S1941 of 2003 v Minister for Immigration

[2006] FMCA 788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1941 OF 2003 v MINISTER FOR IMMIGRATION [2006] FMCA 788

MIGRATION – Review of RRT decision − where applicant unsuccessfully applied to Federal Court for review of RRT decision − where applicant subsequently joined the Muin and Lie class actions where application for order nisi was dismissed − where applicant commenced fresh proceedings in this court without appealing to the Full Court − whether application dismissed on grounds of res judicata, issue estoppel or Anshun estoppel – whether lack of procedural fairness.

Migration Act 1958, ss.476, 424A, 425
Federal Magistrates Court Rules 2001

Applicant v The Minister for Immigration and Multicultural Affairs [2000] FCA 1667
Craig v South Australia (1995) 131 ALR 595
Minister for Immigration v Yusuf (2001) 180 ALR 1

Applicant: APPLICANT S1941 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 745 of 2004

Judgment of: Raphael FM

Hearing date: 26 May 2006

Date of Last Submission: 26 May 2006

Delivered at: Sydney

Delivered on: 26 May 2006

REPRESENTATION

Applicant in Person
Solicitors for the Respondent:	Mr Chami, Clayton Utz

CORRIGENDA

In paragraph 12 of the ex tempore judgment as issued, the final sentence reads:

“Unfortunately for the applicant, s.424A had not been passed into law at the time the Tribunal decision was made. It was therefore not relevant to this case.”

But in the transcript of proceedings before the Court I note that I said:

“In the judgement which I have just delivered I made reference to section 424A and that it was not in place at the time the applicant’s case was considered by the Tribunal. In place of that finding, I wish to make the finding that the applicant’s claim that the Tribunal did not comply with s.424A of the Migration Act is a claim that the decision involved an error of law which is covered by s.476(1)(e) of the Migration Act as it then stood. To that extent it is estopped.”

In those circumstances this corrigenda should issue so that paragraph 12 of the judgment should now read as follows.

“The applicant provided the court with some written submissions filed on 25 May 2006. He argues that the Tribunal’s failure to give him particulars of the information and bring those to his attention constituted a failure to comply with s.424A of the Act which constituted jurisdictional error. He was referring to such matters as inconsistencies between his application documents and what he told the Tribunal at hearing. The applicant’s claim that the Tribunal did not comply with s.424A of the Migration Act is a claim that the decision involved an error of law which is covered by s.476(1)(e) of the Migration Act as it then stood. To that extent it is estopped.”

ORDERS

1. Application dismissed.

2. 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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 745 of 2004

APPLICANT S1941 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 26 September 1996 on a false passport.  He first applied for a protection visa on 18 October 1996.  On 10 July 1997 he withdrew that application.  On 29 August 1997 he lodged a new application.  That new application was refused by a delegate on 2 February 1998.  On 26 February 1998 the applicant applied for a review of that decision.  The applicant attended an interview with the Refugee Review Tribunal on 31 January 2000.  On 27 June 2000 the Tribunal determined to affirm the decision of the delegate and handed that decision down on 12 July 2000.

2. On 9 August 2000 the applicant applied to the Federal Court for judicial review of the Tribunal's decision.  On 14 November 2000 Emmett J dismissed the application (Applicant v The Minister for Immigration and Multicultural Affairs [2000] FCA 1667). The applicant then joined the Muin and Lie class action.  On 20 February 2004 Emmett J refused to grant the order nisi sought by the applicant.  On 16 March 2004 the applicant commenced the current proceedings.

3. The proceedings seek review of the same decision of the Refugee Review Tribunal which had been considered by his Honour Emmett J.  No appeal had been made against his Honour's decision.  As I said in a case which I heard only yesterday, a decision by this court finding that a decision of the Federal Court which had not been appealed was wrong smacked of lèse majesté and was not an appropriate application to make.  If this applicant did not like the decision of his Honour he could have appealed it, and he should have appealed it.  He can still seek leave to appeal out of time.

4. The Minister submits that the application should be dismissed on the grounds of issue estoppel, res judicata or Anshun estoppel.  The application amended by the applicant and lodged on 25 October 2004 gives particulars of the applicant's grounds for seeking review.  In connection with my decision on the matter, I will deal with each in turn.

5. “1.        The procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision were not observed.”

   This phraseology is a direct take from ss. 476(1)(a) of the Migration Act 1958 (the “Act”) as it existed at the time of the first hearing.  It is clear that any matter raised under this heading, and I note that no particulars are provided, could have been raised before his Honour Emmett J.  It is therefore the subject of an Anshun estoppel.

6. “2.     The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.”

   To the extent that this claim is not just a request for merits review, it is an allegation that the decision involved an error of law which was a permissible ground of review at the time of the application before Emmett J, this claim is also estopped.

7. “3.     The Tribunal failed to take a relevant consideration into account in exercising its power to determine me as a refugee.”

   This would also be an error of law, being a failure to abide by the decisions of the High Court in Craig v South Australia (1995) 131 ALR 595 and Minister for Immigration v Yusuf (2001) 180 ALR 1, both of which cases were decided prior to the hearing before Emmett J. This ground is barred.

8. “4.     The decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the case was found by the Refugee Review Tribunal.”

   This is an almost direct take from ss.476(1)(e). It is barred.

9. “5.     The Tribunal was unjust, as was made without the taking into account the full gravity of my circumstances and consequences of the claims.”

   This is a request for merits review and is outside the jurisdiction of this court.

10. “6.     The decision by the Tribunal is not justifiable by the evidence used in the decision.  The used documents have indicated clear violation of human rights which is tantamount to persecution.  The Tribunal ignored its own information in deciding the case.”

    This would appear to me to fall within the provisions of ss.476(1)(g) and is estopped.

11. “7.     The decision was an improper exercise of the power confirmed by this Act or the Regulations and I was deprived to attain natural justice.”

    The first part of this ground is a direct take from ss.476(1)(d) and is estopped. The second part of the paragraph is a new ground, although the particulars provided are not particulars of a failure to provide natural justice. When the case came before his Honour, natural justice was not a ground of review. I would be prepared to consider any submissions made by the applicant in regard to natural justice. I believe I heard a faint argument that the proceedings which concluded before Emmett J constituted the whole of the applicant's case and thus any new proceedings would be the subject of estoppel through res judicata: as per Merkel J at [65] in Somanader v Minister for Immigration (2000) 178 ALR 677 and Lindgren J in Wong v Minister for Immigration [2004] FCA 51 at [55]. However the particulars provided by the applicant, being:

    “(a)the Tribunal failed to consider in assessing the chance of the applicant being arrested or persecuted on his return to Bangladesh based on the fact that he was a member of a particular social group and political opinion in Bangladesh –“

    does not seem to me to be a particular of a failure to provide natural justice.  The second particular, being:

    “(b)the Tribunal's satisfaction that the applicant is not a refugee is not based upon reasoning which provided a relational or logical foundation for this belief –“

    does likewise not illuminate any ground based upon lack of procedural fairness.  It seems more to be a case of lack of evidence.

12. The applicant provided the court with some written submissions filed on 25 May 2006. He argues that the Tribunal's failure to give him particulars of the information and bring those to his attention constituted a failure to comply with s.424A of the Act which constituted jurisdictional error. He was referring to such matters as inconsistencies between his application documents and what he told the Tribunal at hearing. The applicant’s claim that the Tribunal did not comply with s.424A of the Migration Act is a claim that the decision involved an error of law which is covered by s.476(1)(e) of the Migration Act as it then stood. To that extent it is estopped.

13. In his further particulars of failure to afford procedural fairness, the applicant argues that the Tribunal did not give him an opportunity to respond to any adverse material.  That is completely incorrect, as a cursory look at the reasons for decision will immediately reveal.  The applicant argues that the Tribunal erred in not finding that there was a real chance of him being selected or targeted for persecution.  That is not a matter of procedural fairness; it is a request for merits review which is unavailable.

14. The applicant argues that the Tribunal constructively failed to exercise its jurisdiction, which is a claim under ss.476(1)(a) of the Act as it was at the time the decision was made by Emmett J, and is therefore estopped. The applicant argues that he was not permitted to give evidence in accordance with s.425 of the Act. There is no foundation in this argument whatsoever, given the lengthy recitation of evidence by the Tribunal in its decision and the absence of a transcript.

15. The applicant claims that the Tribunal failed to take into consideration the threat to his life and liberty.  This is a claim for merits review in respect of which this court has no jurisdiction.  Finally, the applicant says that the Tribunal has not considered the well-founded fear of persecution that he will experience.  This is yet another claim for merits review.

16. It seems to me that with the possible exception of the claim for review on the ground of lack of procedural fairness, all the applicant's claims are barred because of the doctrine of issue estoppel.  To the extent that they were not articulated in the way the applicant has now articulated them, they would be barred by the doctrine of Anshun estoppel.  In regard to the claim raised by the applicant of failure to provide procedural fairness, I cannot find any.

17. I dismiss the application.

18. I order that the applicant pay the respondent's costs which I assess in the sum of $5000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: