SZAEU v Minister for Immigration

[2005] FMCA 244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAEU v MINISTER FOR IMMIGRATION [2005] FMCA 244

MIGRATION – Refugee – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R(1)(b), 418(3), 424A, 424A(1), 424A(3), 474, 477, 477(1A), 477(2)
Judiciary Act 1903, s.39B
Federal Magistrates Court Rules 2001, Rules 13.10, 21.02(2)(a)

Plaintiff S157/2002 Commonwealth (2003) 195 ALR 24
Ngu v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157 v Minister for Immigration Multicultural and Indigenous Affairs [2003] HCA 2
Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Kioa v West (1985) 159 CLR 550
Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30
Wong v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 242
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant: SZAEU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2284 of 2004

Delivered on: 7 March 2005

Delivered at: Sydney

Hearing date: 12 October 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant to pay respondent’s cost set in the amount of $4000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2284 of 2004

SZAEU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review filed in this Court on 21 July 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 December 2002 and handed down on

   
   

   23 January 2003 affirming the decision of a delegate of the respondent Minister made on 7 January 2000 to refuse a protection visa to the applicant.

2. The applicant is a citizen of Pakistan who arrived in Australia as a visitor in November 1999 and applied to the respondent Minister’s department for a protection visa on 15 December 1999. He claimed to be in need of protection because of his membership of a political group, Anjuman Tulaba Islam (“ATI”), which had been attacked by their opponents, the Muslim Students Federation (“MSF”). He claimed to have been exposed to attack and intimidation.

3. The application before me was filed on 21 July 2004. The applicant filed an amended application on 14 September 2004. He claims two grounds:

   1)A failure to provide procedural fairness as required under ss.424A(1) and 418(3) of the Migration Act.

   2)A breach of the rules of natural justice

   He asserts the following particulars:

   1)The Tribunal did not provide him with information from the Australian Embassy reports which formed part of the decision.

   2)The Tribunal did not consider whether the Pakistani Government would provide adequate protection

   3)The Secretary of the Department of Immigration Multicultural and Indigenous Affairs did not comply with s. 418(3) of the Act because he failed to give the Tribunal “Part B” documents in his possession or control.

4. I also have before me:

   4.1On 6 October 2004 the respondent filed with the Court a Notice of Motion seeking an order that the application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that this proceeding was an abuse of process based on the doctrine of res judicata or Anshun estoppel.

   4.2An affidavit sworn by Karen Amanda Gettens, an employee of the respondent’s solicitors filed on 6 October 2004.

   4.3Written submissions filed with the Court on 6 October 2004, in which the respondent provides argument in support of the Notice of Motion and regarding the merits of the amended application for an order for review.  The respondent concludes by saying that as the matter has proceeded to a final hearing, the respondent asks that the Court dismiss the substantive application on its merits, rather than pursuant to Order 13.10.

5. From the affidavit of Karen Amanda Gettens and annexures to the affidavit, which was not disputed in any way by the applicant, it appears that the applicant in these proceedings had previously made an application to this Court on 18 February 2003 for review of the same Tribunal decision.  That application was dismissed on 24 September 2003 by Federal Magistrate Raphael. The applicant filed a notice of appeal in the Federal Court of Australia on 24 September 2003.  This was dismissed by His Honour Justice Wilcox on 31 October 2003 because the applicant failed to attend the scheduled hearing of the matter. On 28 November 2003 the applicant filed an application for special leave to appeal in the High Court of Australia.  The High Court issued a certificate of deemed abandonment on 26 July 2004.

6. One issue that I should address now however, is the issue of jurisdiction.  Federal Magistrate Raphael has already looked at the decision of the Tribunal that is the subject of the current application on 24 September 2003, importantly after the decision of the High Court in Plaintiff S157/2002 Commonwealth (2003) 195 ALR 24. He was unable to find any reason to review the Tribunal decision under s.39B of the Judiciary Act 1903. Raphael FM could find no jurisdictional error. Although he did not expressly state it as such, it is open to infer that the result of this finding is that this is a privative clause decision. His Honour Justice Wilcox did not look at the merits of the application, because he dismissed the application for want of appearance by the applicant.  The High Court deemed the matter abandoned. I am of course not bound by Raphael FM’s decision, but I could choose to follow it. Further the recent case of Ngu v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 21, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision, lodged outside the time limits in s.477 of the Migration Act is incompetent if a ground of review cannot be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Migration Act in the way described by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days. The issue of whether the decision complained of is a privative clause decision or not requires an examination of the ground of review.

7. At the hearing before me, Mr Smith who appeared for the respondent Minister, pressed that the application be dismissed on the substantive merits of the application but that the “Anshun estoppel” issue pursuant to the Notice of Motion also be dealt with. Mr Smith did not press the Notice of Motion seeking dismissal pursuant to Rule 13.10, but pressed as an alternative to the argument that the application lacked substantive merit, that Anshun estoppel would apply and that the application could be dismissed on that basis.

8. The applicant’s claims before the Tribunal were contained in a submission by his then migration adviser dated 14 December 1999, attached to his application to the respondent’s Department, and evidence he gave at the hearing before the Tribunal on 6 December 2002. The Tribunal found that the applicant was “extraordinarily vague about the political group of which he claims to have been a member” [see CB 84.7]. The Tribunal did not accept his claims that he was a member of the ATI, nor that he was threatened because of his membership of this group. The Tribunal came to the conclusion that it did not accept that there was a real chance that the applicant would be exposed to persecution resulting in serious harm as required by s.91R(1)(b) of the Act.

9. The applicant appeared at the hearing before me unrepresented. He had sought access to the Court’s Legal Advice Scheme and was referred to a lawyer on the panel of that Scheme. The applicant was assisted at the hearing by an interpreter in the Urdu language. By letter dated

   
   

   13 September 2004 the panel lawyer advised the Court that the applicant did not attend a conference arranged for him and that he would take no further action in this matter. At the hearing before me the applicant stated that his amended application had been drafted with the assistance of a “friend” who was not a lawyer. It is of course a matter for the applicant as to how he chooses to conduct his case. But it was clear at the hearing before me that the applicant was unable to provide anything in support of the contentions in his application.

10. At the hearing before me, the applicant did however raise an additional ground relating to the conduct of the hearing before the Tribunal. He complained that he was not given the opportunity to “say his story” and was restricted to “yes” or “no” answers, and did not “get a full chance to explain”. The applicant has produced no evidence to support his claim of any difficulties he encountered at the hearing before the Tribunal. I note that a copy of the Court Book and the tape of the Tribunal’s hearing was provided at least to the panel lawyer assigned to the applicant, and there is nothing before me to show the applicant could not have access to the tape. Further, from a reading of Raphael FM’s Reasons for Judgement [Annexure D to the affidavit of Karen Amanda Gettens – paragraphs 11-13] it is clear that the applicant raised the exact same complaint before him and from a reading of the reasons for Judgement [of which the applicant had notice: see his Notice of Appeal to the Federal Court at annexure “F” which makes reference to the judgment of Raphael FM], would have been aware of the need to produce evidence to support this claim in the application before me. In addition, it can be seen from the Tribunal’s decision record, and in particular the section headed: “The Applicant’s evidence” [CB 76.9 to CB 81.2] which is detailed and appears comprehensive, that more than just “yes” or “no” opportunities were provided to the applicant. For example, the Tribunal’s record at CB 78.5 shows this:

    “The Applicant confirmed that he claimed to have been a member of the Anjuman Tulaba Islam (ATI). I asked him which political party the ATI was affiliated with and he said that it was linked to the Jamaat-i-Islami. He said that his friends had forced him to join the ATI. There had been two parties in Sialkot and if you did not join one of these they would abuse you, calling you a bad guy. The Applicant said that he had become a member in October 1996. He said that each of the two groups had been trying to shout the other down and in Pakistan if you wanted something done you could threaten any person. He said that they had contacts in the police. The Applicant said that he had never done anything against the other group, the MSF, nor had he asked what his friends had done. He said that he had just joined the ATI to save himself. I asked him if he had done anything at all by reason of being a member of the ATI and he said that he had not. I asked him how long he had been a member and he said that membership did not have an expiry date. Once you become a member they could force you to do anything. In Pakistan they could do anything they wanted.”

    It is clear that the applicant is reported as having volunteered additional information. He has provided no evidence to contradict this record. In addition I note that the applicant was represented by a migration agent and that written submissions were made on his behalf to the Tribunal.

    Finally, at the hearing before me the applicant conceded that what he was really complaining about was that he does not accept what the Tribunal found. For all of these reasons this particular complaint should be rejected.

11. In his amended application the applicant asserts that he was denied procedural fairness in breach of ss.424A and 418(3) of the Act and particularises this claim by reference to information from Australian Embassy reports which he says formed part of the reasons for the Tribunal’s decision. This ground does not appear to have been specifically argued before Raphael FM. At the hearing before me the applicant was not able to identify what documents or information he was referring to. Further, he explained that this particular had been inserted by a “friend” whose only knowledge of the applicant’s case is what the applicant himself told him. Even further, at the hearing before me the applicant confirmed that the Tribunal’s decision record had been translated for him and that he had read that record and also confirmed that there was no reference to any such documents or information of which he could complain in the Tribunal’s record.

12. The Tribunal did have regard to a number of documents referred to at CB 76.5. The documents referred to here were before the Minister’s delegate [see CB 46] and the Tribunal records that all this evidence was available to the Tribunal, and to the extent that the information was relevant, it had regard to that evidence. Only two of the items are “Australian Embassy reports” and are reproduced at CB 91-94 and CB 95-96. Other independent country information documents to which the Tribunal referred are also reproduced at CB 97-160. The Australian Embassy reports (and the other reports) contain information that would be seen to be part of the reason for the Tribunal’s decision. But it is also clear that, on the current preferred view as explained with the authority of the Full Federal Court in Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, the Embassy reports and other country documents would be caught by the exclusion in s.424A(3), as it is clearly information that is not specifically about the applicant and to the extent that it is relevant to the Tribunal’s decision, it is that it concerns a class of persons of which the applicant is a member.

13. The applicant also asserts more generally a breach of the rules of natural justice in relation to “Embassy reports”. Again in this regard no specific Embassy reports are identified by the applicant by way of application or submission. In fact, as I have said, at the hearing the applicant conceded that having read the Tribunal’s decision there were no documents of which he could complain in this regard referred to in the Tribunal’s decision. However, it is well established that it is every applicant’s right to know the case against them and it is well established, as for example, in Kioa v West (1985) 159 CLR 550 that an applicant must be given an opportunity to address information that is relevant, credible and adverse. The applicant has been unable to specifically point to any such information. But, to the extent that this ground is particularised to be a reference to Australian Embassy reports, as I have already said, these were before the Minister’s delegate and the applicant was clearly on notice as to the issues raised in these reports. Also the Tribunal referred to some of the general country information by way of background – [see CB 81.3-83.6], but specifically raised the substance of relevant information with the applicant. See in particular CB 78.9, CB 79.3, and CB 80.7-81.2. It is clear the applicant was given an opportunity to respond and the Tribunal records his answers. In all these circumstances I can see no breach of the rules of natural justice.

14. The second contention in the amended application is that the Tribunal did not consider whether or not the Pakistani Government was unwilling to offer adequate protection on his return. At the hearing before me the applicant confirmed that it was not harm from the Pakistani authorities that he feared, but that he was “an ordinary person” who did not have “contacts” and that the authorities would not be able to protect him from the MSF. There is a simple answer to the applicant in relation to this assertion. The Tribunal found, after a lengthy and careful consideration that the applicant did not have a subjective fear of being persecuted. This was based on a consideration of the case the applicant himself presented, and in the alternative the applicant’s own behaviour. The Tribunal found that the applicant was “extraordinarily vague about the political group of which he claims to have been a member, the ATI” [CB 84.6], and did not accept that he was a member of ATI, nor that he was threatened by reason of his being a member of ATI [CB 84.9-85.1]. These findings were made in the context of a claim of membership of a particular social group or on the basis of real or imputed political opinion. The Tribunal also found the applicant to be vague as to what he feared would happen to him on return [CB 85.4] and that even if it accepted that he was a member of the ATI his involvement was limited [CB 85.9] and that his behaviour in returning to Pakistan from Dubai indicated that he did not have a subjective fear of being persecuted by reason of his involvement with the ATI [CB 86.3]. These findings were all open to the Tribunal on the material before it and the Tribunal gave reasons for these findings. In these circumstances it was not necessary for the Tribunal to go on and consider the issue of adequate state protection. Further, the applicant never asserted before the Tribunal that the Pakistani Government would be unwilling to offer him protection, nor did he say that he feared persecution by the Pakistani Government. This assertion must also fail.

15. The third contention is a complaint that the Secretary of the Department of Immigration Multicultural and Indigenous Affairs failed to comply with s.418(3) of the Act by not providing to the Tribunal documents relevant to the review. Clearly the respondent’s submission that this section in itself does not impose an obligation on the Tribunal and that a breach of s.418(3) is not a breach by the Tribunal, is unarguable. But in the circumstances of this application the applicant’s complaint may be seen to be a claim of a denial of procedural fairness as considered by the High Court in the cases of Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30. At the hearing before me the applicant again was unable to provide anything in support of this assertion. He repeated that his “friend” has prepared the application for him and he did not know anything about it.

16. Firstly, in relation to s.418(3) the majority of the High Court, in the cases raised by the applicant, held that it was unnecessary, inappropriate or both, to decide whether there had been a failure to comply with s.418(3). Gleeson CJ, did not give reasons for finding that it was inappropriate to decide this issue, but stated that the failure to comply with the section had not been made out. Callinan J, in relation to Ms Lie, stated that it was also unnecessary to deal with the matter, but added that if there was a breach of the section, its extreme technicality would not provide a ground for relief in the circumstances of the case. His Honour, Gummow J, with whom his Honour, Hayne J, agreed on this point, found it was unnecessary to decide this issue as relief was available on other grounds, but that it was also inappropriate to decide it because the relief sought would not be available for such non-compliance. Gaudron J also found it was inappropriate to grant the relief sought. Two Justices, his Honour, McHugh J and his Honour, Kirby J, made positive findings on this issue, but even McHugh J said there was no breach because, by identifying the Part B documents so they could be accessed by the Tribunal, the Secretary had fulfilled his duty. There is nothing that the applicant has put before me, nor can I find anything on the material before me in this case, to show how the High Court Judgment can assist this applicant in relation to this ground. In any event any failure by the Secretary of the Department to provide these documents is not a failure of the Tribunal.

    As to the ground that the Tribunal did not consider the relevant materials in the applicant's “Part B” documents, which were before the delegate, and the assertion that the Tribunal failed to collect all relevant documents and thereby fell into error, the majority of the High Court found that the Tribunal had misled the plaintiffs about the documents it had before it, and which it had considered in conducting a review “on the papers”. This outcome, it should be noted, was to a large extent determined by the facts, which the parties to those proceedings had agreed to.  I note there are no such agreed facts before me in the current matter. 

    Central to the High Court's finding, was that the Tribunal needs to be careful that it does not misrepresent, or appear to misrepresent, to applicants before it, as to the information it has before it, and to which it has regard in making its decision.

1. In the case before me, the circumstances can be clearly distinguished from the situation in Muin & Lie. Firstly, there are no agreed facts in this case as existed in the Muin & Lie situation. In the case before me the Tribunal did have regard to the relevant evidence, but there is nothing before me to show that any other of the elements in Muin & Lie are made out. Critically, in relation to the assertion of a denial of procedural fairness, there is nothing to show that the applicant was misled as to what was before the Tribunal and thereby denied an opportunity to put evidence or argument in relation to these matters, had he known of it. Importantly, the Tribunal at CB 76.5 makes specific reference to the cases of Muin & Lie. It is clear the Tribunal was aware of its obligations in this regard. It notes that the file received from the Secretary did not contain the documents referred to in the delegate’s decision under the heading: “Part B: Evidence Before Me”. This is clearly a reference to the list set out at CB 46. The Tribunal records that all of these documents were available to it and that it had regard to the evidence contained in those documents in so far as it was relevant to the case before it. In these circumstances it cannot be said that the Tribunal misled the applicant in the way found to exist in the cases of Muin or Lie.

2. The respondent’s Counsel pressed the issue of estoppel on the basis that the applicant had earlier brought proceedings in this Court in relation to the same Tribunal decision which he now seeks to again challenge. Mr. Smith for the respondent referred me to the recent Full Federal Court decision of Wong v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 242 where the Court considered the relevant legal principles in relation to estoppel. At paragraph [37] the Full Court states the principle that a plea in bar may be raised completely in respect of an issue, not only where a Court in earlier proceedings was actually required by the parties to pronounce a judgment, but applying the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 estoppel arises where an issue raised for the first time during the subsequent proceedings was not raised in the earlier. At paragraph [38] the Full Court looked at the question of the exception to this general rule and that is, where there are special circumstances in existence, to permit a party to raise the issue in subsequent proceedings. The Full Court stated that what constitutes special circumstances is by no means fixed, but that the Court has discretion to allow the issue to be raised in the subsequent proceedings if it determines that special circumstances exist.

3. The principles of res judicata, issue estoppel and Anshun estoppel all apply to proceedings of judicial review of administrative action. In relation to the applicant’s complaint that he was not given an opportunity to explain his case at the hearing before the Tribunal this issue was put before Raphael FM and was considered by him and disposed of by his judgment. In relation to the matters asserted now in the amended application, and to the extent they were not encompassed in the general claim put before Raphael FM, Anshun estoppel would apply. There is nothing before me to show that the issues raised now could not have been raised in the previous proceedings. Nor has the applicant put forward any special circumstances, nor can I see any such circumstances on the material before me, that would require that these issues be permitted now to be raised.

4. But in any event I have looked at the issues raised in the application before me and find for the reasons above that the current application is without merit. Nor can I see on the material before me any other issues that would assist the applicant. I can see no error on the part of the Tribunal. On this basis this is a privative clause decision and as the application has been made outside the time limit contained in s.477(1A) of the Act, the Court has no jurisdiction and the application must be dismissed on this basis.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  7 March 2005