SZQJH v Minister for Immigration
[2017] FCCA 2723
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQJH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2723 |
| Catchwords: PRACTICE AND PROCEDURE – Summary Dismissal – whether applicant’s application for judicial review should be summarily dismissed as an abuse of process pursuant to r.13.10(c) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), s.13.10 Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B), 46A, 476 |
| Cases cited: SZQJH v Minister for Immigration & Anor [2013] FCCA 733 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 146 FCR 10 BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 |
| Applicant: | SZQJH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2086 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 October 2017 |
| Date of Last Submission: | 30 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ben Zipser |
| Solicitors for the Applicant: | Unisaj Legal |
| Counsel for the Respondents: | Mr Hamish Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2086 of 2017
| SZQJH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
On 30 July 2017, the applicant filed an application seeking judicial review of a recommendation by a second Independent Protection Assessment Reviewer (“the Second Reviewer”) dated 26 May 2012 refusing the applicant a protection visa.
By way of Application in a Case filed on 28 July 2017, the first respondent seeks, inter alia, an order that the applicant’s application for judicial review, filed on 30 July 2017, be summarily dismissed as an abuse of process pursuant to r.13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). In support, the first respondent read the Affidavit of Tom Hillyard, affirmed on 26 July 2017. Mr Hillyard’s Affidavit annexed, inter alia, the history of legal proceedings between the parties, including copies of the judgments.
The relevant background chronology to this matter is as follows:
(i)On 20 March 2010, the applicant arrived on Christmas Island as an unauthorised boat arrival.
(ii)On 25 April 2010, the applicant participated in an Entry Interview.
(iii)On 12 June 2010, the applicant applied for a Review Status Assessment (RSA).
(iv)On 17 August 2010, the applicant was notified that he had been assessed as not meeting the Convention of a refugee.
(v)On 17 August 2010, the applicant sought an Independent Merits Review of that decision.
(vi)On 13 December 2010, the applicant was interviewed by an Independent Reviewer (“the First Reviewer”).
(vii)On 13 May 2011, the applicant was notified that the First Reviewer had recommended that he was not a person to whom Australia had protection obligations under the Convention.
(viii)On 2 March 2012, the Federal Court of Australia upheld the applicant’s appeal and declared that the First Reviewer had denied the applicant procedural fairness.
(ix)On 24 March 2012, the complementary protection provisions were introduced into the Migration Act 1958 (Cth) (“the Act”) and commenced operation.
(x)On 1 May 2012, the Second Reviewer conducted an interview with the applicant.
(xi)On 30 May 2012, the applicant was notified that the Second Reviewer had recommended that the applicant was not a person to whom Australia had protection obligations under the Convention. The Second Reviewer considered whether the applicant met the complementary criteria under s.36(2)(aa) of the Act and concluded that he did not.
(xii)On 4 July 2012, the applicant filed an application for judicial review of the decision of the Second Reviewer.
(xiii)On 12 July 2013, the Federal Circuit Court of Australia dismissed the application for judicial review (see SZQJH v Minister for Immigration & Anor [2013] FCCA 733 per Judge-Lloyd Jones).
(xiv)On 2 August 2013, the applicant filed a notice of appeal from the orders of the Federal Circuit Court of Australia in the Federal Court of Australia.
(xv)On 4 December 2013, the Full Court of the Federal Court of Australia dismissed the applicant’s appeal.
(xvi)On 20 December 2013, the applicant filed an application for special leave to appeal to the High Court of Australia.
(xvii)On 15 August 2014, the High Court of Australia dismissed the application for special leave to appeal.
(xviii)On 2 September 2014, the applicant wrote to the Minister for Immigration and Border Protection (“the Minister”) requesting that the Minister consider exercising his power under s.46A(2) of the Act to allow the applicant to make a fresh application.
(xix)On 10 November 2014, the Minister informed the applicant that the applicant’s request had been refused.
(xx)On 14 October 2014, the applicant lodged a complaint with the United Nations Committee Against Torture.
(xxi)On 6 June 2017, that Committee issued a decision which dismissed the applicant’s complaint.
(xxii)On 30 June 2017, the applicant filed a further application in this Court seeking judicial review of the Second Reviewer’s recommendation, the subject of this proceeding.
The ground of review in the applicant’s present application for judicial review is as follows:
“1. The applicant claimed that, if he was required to return to Sri Lanka, he would be targeted for money by paramilitary groups or the government (by laying of false charges) because he was a wealthy Tamil businessman from the Eastern province (“the Extortion Claim”): see for example paragraphs 40 and 66 of the decision of the Independent Merits Reviewer [the Second Reviewer]. Country information before the Second Reviewer indicated that paramilitary groups carried out abductions for ransom and extortion activities in Sri Lanka, with reports of such activities increasing during the year in the north and east: see paragraph 77 of the Decision. Under the complementary protection provisions ins 36(2)(aa) of the Migration Act 1958 (Cth), the applicant would meet the criteria for the grant of a protection visa if the Minister had substantial grounds for believing that there is a real risk the applicant would suffer significant harm if returned to Sri Lanka. The manner in which the Second Reviewer dealt with the Extortion Claim in considering whether the applicant met the criterion for complementary protection was inadequate. Specifically, first, the Second Reviewer reasoned that “given [that] paramilitary groups have [not] had any interest in the claimant in the past I do not accept that there is a real risk that he would suffer significant harm from them on return:” paragraph 104. However, while past events provide a guide to the future, they are not the only guide. Country information before the Second Reviewer indicated that paramilitary groups carried out extortion activities in the Eastern province. Second, the Second Reviewer did not deal with the applicant's additional claim that the government may lay “false charges ... against people with this profile”: at paragraph 40. In the circumstances, the Second Reviewer fell into jurisdictional error in making the complementary protection finding in the Decision.”
It is common ground between the parties that the ground of review is different to grounds of review considered by Judge Lloyd-Jones in his decision in the Federal Circuit Court of Australia dated 12 July 2013. However, the first respondent contends that the cause of action the subject of the present application for judicial review is the same as that litigated by the applicant in his previous judicial review proceeding, that being an application to show cause pursuant to s.476 of the Act alleging jurisdictional error in the second respondent’s decision.
The first respondent’s counsel, Mr Hamish Bevan, formally made the following submissions in relation to the applicability of res judicata to judicial review of administrative decisions:
“10 The exercise of judicial power, in this case dismissing the applicant’s assertion of jurisdictional error in the decision of the second respondent, involves the settling of the dispute between the parties: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374. In that way, the rendering of a final judgment “quells” the controversy between the parties: Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, 608. That is, the rule of res judicata operates so that generally, a proceeding cannot be maintained in respect of a cause of action on which judgment has been entered, as long as that judgment stands: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 (“Chamberlain”); Blair v Curran (1939) 62 CLR 464, 532; Gibbs v Kinna [1999] 2 VR 19 at [21].
11 For res judicata to apply, then, the cause of action must be the same in the new proceeding as that contended in the original proceeding: Chamberlain at 510-511. The cause of action in this sense is to be determined by its substance and not form: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 418 cited in Kong v Minister for Immigration and Citizenship & Anor (2011) 199 FCR 375, 382 (“Kong”).
12 The cause of action the subject of the present application for judicial review is the same as that litigated by the applicant in his previous judicial review proceedings. The present proceeding is an application to show cause pursuant to s.476 of the Act, alleging jurisdictional error in the second respondent’s decision. As was the previous proceeding.
13 Accordingly, the first respondent respectfully submits that res judicata operates so as to prevent the applicant from pursuing the present application.”
However, Mr Bevan conceded that on the present state of authorities it has not been finally concluded whether res judicata operates in a judicial review proceeding of an administrative decision where the only issue before the Court on judicial review is whether or not the decision is affected by jurisdictional error; or, whether res judicata applies also to individual grounds raised in such proceeding.
It is not necessary for me to make a final determination to the applicability of res judicata in this case where the applicant raises a ground not specifically raised in the proceeding before Judge Lloyd-Jones.
It is common ground that this Court should decide whether an estoppel such as that found in the Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 (“the Anshun Estoppel”) should operate to bar the applicant from bringing this present proceeding on the basis that to do so is an abuse of process.
Essentially, both parties agree that Anshun Estoppel would operate to prevent the applicant from re-litigating issues which were or should properly have been the subject of the previous judicial review proceeding. It is common ground that in considering such, the Court should have regard to special circumstances raised by the applicant.
It is well established that Anshun Estoppel applies equally to judicial review as it does to litigation between private parties (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 146 FCR 10 at [39] per Emmett, Conti and Selway JJ).
The relevant principles in relation to Anshun Estoppel are accurately summarised in the written submissions of counsel for the applicant, Mr Ben Zipser, as follows:
“29. In Wong v Minister (2004) 204 ALR 722 at [49] Lindgren J stated:
“Anshun estoppel” applies “to every point which properly belonged to the subject of [earlier] litigation … which the part[y], exercising reasonable diligence, might have brought forward at the time [of the earlier proceeding]”: Henderson v Henderson (1843) 3 Hare 100 ; 67 ER 313 (Henderson) at Hare 115; ER 319 (itself an instance of res judicata). The principle was identified by Gibbs CJ, Mason and Aickin JJ in Anshun itself as operating where “the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: at CLR 602; ALR 12 . The minister accepts that where the Anshun estoppel test is met, the court, nonetheless, has a discretion, where “special circumstances” exist, to allow the later proceeding to continue.
30. On appeal, in Wong v Minister (2004) 146 FCR 101 at [37]-[39]:
[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 (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 supra at p 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 Assn 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 para [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] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority 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, 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.
31. The Full Court, at [38], endorsed the consideration of “special circumstances” in the earlier Full Court decision of BC v Minister [2002] FCAFC 221. In that earlier decision, the Full Court stated at [31] and [38]:
[31] The special circumstances on which the appellant relied can be summarised 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 was such that it was reasonable not to rely on jurisdictional unreasonableness; (e) a High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 had opened up the possibility of judicial review on the ground of jurisdictional unreasonableness; (f) the proposed ground of review was meritorious especially in view of the fact that the High Court had granted special leave in Gamaethige; and (g) the appellant could not obtain redress by suing counsel for neglecting to take the point in the proceedings before Madgwick J. [38] In the Court's view, a combination of the four factors referred to above at subpara(a), subpara(b), subpara(c) and subpara(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.”
It is common ground that the issue in this case really boils down to whether special circumstances exist such that the applicant should not be bound by an Anshun Estoppel from bringing this proceeding.
Special Circumstances
Counsel for the applicant submitted that the following special circumstances are relevant in this case:
(i) The proceeding raises an important issue concerning the life and liberty of the applicant and the proceeding is analogous to criminal proceedings.
(ii) The first respondent is a respondent by force of statute only and not subject to pressures of costs and time which often weigh on individuals who are litigants.
(iii) The complementary protection amendments came in only shortly before the judicial review hearing by Judge Lloyd- Jones and at the time the applicant filed his application for judicial review in July 2012 there was no judicial guidance on the complementary protection provisions.
(iv) At the time of hearing before Judge Lloyd-Jones in February 2013, there were only two decisions of the Federal Circuit Court and Federal Court available involving the complementary protection provisions.
(v) The application for judicial review as presently pleaded has prospects of success.
Special circumstances (i) and (ii)
The first and second of the special circumstances relied on by the applicant (being (i) and (ii) above) were the same as those relied in BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [31] and [38] (“BC”). The Full Court of the Federal Court of Australia in BC found that the combination of four factors that included those two factors amounted to special circumstances. However, the Court stated that any one of the four factors on its own did not amount to special circumstances.
The other two factors considered by the Full Court in BC were the complexity of the bifurcated process of review and the state of authorities at the relevant time in relation to whether it was reasonable or not to rely on jurisdictional unreasonableness. The Court found that the first, third and fourth factors were of significantly more weight than the second factor which would attract only marginal weight. In BC, the Court found that there was little judicial guidance available on the developing notion of jurisdictional unreasonableness at the time.
In BC, the appellant also relied on the merits of his case as a special circumstance.
Special circumstance (iii)
The applicant relied as a special circumstance on the state of authorities at the time of hearing before Judge Lloyd-Jones (being (iii) above), in relation to s.36(2)(aa) of the Act which introduced complementary protection. Section 36(2)(aa) of the Act is clear in its terms and is as follows:
“(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…”
Section 36(2B) of the Act supplemented s.36(2)(aa) of the Act as follows:
“(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
Prior to the decision of Judge Lloyd-Jones, s.36(2B) of the Act was the subject of specific consideration in the context of s.36(2)(aa) of the Act by the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147 per Lander, Jessup and Gordon JJ (“MZYYL”). MZYYL stated, per incuriam, that the inquiry inquiry provided for in s.36(2)(aa) of the Act necessarily involves consideration of the matters referred to in s.36(2B) of the Act.
The Full Court in MZYYL carefully set out the amendments introducing the complementary protection regime and summarised comprehensively the complementary protection regime. Relevantly, the Full Court stated as follows:
“17. As noted earlier, we are concerned with s 36(2)(aa) of the Act. It forms part of the Complementary Protection Regime introduced by the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (the Bill) introduced into Parliament in February 2011 and passed on 19 September 2011. The Bill received royal assent on 14 October 2011, and the amending provisions commenced, by proclamation, on 24 March 2012. The amending provisions apply to an application for a protection visa made, but not finally determined (within the meaning of s 5(9) of the Act), before 24 March 2012.
18. The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.
19. Further, the test adopted in ss 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.”
The Second Reviewer specifically referred to s.36(2)(aa) of the Act under a separate hearing ‘Complementary Protection’ in its decision. It accurately summarised the effect of s.36(2)(aa) of the Act as follows:
“18. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if the person is a noncitizen in Australia to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) ('the complementary protection criterion').
19. “Significant harm” for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment,” and “torture”, are further defined in s 5(1) of the Act.
20. There are certain circumstances in which there is taken not to be a real risk that a person will suffer significant harm in a country. These arise where it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm; where the person could obtain, from an authority of the country, protection such that there would not be a real risk that the person will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the individual personally: s 36(2B) of the Act.”
The Second Reviewer then considered the applicant’s claims in light of the complementary protection criteria and concluded as follows:
“104. The Reviewer has considered the claimant's evidence in relation to complementary protection and I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Given my findings that I do not accept that the CID or other Sri Lankan authorities have had any interest in the claimant, I do not accept that there is a real risk he would suffer significant harm from them on return. Given my findings that I do not accept that Karuna or other paramilitary groups have had any interest in the claimant, I do not accept that there is a real risk that he would suffer significant harm from them on return. As noted above, I do not accept the agent's submission that if the claimant enters the international airport in Colombo that he would be subject to cruel and inhumane treatment, or any other form of significant harm. As noted in the above findings, I am satisfied that the claimant departed Sri Lanka on a legal passport, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being returned from Australia to Sri Lanka, there is a real risk that the claimant will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act 1958.”
It should be noted that the applicant was represented throughout the relevant proceedings.
Accordingly, I do not accept that the state of authorities was sufficiently uncertain as to render it a special circumstance in considering whether the ground now presently relied on relating to complementary protection should have properly been the subject of the previous judicial review proceeding. There was sufficient clarity and guidance in relation to the new complementary protection criterion in s.36(2)(aa) of the Act and the relevant supporting subsections at the time Judge Lloyd-Jones gave his decision, such that a complaint of the nature the applicant now makes was reasonably available for the applicant to make at that time.
The applicant submits that the Second Reviewer considered the applicant’s extortion claim, however, rejected it for Convention reasons. However, the applicant conceded that after rejecting the applicant’s claims under s.36(2)(a) of the Act, the Second Reviewer made brief findings concerning the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act as follows, “Given my findings that I do not accept that Karuna or other paramilitary groups have had any interest in the claimant, I do accept that there is a real risk that he would suffer significant harm from them on return.”
The applicant now complains that the manner in which the Second Reviewer dealt with the extortion claim in considering whether the applicant met the criterion of complementary protection was inadequate.
Counsel for the applicant, Mr Zipser, submitted that while past events provide a guide to the future, they are not the only guide and that country information before the Second Reviewer indicated that paramilitary groups carried out extortion activities in the Eastern province. Further, Mr Zipser contended that the Second Reviewer did not deal with the applicant’s additional claim that false charges may be laid against the applicant because of his profile as a wealthy Tamil businessman.
However, that Second Reviewer’s decision was considered in judicial review proceedings by Judge Lloyd-Jones in the Federal Circuit Court and on appeal to the Full Court to the Federal Court of Australia. Whilst the particular complaints now raised by the applicant were not considered by those Courts, they were not specifically raised by the applicant, who was legally represented at all times by experienced and competent lawyers.
There was ample opportunity for a complaint in the terms of the one now formulated to have been made. Had such a claim been made, no doubt the applicant would have been met with a contention by the first respondent that no such claim had been clearly articulated to the Second Reviewer and no such claim reasonably arose on the evidence and material before the Second Reviewer (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at [58] per Black CJ, French and SelwayJJ). I accept that such a contention may not have ultimately succeeded. However, it may have. At best, the applicant’s complaint may have been arguable. However, in my view, by itself, it is not a sufficiently meritorious ground to be capable of establishing special circumstances.
I have particular regard to the significant public interest in the finality of administrative decisions and that public interest requires that there be an end to litigation. As McHugh J stated in Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 (“Ex Parte Marks”) at [17]:
“… The efficacy of public acts, decisions and judgments cannot be the hostage of the applicant’s search for favourable legal advice.”
The rights of the first respondent were determined in a decision of the Full Court of the Federal Court of Australia and an appeal from that decision was dismissed by the High Court of Australia. Whilst McHugh J’s comment in Ex Parte Marks related to an application for an extension of time, in my view His Honour expresses pertinent comments that a respondent has a vested right to retain a judgment or decision and that its rights should not be dependent on whether or not an applicant can, at some future time, obtain a favourable legal opinion that he or she has an arguable case (see Ex Parte Marks at [17]).
The applicant in the case before this Court may now have articulated a complaint never raised before and, whilst not doomed to failure, in all the relevant circumstances has insufficient prospects of success to amount to a special circumstance such that the applicant should not be estopped from now running such a point.
The present proceeding before the Court is an abuse of process and should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 November 2017
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