MZXJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1559 (9 November 2006)

Last Updated: 20 November 2006

FEDERAL COURT OF AUSTRALIA

MZXJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1559

MZXJS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 678 OF 2006

RYAN J
9 NOVEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 678 OF 2006

BETWEEN:	MZXJS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	9 NOVEMBER 20069 NOVEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent’s costs, to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 678 OF 2006

BETWEEN:	MZXJS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RYAN J
DATE:	9 NOVEMBER 20069 NOVEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from orders of Riethmuller FM of 6 June 2006 dismissing an application filed on 1 May 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 26 June 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant a protection visa (class XA) to the applicant.

2 The applicant is a citizen of Sri Lanka who arrived in Australia on 28 August 2000. On 7 September 2000 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. She claimed to fear persecution in Sri Lanka by reason of political opinion imputed to her from her relationship with her brother who had been a member of the Liberation Tigers of Tamil Eelam ("the LTTE"). A delegate of the Minister refused the application on 7 March 2001.

3 The applicant then applied on 16 March 2001 to the Tribunal for a review of the Minister’s decision. The Tribunal considered her claims and accepted that her twin brother had been an active member of the LTTE. It found that the harassment of the applicant by the army, which she claimed to have occurred almost daily, did not appear to have been motivated by political factors or to have involved serious harm. The Tribunal expressed the opinion that most people in Sri Lanka would encounter questioning of the kind to which the applicant had been subjected. The Tribunal was prepared to concede that the extensive checking which she had endured over a period of years may have been frightening for the applicant.

4 The Tribunal considered the applicant’s claims that she had been arrested on two occasions and, due to concerns about the truthfulness of her claims at the hearing, it made its own enquiries about the authenticity of the documents provided as evidence of the arrests. The documents were found to be authentic. The Tribunal accepted that the questioning by the authorities had been humiliating and intimidating for the applicant.

5 The Tribunal considered whether the applicant would face serious harm for a Convention reason if she were to return to Sri Lanka. It found that there was a remote chance that she would suffer serious harm by reason of past mistreatment in custody, her ethnicity and associated or imputed political opinions. The Tribunal noted that she had never been seriously suspected of association with the LTTE, but conceded that such absence of suspicion had been at a time when the real relationship with her brother had not been known to the authorities.

6 The Tribunal concluded that there was only a remote chance that the applicant would be harmed in the area of her home town, but explained this assessment as due to the applicant’s having no fear of being harmed by the LTTE in the area of her home town combined with external evidence about the present level of LTTE activity.

7 The applicant expressed her fear of sexual assault, due largely to her status as a young single woman with no immediate family. The Tribunal considered general information about violence towards women in Sri Lanka and found that no greater risk is faced by single women without family than by those who could expect family support or protection. The Tribunal also noted that the applicant had lived with an elderly couple before travelling to Australia and had not been harmed. The Tribunal found that she may need to exercise caution and that there is a remote chance of her being sexually assaulted or being a victim of other crime in Sri Lanka.

8 The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and, accordingly, was not satisfied that she is a person to whom Australia has obligations under the Refugee Convention. Therefore, on 26 June 2003, it affirmed the decision of the Minister not to grant a protection visa.

9 On 31 July 2003, the applicant applied to the Federal Magistrates Court for a review of the Tribunal’s decision. The application was heard on 24 July 2004. Federal Magistrate Bennett held that the Tribunal had based its conclusion on findings of fact available from the evidence and the assertions that it had committed jurisdictional error or an error or law were merely criticisms of the Tribunal’s fact-finding. The learned Federal Magistrate dismissed the application on 24 January 2005, and ordered the applicant to pay the Minister’s costs.

10 On 9 February 2005, the applicant lodged a notice of appeal to this Court and the appeal was heard on 5 October 2005. On 26 October 2005 Sundberg J made orders dismissing the appeal, holding that the claim of the appellant, as she was then, had little substance. On 10 November 2005, the applicant then sought special leave to appeal to the High Court of Australia. The application was dismissed on the papers by order of Hayne and Crennan JJ made on 11 April 2006.

11 On 1 May 2006, the applicant filed a further application in the Federal Magistrates Court. On 26 May 2006 it was ordered that the matter be adjourned to 6 June 2006 for what was called a "summary dismissal hearing". Before Riethmuller FM the applicant claimed that the decision of the Tribunal had been made without jurisdiction or alternatively had been affected by jurisdictional error.

12 At the summary dismissal hearing on 6 June 2006, Riethmuller FM held that the issues which the applicant was seeking to agitate had been sufficiently dealt with by Bennett FM and, even if the issues were not precisely the same in each proceeding, the issues as a whole could all have been raised at the initial hearing. His Honour accordingly found that the appellant was precluded by res judicata, issue estoppel or Anshun estoppel from litigating those issues again. As a result, he dismissed the second application to the Federal Magistrates Court noting that, even if he were wrong, the application had been brought outside the time limits imposed by s 477 of the Migration Act 1958 (Cth) and, for that additional reason, must be dismissed in any event. His Honour also ordered the applicant to pay the Minister’s costs of her second application to the Federal Magistrates Court.

Proceedings in this Court

13 By notice of appeal filed in this Court on 20 June 2006, the applicant seeks to set aside the orders of Riethmuller FM on the grounds that the decision of the Tribunal was made without jurisdiction, or was affected by jurisdictional error, which means that the decision of the Tribunal is not a decision to which s 474 of the Migration Act applies. She also asserts that she has been denied procedural fairness or natural justice. The notice of appeal is marked "draft" and was filed with an application for leave to appeal and an affidavit in support of the application for leave to appeal.

14 The applicant’s grounds for leave to appeal are contained in her affidavit, sworn 20 June 2006. Essentially, she claims that the Tribunal erred by not considering the death certificate of her brother, and by concluding that she did not face a real chance of persecution due to her ethnicity or imputed political opinion by reason of her relationship with her brother, and her membership of a particular social group. The applicant also claims that she was unaware that the hearing which she attended on 6 June 2006 was an interlocutory hearing and was consequently unaware that she had seven days within which to seek leave to appeal. Further, the applicant claims that the dismissal of her application for leave to appeal would be a denial of natural justice.

15 On behalf of the Minister it has been submitted that the order of Riethmuller FM was a summary dismissal and therefore interlocutory. Accordingly, the applicant had to seek leave to appeal within seven days of the decision. As that time limit was not complied with the Minister further contends that the applicant should also have filed an application for an extension of time in which to apply for leave to appeal. Moreover, according to the Minister, even if an extension of time were granted, the applicant could not demonstrate any grounds on which she would have reasonable prospects of success on the appeal.

Disposition of the appeal

16 In her written contentions of fact and law filed on 24 October 2006, the applicant recounted the history of her attempts to obtain a protection visa. In the same contentions she reiterated her criticisms of the Tribunal’s assessment of her claims to be a refugee, and ended with these paragraphs;

‘11. I submit that the Federal Magistrate Court was in error by holding that the Tribunal made a finding of fact on the evidence and that the Tribunal’s findings of fact were not open to it on the materials before it. The source of my fears and circumstances were raised by me and by the material before the Tribunal. On a fair and uncritical analysis of the Tribunal’s findings and reasons my claims in this respect were not addressed and this amounts to jurisdictional error.
12. I say I should be allowed to run my appeal as I do have a very sound case and to deny me the chance would be very unfair.’

17 However, neither in those contentions nor in her affidavit filed on 20 June 2006 which accompanied her application for leave to appeal and her purported notice of appeal, has the applicant explained how the case which she now seeks to make, differs from that advanced before Bennett FM, or on appeal before Sundberg J, which was determined by the High Court’s refusal, on 11 April 2006, of special leave to appeal.

18 I agree with the contention made on behalf of the Minister that the order of Riethmuller FM after the "summary dismissal hearing" was interlocutory in nature so that the applicant requires leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth); see eg Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344.

19 In order to obtain leave to appeal the applicant must show that, in all the circumstances, the decision, in this case that of Riethmuller FM of 6 June 2006, is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused, supposing the decision below to be wrong; see Decor Corporation v Dart Industries Inc (1991) 33 FLR 397 where a Full Court of this Court applied the test formulated by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Limited (1978) VR 431.

20 I am prepared to assume that, if Riethmuller FM’s decision were wrong, the applicant would suffer a substantial injustice as the result of the striking out of her application for review of the Tribunal’s decision. On that same assumption, the probability of a substantial injustice would, in the circumstances, including the very short period before which the applicant exceeded the seven day time limit, warrant the granting of an extension of time pursuant to O 52 r 10(2A) of the Rules of this Court. However, I can detect no error in Riethmuller FM’s application of the principles of res judicata, issue estoppel and Anshun estoppel. Those principles became applicable because what at all times has been necessary for the applicant to establish has been some species of jurisdictional error on the part of the Tribunal. As Merkel J observed in Somanader v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 178 ALR 677, 691 at [63];

63 Section 75, paragraph (v) [of the Constitution] gives a right to jurisdiction only, not a right to the specified remedies. The remedies must be sought in public law. The cause of action is firmly grounded in the pre-existing substantive law. While common law grounds of review remain open under s 75(v), the grounds available under Pt 8 of the Act to impugn a decision of the RRT require that, in general, the entitlement to relief is to be determined by the same principles of substantive law as are applicable to an action under s 75(v). Relevantly, for present purposes the jurisdictional error upon which the applicants are entitled to succeed arises on the basis of some substantive law that is applicable in the proceeding under s 75(v). Thus, while there need not be a coincidence of causes of action in all cases, in the present case the same cause of action is relied upon in the two proceedings.
64 This coincidence is, in a sense, dictated by the orders of Hayne J remitting to the Federal Court that part of the matter in which the grounds of relief sought reflected grounds under Pt 8 of the Act in accordance with the limitation of the Federal Court’s power to review under s 485(3) and otherwise adjourned the application, in respect of any wider grounds, to a date to be fixed. Thus, his Honour’s order ensured that the grounds relied on before the Federal Court would be no wider than those able to be relied upon under Pt 8.
65 Accordingly, for the above reasons, there is a commonality of the causes of action on the basis of each of the various tests discussed above. The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the two sets of proceedings differ in any material respect. Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.’

21 In the present case, the right to relief which the applicant has invoked, and had to invoke, in the Federal Magistrates Court was exactly the same right which she had invoked before Bennett FM and, on appeal, before Sundberg J and which had been extinguished by the High Court’s refusal of special leave to appeal from the latter’s order. The same factual circumstances attended both sets of proceedings which are, in substance, the same. The right to relief was informed by the same substantive law principles and the parties are identical. It follows that the High Court’s refusal of special leave on 11 April 2006 finally determined the issue of whether the Tribunal had committed an error of law in the interpretation and application of the Refugees’ Convention to the fear of persecution asserted by the applicant, or had failed to accord the applicant procedural fairness.

22 It also follows that Riethmuller FM was entirely correct to conclude that the applicant is precluded by res judicata or issue estoppel, from pursuing essentially the same grounds of review as had been ventilated before Bennett FM and Sundberg J, from whose orders the High Court refused special leave to appeal. For these reasons the application for leave to appeal from the order of Riethmuller FM of 6 June 2006 must be refused, with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan

Associate:

Dated: 17 November 2006

	The applicant appeared in person
Counsel for the First Respondent:	Mr T Mosby
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	9 November 2006
Date of Judgment:	9 November 2006