Applicants A277/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 40 (3 February 2006)

Last Updated: 9 February 2006

FEDERAL COURT OF AUSTRALIA

Applicants A277/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 40

MIGRATION – appeal – whether precluded by Anshun estoppel


Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 - applied






























APPLICANTS A277/2002 v MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS
VID 1399 OF 2005

MERKEL J
3 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1399 OF 2005

BETWEEN:	APPLICANTS A277/2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	3 FEBRUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The appeal be dismissed.

2.	The appellants pay the respondents’ costs of and incidental to the appeal.

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 1399 OF 2005

BETWEEN:	APPLICANTS A277/2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MERKEL J
DATE:	3 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The present proceeding is an appeal from a judgment of the Federal Magistrates Court (‘FMC’) of 17 August 2005 dismissing the appellants’ applications for review on the basis of Anshun estoppel.

2 The four appellants, who are citizens of Sri Lanka, applied for protection visas. The appellants are a husband and wife and their two children. The husband claimed to fear persecution by reason of his actual or imputed political opinion. The claims of the wife and the children are derivative, rather than independent claims, as they are dependent on a successful outcome of the husband’s claim to refugee status.

3 The appellants’ applications were refused by a delegate of the first respondent, and the Refugee Review Tribunal (‘the RRT’) affirmed that refusal. On 23 November 2001, the first appellant (the husband) filed an application in the Court seeking judicial review of the RRT’s decision.

4 On 29 April 2002, Marshall J dismissed that application (see VBC v Minister for Immigration and Multicultural Affairs [2002] FCA 533). The grounds of review before Marshall J were that the decision was not reasonably capable of reference to the decision making power given to the decision maker, that the decision does not relate to the subject matter of the legislation and that the decision maker was not acting in good faith. The particulars of the three grounds were expressed as follows:

‘The Tribunal has asked itself a wrong question, in that it states that the country information indicates that Sinhalese are not considered supporters of the LTTE and on the basis of this concludes that the authorities would not consider it plausible that the applicant was pro LTTE, instead of asking itself the question whether this particular Sinhalese was a supporter of the LTTE or it would be imputed that he was such a supporter. Therefore, on the basis of this it then rejects the evidence of the applicant that he was subject to hostility.

That likewise, with his support of the UNP, the Tribunal rejects the evidence of the applicant as not lacking credibility and subsequently the totality of his evidence.

The Tribunal erred in law in failing to properly apply the real chance test as laid down in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 in the manner it approached its considerations of the Applicant’s case. The Tribunal did not undertake the required speculation on the chance of persecution emerging from a consideration of the whole of the material before the Tribunal.’

5 Marshall J found that ‘each of the grounds raised in the amended application essentially do no more than cavil with findings of fact made by the RRT which were open to it to make’ and that there was ‘no substance to the contention that the RRT misapplied the "real chance test" referred to in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.’

6 A notice of appeal from the decision of Marshall J was filed by the first appellant but was discontinued on 11 November 2002. On 4 November 2002, and prior to discontinuing the appeal, the appellants applied to the High Court for an order nisi for writs of certiorari, mandamus and prohibition. On 7 February 2003, the High Court remitted the matter to this Court. On 2 June 2004, North J transferred the proceeding to the FMC. On 17 August 2005, the FMC dismissed the application on the basis that Anshun estoppel as outlined in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) prevented it from being pursued.

7 Before the FMC, the appellants relied on the following grounds of review:

‘(a) a breach of the rules of natural justice occurred in connection with the making of the Decision.
(b) the Decision involved an error of law, whether or not the error appears on the record of the Decision.
(c) procedures that were required by law to be observed in connection with the making of the Decision were not observed.
(d) the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
(e) that there was no evidence or other material to justify the making of the Decision.
(f) the Decision was otherwise contrary to law.’

8 The ground concerning natural justice, which is now the subject of this appeal, was not raised before Marshall J. The FMC found that:

‘it was unreasonable for the applicants not to have advanced their full claim in the original proceedings before Marshall J in the Federal Court and that no "special circumstances" exist which would relieve the applicants of the ordinary operation of the Anshun rule. No material was before the Court to advance a case of "special circumstances" existing and there appears no reason for the issues raised in these proceedings not being raised in the earlier proceedings.’

9 The FMC also found that, even if it were wrong in that conclusion, there was no jurisdictional error in any event because, inter alia, the RRT had accorded the appellants procedural fairness.

10 In their notice of appeal, the appellants contended that the FMC erred in not finding, and should have found, that the RRT:

‘had denied the appellants procedural fairness when making its decision based on country information which was critical to the ultimate findings that the appellant husband would not be imputed with a pro-LTTE opinion by not giving him the opportunity to respond to all the country information upon which the Tribunal relied to underpin these findings.’

11 In this Court the appellants were not represented by counsel and did not file any written submissions. They applied for an adjournment in order to obtain legal representation but that application was refused. At the hearing, the appellants were unable to explain why the decision of the FMC was attended by error.

12 I have carefully considered the detailed reasons for judgment of the FMC and am unable to find any error on its part. The procedural fairness ground of review now agitated by the appellants was a ground that was open to be raised, but was not raised, at the hearing before Marshall J. In my view the FMC has correctly applied Anshun estoppel in respect of the application for judicial review before it.

13 In any event, the procedural fairness ground is without merit. It is said to be based on the RRT failing to bring arguably adverse country information upon which it relied to the attention of the appellants. However, as was pointed out in the first respondent’s written submissions, the appellants would have been aware of the information as it was considered in the delegate’s decision and the substance of it had been raised at the hearing before the RRT. As the husband appellant’s appeal has failed, it follows that the appeal of each of the other appellants must also be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 9 February 2006

For the Appellants:	The Appellants appeared in person
Counsel for the Respondent:	H Riley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2006
Date of Judgment:	3 February 2006