SZARH v Minister for Immigration - [2004] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARH v MINISTER FOR IMMIGRATION

[2004] FMCA 615

MIGRATION – Review of RRT decision – where applicant had previously lodged an application for review with the Federal Court but later withdrew – where applicant then joined Muin and Lie class action – where applicant subsequently lodged an application for review with Federal Magistrates Court – whether the principle of Anshun estoppel should apply to these proceedings – where there had been no determination of the merits in the proceedings before the Federal Court – where applicant claimed to have a well-founded fear of persecution for reasons of his homosexuality and political opinion – whether Tribunal breached s.424A(1) Migration Act – where applicant did not present any evidence as to future persecution due to his homosexuality – where applicant claimed to have made a documentary exposing local government corruption which resulted in him being physically assaulted and threatened – whether Tribunal failed to consider whether the conduct could amount to persecution by reason of actual or imputed political opinion – whether delay in bringing proceedings should act as a bar to relief.

Migration Act 1958 (Cth), ss.417, 424A

Kundu v MIMA [2000] FCA 560
Han v MIMA [2000] FCA 421
Yilmaz v MIMA [2000] FCA 906
BC v MIMA [2001]FCA 1669
Wong v MIMA [2004] FCAFC 242
Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371
Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59
Re Schlieske (unreported, Beaumont J, 23 December 1987)
Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v MIMIA [2004] FCAFC 10
NAOL v MIMIA [2003] FCAFC 243
NARV v MIMIA (2003) 203 ALR 494
Voitenko v MIMA (1999) FCA 428
MIEA v Y [1998] FCA 15
Zheng v MIMIA [2000] FCA 670
Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000)
Applicant A v MIMA (1997) 190 CLR 225
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
R v Sec of State for the Home Department; Ex parte Bugdaycay (1987) AC 514

Applicant:

SZARH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ943 of 2003

Delivered on:

20 September 2004

Delivered at:

Sydney

Hearing date:

7 September 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr D Jay

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 18 April 2000 and handed down on 5 May 2000 is void and of no effect.
The Court orders
(i)The matter be referred to the Refugee Review Tribunal to be heard and determined in accordance with law.
(ii)The respondent pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 943 of 2003

SZARH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 615
Decision Date: 20 September 2004

CaseChat Overview and Summary

In the matter of SZARH v Minister for Immigration, the Federal Court of Australia was called upon to review the decision of the Refugee Review Tribunal which had dismissed the applicant's claim for refugee status and protection. The applicant, a Russian national, claimed protection on the basis of being a member of a particular social group of homosexuals in the Russian Republic and alleged past persecution due to his sexual orientation. The Tribunal found that while the applicant had suffered harm, the incidents occurred before the decriminalisation of homosexuality in Russia and did not amount to persecution under the Refugee Convention.

The court was required to determine whether the principle of Anshun estoppel should apply to prevent the applicant from raising certain issues that could have been addressed in earlier litigation. Anshun estoppel is a principle that prevents a party from relitigating issues that were or could have been determined in a previous proceeding. The court considered the applicability of this principle in the context of judicial review of administrative action and the special circumstances that may warrant its application. The court also examined the nature of the issues raised by the applicant and whether they properly belonged to the subject matter of the earlier litigation.

The Full Bench of the Court found that the principle of Anshun estoppel was not applicable in this case. The court noted that the principle is aimed at avoiding abuse of process and is of secondary significance when the beneficiary is a Minister of State with no personal interest in the outcome. Furthermore, the court held that the findings made by the Tribunal were within its remit and could not be impugned. The court also determined that the applicant's allegations did not establish harm of the type or severity to constitute convention persecution.

The Court declared the decision of the Refugee Review Tribunal void and of no effect. It ordered that the matter be referred back to the Refugee Review Tribunal for a new hearing and determination in accordance with the law. Additionally, the Court ordered the respondent to pay the applicant’s costs in the sum of $4,250.00. This decision underscores the importance of the Tribunal's proper consideration of all relevant evidence and findings in refugee status determinations.

Orders

Orders of the court

The Court declares that the decision of the Refugee Review Tribunal made on 18 April 2000 and handed down on 5 May 2000 is void and of no effect.

The Court orders

(i) The matter be referred to the Refugee Review Tribunal to be heard and determined in accordance with law.

(ii) The respondent pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In discussing the availability of Anshun estoppel in cases such as this the Full Bench in Wong v MIMA [2004] FCAFC 242 said at [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 which properly belongs to the subject matter 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 (1981) 147 CLR 589 at 598 and 602.” (emphasis added)The Court went on to consider the discretionary element contained in the application of the Anshun principal, commented upon the wide range of factors which it would be necessary to take into consideration when deciding what constituted special circumstances and approved the decision in BC (supra). At [39] the Court said:“Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 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.” The inapplicability of Anshun estoppel applying in cases where there was no determination on the merits was accepted in Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371; Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59 at 71 and Re Schlieske (unreported, Beaumont J, 23 December 1987 at page 22). For the reasons given above I would not apply the principle of Anshun estoppel to this application. The factual background to the applicant’s claim for refugee status and protection from Australia involves two distinct reasons for separate forms of persecution allegedly suffered and feared. The first reason for his well-founded fear of persecution was his being a member of the particular social group of homosexuals in the Russian Republic. The Tribunal at [CB 151] accepted that the applicant suffered serious harm on a number of occasions which had resulted in his sexual abuse and beating. But it noted that those incidents occurred before the decriminalisation of homosexuality in Russia, which occurred in 1993. The Tribunal then went on to make certain findings of fact about other allegations including findings about their credibility but did not consider that some allegations established harm of the type or severity to constitute convention persecution. The Tribunal found the suggestion that the applicant was refused his “propiska” because of his homosexuality implausible and found the allegation that the police made a report to his employers about his homosexuality far-fetched. None of these findings can be impugned by this court as they are clearly within the Tribunal’s remit: Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; NAHI v MIMIA [2004] FCAFC 10 at [12]; NAOL v MIMIA [2003] FCAFC 243 at [7].

Ratio Decidendi

Legal Principle Established

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