whether the Tribunal misunderstood Wilcox J’s expression ‘systematic conduct’ as meaning a systematic course of conduct as opposed to non-random conduct.
In Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (‘Chan’) (1989) 169 CLR 379 at 429 McHugh J said:
‘The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be “persecuted” because he or she is a member of a group which is the subject of systematic harassment: …’ (emphasis added)
As authority for the above proposition McHugh J relied, inter alia, upon the judgment of Wilcox J in Murugasu.
His Honour then continued at 430:
‘Nor is it a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention. …’ (emphasis added)
In Ibrahim McHugh J explained what he meant by ‘systematic conduct’ in Chan and what he understood Wilcox J to have meant when using that expression in Murugasu. At [95] his Honour said:
‘The use of the term “systematic conduct” has proved unfortunate. Tribunals have read it as meaning that there can be no persecution for the purpose of the Convention unless there was a systematic course of conduct by the oppressor. That was not what I meant by using that expression in Chan. I used it as a synonym for non-random, and I think that in Murugasu Wilcox J intended to use it in the same way.’ (footnotes omitted)
At [99] McHugh J continued:
‘It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of co-ordinated acts directed at him or her which can be said to be not isolated but systematic”. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.’ (footnotes omitted)
The appellant’s case is that, when the Tribunal was addressing whether the appellant had a well-founded fear of being persecuted for reason of his religion, it considered that there had to be more than non-random conduct engendering fear for a finding of persecution to be made. In my opinion the Tribunal did not require that there be more than non-random conduct for a finding of persecution to be made. To enable this conclusion to be drawn it is necessary to refer to various passages from the reasons for decision of the Tribunal as follows:
‘… the applicant must fear persecution. Not every threat of harm or interference with a person’s rights for a Convention reason constitutes “being persecuted”. … Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures “in disregard” of human dignity. …
…
… the evidence [country information] does not suggest that there is systematic persecution of Buddhists in Bangladesh. Rather, it suggests that the discrimination and harassment which occur arise out of communal and religious tensions in the country.
…
I accept that [S1141 of 2003] was present when a group of people attacked a Buddhist burial ground. I also accept that [S1141 of 2003] was caught up in communal violence following the Babri Mosque incident, and that a member of his community was burned to death when his shop was attacked. However, because persecution involves systematic conduct aimed at an individual or at a group of people, “it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances”. It is only in situations where “a community is being systematically harassed to such a degree that the word persecution is apt”, that an individual member of that community may have a well-founded fear of persecution: Periannan Murugasu v Minister for Immigration and Ethnic Affairs … Whilst I accept that Buddhists in Bangladesh are discriminated against and from time to time targeted in outbursts of communal violence, I accept the independent evidence set out above which indicates that the treatment of Buddhists in Bangladesh is neither systematic nor serious enough to amount to persecution within the meaning of the Convention. I therefore do not accept that the incidents of communal violence described by [S1141 of 2003] amount to persecution within the meaning of the Convention.
…
I accept that as a Buddhist, [S1141 of 2003] is part of a minority group in Bangladesh which has experienced discrimination and has been disadvantaged in areas such as access to government jobs and political office. I also accept the independent evidence that Islamic extremists have violently attacked women, religious minorities and development workers and that the Government has sometimes failed to denounce, investigate and prosecute perpetrators of these attackers. However, notwithstanding Dharma Bansha Sraman’s claim that 70-80% of Muslims attack members of minority religions, the independent evidence suggests that support for Islamic fundamentalism in Bangladesh has decreased significantly in recent years. …’ (emphasis added and footnotes omitted)It may be observed that the Tribunal Member did not use Wilcox J’s expression, which was also used by McHugh J in Chan, namely ‘a course of’ systematic conduct. Rather, the Tribunal Member simply spoke of persecution involving systematic conduct. In this context, I consider that the above passages from the Tribunal Member’s reasons for decision, and in particular the highlighted passages, indicate that the Tribunal did not approach the matter on the basis that the appellant could not succeed unless he was able to satisfy the Tribunal that there had been selective harassment as a result of a systematic course of conduct. The Tribunal did not apply the wrong test.
The other issue tendered for consideration by the appellant is the ‘dual motivation’ issue. The appellant submits that a determination may be made that a person has a well-founded fear of being persecuted for reason of his religion where at the same time there may be another non-Convention reason for his persecution such as a perception that the person has money.
The appellant submits that if the Tribunal considered that a person could not have a well-founded fear of persecution where there was more than one reason for the persecution, the second reason falling outside the Refugees Convention or that it was not open to it to find multiple reasons for a well-founded fear of persecution, then it would have committed jurisdictional error.
I am not satisfied that the Tribunal considered that such a dual motivation could or would provide a basis for concluding that a person did not have a well-founded fear of persecution within the meaning of the Refugees Convention; nor did the Tribunal close its mind to the possibility of there being multiple reasons for a well-founded fear of persecution. On the facts of this case the Tribunal simply rejected that there was any reason for the appellant’s fear of persecution apart from the perception that he had money.
Again it is necessary to have regard to certain passages from the reasons for decision of the Tribunal which included:
‘At the hearing [S1141 of 2003] confirmed that he has not been actively involved in any political organisation since 1985. He was asked to provide details of incidents which he claimed had occurred because of his religion. [S1141 of 2003] stated that in 1987 he was kidnapped and tortured by a group of Muslims, who he referred to as criminals. He was held for three days and then released when a ransom was paid. [S1141 of 2003] stated that he did not think he would have been kidnapped if he was not perceived as having money.
[S1141 of 2003] said that in 1988 when he was going to do community work, he was stopped by a group of men who told him that he was not going to go and do the work unless he gave them money. [S1141 of 2003] said that the men were not the same men who had kidnapped him, but from the same group. These were people who generally caused trouble in the community. On this occasion [S1141 of 2003] did not give them any money, but went home and then went to where he was going using a different route.
On another occasion in 1988, two people came to [S1141 of 2003]’s house and told him that he had to go to see his brother. However, he did not go with them because he thought that they would hurt him.
In 1989 there was an incident in which a group of hooligans and other people went to the Buddhist burial ground and tried to erect a wall. They wanted to stop the place being used as a burial ground. [S1141 of 2003] and some other people went to try to stop them. The group tried to take [S1141 of 2003] away, but the people he was with them (sic) protected him. [S1141 of 2003] said that the group destroyed the burial ground. By this he meant that they broke the surrounding walls. The graves were not desecrated.
[S1141 of 2003] stated in October 1994 a Buddhist in his local community was burned to death when the shop, above which he lived, was torched. He stated after this occurred he was afraid for his life.
…
[S1141 of 2003] stated that if he goes back to Bangladesh he will be killed because so many attempts have been made on his life. He said that other people have been killed. In saying this, [S1141 of 2003] was referring to the man who died when his shop burned down. He stated that he would be killed because he used to work to help poor people.
…
[S1141 of 2003] stated that since he has left Bangladesh his wife has been forced to move because of harassment. The group who previously harassed him has asked his wife where he is and demanded she give them money. …
…
Mr Dilip Barua stated that he believes that [S1141 of 2003] is at risk of being kidnapped and possibly killed if he returned to Bangladesh. This would be by people wanting money. …
…
… the evidence [country information] does not suggest that there is systematic persecution of Buddhists in Bangladesh. …A newspaper report in 1994 quotes Ven Bodiphal Mahathero as stating that Buddhists in Bangladesh have good relations with people of other religions, and that they are free to do what they want in Bangladesh.
…
I accept that [S1141 of 2003] was kidnapped and held for ransom in 1987. As noted above, persecution involves an element of motivation for the infliction of harm. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution and the objectives sought to be obtained by it. The reason for the persecution must be found in the singling out of one or more of the Convention grounds. I note [S1141 of 2003]’s evidence that he would not have been kidnapped if he had no money. He also stated that the group which attacked him were criminals who caused trouble for other people in the community as well. I am of the opinion that [S1141 of 2003] was kidnapped not because he is Buddhist, but because he was perceived to be an appropriate target for extortion. I also consider that the incident described by [S1141 of 2003] when he was asked for money in 1988 was an extortion attempt carried out by a group of people who targeted [S1141 of 2003] because he was perceived to have money, rather than for reasons of his religion. Further, I am of the opinion that the harassment of his wife described by [S1141 of 2003] has also been motivated by the fact that the family is perceived as having money, rather than because of their religion.
…
… I am … not satisfied that [S1141 of 2003] was subjected to treatment amounting to persecution in the past or that he faces treatment amounting to persecution for reasons of his religion. Further, even though [S1141 of 2003]’s fellow community member was burned to death in an incident of community violence in October 1994, [S1141 of 2003] returned to Bangladesh after going to Thailand in November 1994. I consider it implausible that he would have returned to Bangladesh if he had genuinely feared for his life.
…’ (emphasis added)It is evident that the Tribunal Member did not consider that the appellant’s religion was a reason for the harassment to which he was subjected or that he feared.
In the light of the foregoing findings on the ‘systematic conduct’ and ‘dual motivation’ points, it is clear that had the learned Federal Magistrate not decided the application before him on an Anshun basis (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589), he would, in all probability, have found that there was no jurisdictional error on the part of the Tribunal, as alleged. Certainly, were I to find that the appellant was not estopped from arguing the points, I would conclude that there was no relevant jurisdictional error to warrant the issue of constitutional writ relief.
Turning to the question of estoppel, the respondent argued before the Federal Magistrates Court, as indicated above, that the proceedings were barred by virtue of the doctrine of issue estoppel or alternatively the doctrine of Anshun estoppel. The learned Federal Magistrate declined to decide the estoppel question by reference to the doctrine of issue estoppel. He was content to find that he was prevented from hearing the matter by virtue of the doctrine of Anshun estoppel and that there were no special circumstances which would permit the appellant to raise the ‘systematic conduct’ and ‘dual motivation’ points before him. It was never suggested that the third application was the subject of res judicata and, on the hearing of the current appeal, no notice of contention was filed by the respondent in accordance with Order 52 rule 22(3) of the Federal Court Rules contending that the learned Federal Magistrate’s judgment should be affirmed by reason of the fact that the third application was the subject of issue estoppel. In the circumstances, the only question is whether or not the learned Federal Magistrate correctly decided the matter on the basis of Anshun estoppel.
The relevant legal principles were set out by Emmett, Conti and Selway JJ in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (‘Wong’) (2004) 146 FCR 10. In that case the Full Court had before it three separate appeals and one application for extension of time within which to file an application for leave to appeal and also for leave to appeal. The three appeals were from the decision of Wilcox J in [2002] FCA 1436, the decision of Lindgren J in matter N297 of 2003 and the decision of Lindgren J in matter N298 of 2003, both of which were the subject of his Honour’s reasons for judgment in [2004] FCA 51, reported as Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722. The decision the subject of the application for extension time within which to file an application for leave to appeal and for leave to appeal was that of Lindgren J in [2004] FCA 422, reported as Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 146 FCR 1.
The appeal against the decision of Wilcox J was dismissed. The appeal against the decision of Lindgren J in matter N297 of 2003 was dismissed. The appeal against the decision of Lindgren J in relation to matter N298 of 2003 was allowed and the application for leave to appeal the decision of Lindgren J [2004] FCA 422 was dismissed.
The relevant legal principles were stated by Emmett, Conti and Selway JJ in Wong (see 146 FCR 10 at [36]-[39]) as follows:
‘The relevant legal principles
36.The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
37.A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [No 2] (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun at 602
38.Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’ : see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
39.Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-356 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.’
In Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER at p 319) Sir James Wigram VC expressed the principle in these terms:
‘where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.’
The appellant concedes that the ‘systematic conduct’ and ‘dual motivation’ points properly belonged to the subject of the first application and were points which the appellant, exercising reasonable diligence, might have brought forward at the time of the hearing before O’Connor J. However, the appellant contends that special circumstances existed to allow the points to be raised in the third application even though the appellant had unreasonably omitted the points from the first application. The appellant submits that the Federal Magistrate erred in finding that there were no special circumstances.
In BC v Minister for Immigration & Multicultural Affairs (‘BC’) [2002] FCAFC 221 at [30] Carr, Tamberlin and Conti JJ said:
‘… once a court has found that that the Anshun principle applies, then the only “discretion” which the court may exercise not to apply the Anshun principle is if it finds that “special circumstances” exist. That is essentially a finding of fact to which the rule in House v R has no application.’
In Wong the Court found that a failure by the Minister to comply with an obligation under the Act, which was based upon a mistaken view of the Act and was not contumelious, did not constitute ‘special circumstances’ which would take a case outside the principle of Anshun estoppel even though the legislative policy reflected in the relevant provision of the Act was frustrated as a consequence. At [52]-[53], their Honours said:
‘52.… If it were the case that a failure by a Minister to comply with a positive duty constitutes ‘special circumstances’ then it would seem every such failure would be sufficient to invoke the special circumstances exception, requiring the full ventilation of argument on the issue that would otherwise be estopped. Those circumstances alone, do not constitute the requisite special circumstances, such that it would not be an abuse of process for Mr Wong to ventilate issues that it was unreasonable for him not to have raised in either the First Proceeding or the Second Proceeding.
53. …
… There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be “vexed” in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the executive government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action (at [39]).’
What may come within the ‘special circumstances’ exception to a finding of Anshun estoppel was dealt with by the Full Court in Wong. Those circumstances need to be ‘exceptional’: (see also BC at [31] – [33] and [38] and Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (‘Thayananthan’) (2003) 132 FCR 222 at [52] - [53]).
In BC seven ‘special circumstances’ were relied upon. At [38] the Court said:
‘In the Court’s view, a combination of the four factors referred to above at subparagraphs (a), (b), (c) and (d) amounted to special circumstances. In the context of this case, we would not regard any one of those four factors on its own as amounting to special circumstances. In the Court’s view the first, third and fourth factors are of significantly greater weight than the second factor to which we would attach only marginal weight. In relation to the fourth factor (the state of the authorities), there may appear to be some contradiction in the proposition that for Anshun purposes it was unreasonable on the appellant’s part to fail to raise jurisdictional unreasonableness in his first application, on the one hand and, on the other hand, to have regard to the degree to which the case law on jurisdictional unreasonableness had developed at the relevant time when considering whether special circumstances exist. However, the two points of view can be reconciled by treating the appellant’s use of the word “reasonable” as meaning that mitigating circumstances existed. From a technical and procedural viewpoint, failure to raise jurisdictional unreasonableness was unreasonable in the Anshun sense, but in our opinion that is excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition and there was little guidance in the particular context of the Act. …’
The four factors out of the seven upon which the appellant relied in BC and to which the Court referred at [31] were as follows:
‘(a)the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings;
(b)the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants;
(c)review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court);
(d)the state of the authorities at the relevant time which was such that it was reasonable not to rely on jurisdictional unreasonableness. …’
It is significant to note that the Court in BC did not regard any of the four factors mentioned as amounting to ‘special circumstances’ if viewed on their own.
It will be appreciated that BC was distinguished by Merkel J in Thayananthan at [53] on the basis that the availability of unreasonableness as a ground of jurisdictional error was in doubt at the time of the original proceeding in that matter.
In relation to the ‘systematic conduct’ point there was no universal misunderstanding of the meaning of that expression. All that McHugh J’s judgment in Ibrahim did was to correct a misreading of the established law which had crept into some decisions of some Tribunals.
In relation to the dual motivation point it was submitted by the appellant that the possibility of dual motivations for relevant conduct, one of which was recognised by the Refugees Convention and accordingly sufficient to bring an affected person within the meaning of ‘refugee’ was not ‘recognised’ until after the first application came before O’Connor J. In this regard reliance was placed upon Perampalam v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 609 (Hill J) and (1999) 84 FCR 274 (the Full Court) and also Rajaratnam v Minister for Immigration and Multicultural Affairs (1998) 60 ALD 217 (Branson J) and (2000) 62 ALD 73 (the Full Court).
Neither of these cases, at first instance, suggested that dual motivation could not be relied upon where one of the reasons for the relevant conduct was a Convention reason.
In my opinion the matters relied upon by the appellant in respect of the ‘systematic conduct’ point and the ‘dual motivation’ point, being paraphrases of factors (a), (b) and (d) which were relied upon in BC, do not individually or collectively amount to special circumstances which could be said to be ‘exceptional’.
In my opinion the learned Federal Magistrate did not fall into error in dealing with the third application as he did. His finding of fact on the question of special circumstances should not be set aside. In the circumstances it is unnecessary to deal with the application on the assumption that he may have fallen into error.
However, as indicated above, the Tribunal did not commit any jurisdictional error. Accordingly, there were two bases upon which it would have been appropriate for the learned Federal Magistrate to dismiss the third application, had he wished to do so.
His decision should be upheld and the appeal dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 23 November 2006
Counsel for the Appellant: B M Zipser Solicitor for the First Respondent: Ms D J Watson of the Australian Government Solicitor The Second Respondent did not appear. Date of Hearing: 14 November 2006 Date of Judgment: 23 November 2006
19
0