FEDERAL COURT OF AUSTRALIA

VWBS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 464

MIGRATION – application for protection visa – lengthy delay in seeking judicial review not satisfactorily explained – application subject to Anshun estoppel and res judicata – no merit in grounds in support of application

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 417(1), 417(7), 425

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15]-[16] cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 referred to

VWBS and VWBT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V1171 of 2003

WEINBERG J

20 APRIL 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs of and incidental to the hearings on 18 February and 20 April 2004.

3.                  There be no order as to costs with regard to the hearing on 15 March 2004.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal’s decision is dated 17 October 2000, but the reasons were not published until 3 November 2000. 

2                     The applicants in this proceeding are husband and wife.  They are citizens of Sri Lanka and are of Tamil ethnicity.  They arrived in Australia on 17 October 1997.  On 29 September 1998, they lodged an application with the then Department of Immigration and Multicultural Affairs for a protection visa.  On 30 October 1998, that application was refused.

3                     On 2 December 1998 the applicants applied to the Tribunal for review of that decision.  For reasons that are not immediately apparent, it took almost two years before the Tribunal affirmed the primary decision. 

4                     It is important to note that the applicants did not immediately seek judicial review of the Tribunal’s decision in this Court.  They did, however, apply to the then Minister, Mr Ruddock, under s 417(1) of the Migration Act 1958 (Cth), seeking to have him substitute for the Tribunal’s decision a decision that was more favourable to them.  On 9 January 2001, the Minister declined to consider whether to exercise that power, as he was entitled to do under s 417(7). 

5                     The applicants subsequently joined what has come to be known as “the Muin and Lie class action” in the High Court:  see Muin v Refugee Review Tribunal (2002) 190 ALR 601.  On 26 May 2003, they filed an ex parte application for an order nisi in the High Court.  As with most such matters, that application was remitted to the Federal Court. 

6                     On 8 December 2003, Marshall J dismissed the application as disclosing no reasonable cause of action in response to a notice of motion filed on behalf of the respondent:  Applicants M156/2003 v Minister for Immigration & Multicultural & Indigenous Affairs.  It appears from his Honour’s reasons for judgment that he went further than merely refusing to grant the order nisi sought, a decision that would have been interlocutory, and would not have prevented the applicants from instituting fresh proceedings.  Rather, his Honour considered the merits of the claim as though an order nisi had been granted.  He concluded that the proceeding was so devoid of merit as to warrant summary dismissal. 

7                     On 30 December 2003, the applicants filed the present application pursuant to s 39B.  That application seeks writs of certiorari and mandamus, and an injunction restraining the respondent from giving effect to the Tribunal’s decision. 

8                     There are, in substance, three grounds in support of the application.  The applicants contend that the Tribunal fell into jurisdictional error in that:

“(a)     The Tribunal misinterpreted the convention and failed to undertake its mandated task of correctly applying the convention reasons on the evidence that the applicants were persecuted by the Sri Lankan Police, Armed forces and forces closer to the government with the tacit support of the government for being Tamils coupled with their identity as practising Christians.

(b)               The Tribunal failed to understand the deeper significance of the applicant’s claim.  The tribunal failed to discuss the relevant country information with the applicants and how that information likely to be the reason or the part of the reason for the refusal of the application.  Consequently, the tribunal failed to undertake its mandated task of correctly interpreting sections 36, 65, 42A of the Migration Act 1958.

(c)               The Tribunal has not complied with section 425(1) of the Migration Act 1958 in respect of the applicant wife.”

9                     It is conceded, on behalf of the respondent, that this Court has jurisdiction, pursuant to s 39B, to entertain this application.  There is no time bar, as such, to the relief sought although whether that relief should be granted is, of course, a matter of discretion. 

10                  The applicants are self-represented.  They have provided no explanation whatever for the delay of just over three years that occurred between the Tribunal’s decision and the filing of this application for review.  Their attempt to have the former Minister exercise his power under s 417(1) may go part of the way towards explaining that delay, as may their involvement in the Muin proceeding.  Even so, the observations of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15]-[16] must be borne in mind.  His Honour said:

“[15]      An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties.  That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.  Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.  In that respect, the present case, although important to the applicant, is not as important as many other cases.  Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

[16]         Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.  As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”.  The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.”  (footnotes omitted)

11                  In addition, the respondent points to the fact that some of the grounds raised in the present application are essentially the same as those upon which the applicants relied in the application for an order nisi before Marshall J.  The only ground that is new is ground (a).  That ground plainly involves matters that could have been raised before his Honour, and therefore is said to fall within what is generally described as the doctrine of Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  Grounds (b) and (c) were raised before Marshall J, and the respondent contends that they are subject to res judicata. 

12                  In substance, the applicants contend that if required to return to Sri Lanka, there is a real chance that they will be subjected to harassment of a kind that they claim to have experienced from 1983 onwards.  In that year, during communal disturbances, the applicants were forced to move from their home, which was looted, and destroyed.  They were “called names” and were subjected “to unpleasant remarks” by their neighbours who also sometimes demanded money.  If money was not provided, the applicants were “verbally abused”.

13                  The applicants also contend that they face persecution because their neighbours had previously accused them of harbouring Tamil Tigers in their home.  They say that they were subject to periodic raids by security forces who treated them “roughly and rudely because they were Tamils”.  They were never arrested or detained after these raids, but felt threatened by them.  It must be borne in mind, in that regard, that both applicants are quite elderly. 

14                  The applicants also raised with the Tribunal the fact that they were practising Christians.  The applicant husband claimed that he felt uncomfortable in attending Buddhist ceremonies.  However, he acknowledged at the hearing that he had not been prevented from practicing his Christian faith, and the Tribunal found that there was no real chance that they would be harmed in Sri Lanka by reason of their religion.

15                  The Tribunal accepted virtually all of what the applicants said about their past experiences in Sri Lanka.  However, it noted that the difficulties in 1983, at the time of the communal disturbances, went back a very long way and might not be a reliable guide as to how they would be treated if required to return to that country.

16                  The Tribunal also concluded that the verbal abuse and rough treatment to which the applicants had been subjected by their neighbours was not “of sufficient severity” to constitute persecution for the purposes of the Refugee Convention.  Moreover, it found that they could seek redress from the state should they experience similar treatment in the future.

17                  After considering the applicants’ claims “individually and cumulatively”, the Tribunal was not satisfied that they faced any real chance of persecution by reason of race, imputed political opinion or, as noted above, religion.

18                  One can only feel a great deal of sympathy for the position in which the applicants now find themselves.  They are elderly people, at least one of whom is in poor health.  They have been here now for seven years, and appear to have made a good life for themselves.  They have children in Australia.  They seem to have strong claims to remain in this country on humanitarian grounds.  That was not, however, the issue before the Tribunal, and it is not the issue before this Court. 

19                  The applicants have now had a number of opportunities to press their claims for a protection visa.  The Tribunal accorded them a full and fair hearing, and came to a decision that was plainly open on the material before it.  Marshall J dismissed their application for review of that decision as disclosing no reasonable cause of action.  The applicants have advanced essentially the same claims before me.  However, those claims do not improve with repetition.  In substance, much of what they seek involves merits review, a process that they were accorded by the Tribunal. 

20                  The Tribunal clearly applied the correct test for determining whether there was a real chance of persecution on Convention grounds.  The applicants are dissatisfied with its finding in that regard, but that is not a matter that can, of itself, demonstrate jurisdictional error.  The procedural fairness claim suffers from an absence of any evidence on the part of the applicants as to what, if anything, they would have done had the Tribunal indicated to them that it proposed to have regard to the country information in a manner that was adverse to their claims.  In other words, the applicants have not met the requirement, stipulated in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 that there be some form of practical injustice associated with what occurred.  Finally, the complaint regarding failure to comply with s 425 is completely without merit.  It is plain from a reading of the transcript of the Tribunal hearing that the applicant wife was present, and was made aware that she could have given evidence had she wished to do so. 

21                  I can discern no error in the Tribunal’s reasons for decision, still less any jurisdictional error.  Moreover, there would be serious difficulties with this application even if such error were apparent.  The lengthy delay in instituting this proceeding, which has not been satisfactorily explained, and the fact that there is a decision by Marshall J specifically rejecting at least two of the grounds now agitated, which arguably creates a res judicata, militates strongly against the grant of any relief. 

22                  It follows that the application must be dismissed.  In accordance with the normal rule costs must follow the event.  The applicants must pay the respondent’s costs of and incidental to the hearing before me today.  Those costs will include the costs of a hearing that took place on 18 February 2004.  There will, however, be no order as to the costs of a second hearing that took place on 15 March 2004.  That hearing was unable to be completed for reasons beyond the control of the parties. 

Associate:

Dated:              20 April 2004