FEDERAL COURT OF AUSTRALIA

S124 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1417

MIGRATION – no point of principle

Migration Act 1958 (Cth)

S124 OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 831 OF 2004

MOORE J

3 NOVEMBER 2004

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application for an order nisi be dismissed.

2.                  The applicant pay the respondent's costs.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for constitutional writs in relation to a decision of the Refugee Review Tribunal ("the Tribunal") of 24 June 2002.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant the applicant a protection visa.  The application for constitutional writs (taking the form of an application for an order nisi) was filed in the High Court on 2 April 2004 and remitted to this Court by Gleeson CJ on 10 May 2004.  The applicant had earlier brought other proceedings in relation to the Tribunal's decision.  They will be mentioned below.

Background

2                     The applicant arrived in Australia on 10 February 2000 and lodged and application for a protection visa on 8 March 2000.  A delegate of the Minister refused that application on 14 April 2000.  On 8 May 2000, the applicant sought review of that decision.  On 24 June 2002 the Tribunal affirmed the decision of the delegate of the Minister.  The reasons for decision were handed down on 17 July 2002. 

3                     Before the present proceedings were commenced, the applicant had challenged the Tribunal's decision in other proceedings in this Court.  On 12 August 2002 the applicant filed an application for review of the Tribunal's decision in the Federal Court.  That application was, in terms, said to be made under s 39B of the Judiciary Act 1901 (Cth).  Those proceedings were transferred to the Federal Magistrates Court.  On 24 February 2003, Federal Magistrate Driver dismissed the application:  NARG v Minister for Immigration [2003] FMCA 49.  The applicant appealed against that decision.  On 10 April 2003 Conti J dismissed that appeal under O 52 r 38(1)(a) of the Federal Court Rules:  NARG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 343.  On 12 March 2004, Gummow and Callinan JJ refused special leave to appeal to the High Court:  NARG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 067.

The decision of the Tribunal

4                     The following is a summary of the applicant's claims for a protection visa taken from the Tribunal's reasons for decision.  The applicant is a national of Bangladesh.  In his application he claimed to have left Bangladesh to escape death at the hands of the Awami League ("AL").  He had been a youth leader of the Freedom Party ("FP") and was the target of the AL because of his 'zealous and laborious activities for Freedom Party.  I became their special target…  Gradually I had to turn into a political fugitive in my own soil'.

5                     The applicant feared persecution at the hands of the AL who governed the country at the time he departed the country.  Death warrants were issued against central leaders and some others from the FP causing him to feel insecure and finally to leave the country.  AL supporters had attacked and ransacked his home several times in retaliation for his successful work for the FP.  These attacks forced him into hiding and that the police did not protect him.

6                     He feared harm from a group of AL thugs who had attacked a meeting of FP members in September 1999 and who were determined to harm or kill him because he had been a witness to the attack and could provide the authorities with information that could lead to their arrest.

7                     The Tribunal found that the applicant's claims lacked credibility and was not satisfied that he faced persecution in Bangladesh.  The Tribunal rejected his claim to have arrived in Australia on a false passport.  The Tribunal found that the applicant was using a false name now to support his claims "and/or as part of a possible immigration scam". 

8                     Because the Tribunal rejected the applicant's claims regarding his passport, it was not satisfied that he had been in the situation he claimed to have been in, namely, that the authorities regarded him as suspect and that he would have been denied the necessary police clearance to gain a passport.  It found he had invented claims of having an adverse profile.

9                     The Tribunal was not satisfied the applicant was a member of the FP because of his difficulty in defining the party's policies and to distinguish it from other parties.  Because of the general lack of credibility in the applicant's evidence the Tribunal was persuaded that the letters from alleged FP leaders were fabrications. 

10                  The Tribunal was not satisfied that the incident involving the thugs had occurred.  Even if it had, the Tribunal was not satisfied that the applicant lacked the protection of the authorities in relation to any threatened harm. Relying on independent evidence, the Tribunal concluded that the Bangladeshi authorities were willing and capable of protecting the applicant.  Even if the applicant had been the activist he claimed to have been and based on independent evidence, the Tribunal was not satisfied that he faced persecution in Bangladesh under the previous AL government or would in the future under the Bangladesh National Party ("BNP").

11                  The Tribunal found the applicant had "painted a false picture" of the AL targeting the entire FP and had greatly exaggerated the AL's concern about the FP as a rival party.  The Tribunal took the view that a person of the applicant's claimed profile would have been of minimal concern to AL and consequently was not satisfied as to the credibility of the claims that the AL had attacked his house, driving him into hiding or that they intended to kill him. 

12                  Based on its findings above, the Tribunal was not satisfied that the applicant left Bangladesh out of fear of persecution by the then AL authorities over his claimed FP affiliation or for any other Convention reason.  Nor was the Tribunal satisfied that the applicant would face persecution on return to Bangladesh under the current BNP government, even if genuinely affiliated with the FP.

The decision of the Federal Magistrate

13                  The grounds in the application to the Federal Court filed on 12 August 2002 challenging the decision of the Tribunal, subsequently transferred to the Federal Magistrates Court, were as follows:

1.      The procedure that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observe. The tribunal ignored the merits of the claim under the Judiciary Act 1903 section 39B.

2.      The tribunal incorrectly portrayed the real picture of the freedom party and its link with the current coalition.  The tribunal did not provide an opportunity to the applicant to make comment on the informations which the tribunal relied to make its decision.

3.      The tribunal deprived the applicant to receiving natural justice.  The tribunal did not consider the document and evidence submitting by the applicant without any investigation.

14                  The Federal Magistrate summarised the applicant's claims at [3]:

…the applicant is a Bangladeshi national who sought a protection visa on the basis of asserted political persecution.  The applicant claimed that he would suffer persecution from the Awami League in Bangladesh as a member of the Freedom Party.  He submitted that he came to Australia on a false passport in order to escape that persecution.  He submitted letters to [the Tribunal] purporting to come from Freedom Party members to support his claims.

The Federal Magistrate noted the Tribunal had made adverse findings in relation to the applicant's claims.  In particular, the Tribunal had rejected the applicant's claim that he had travelled on a false passport and was a member of the FP.  The Tribunal had found that even if the applicant was a member of the FP, the applicant's fear of persecution was not well founded.  The Tribunal found that if the applicant had suffered harm, effective state protection was available.

15                  As the grounds quoted above at [13] indicate, the applicant's contentions before the Federal Magistrate were that the Tribunal had failed to observe procedures required by the Migration Act 1958 (Cth), the hearing before the Tribunal was procedurally unfair, the Tribunal had not dealt with the merits of his claims and rejected documents provided to it without investigation.  In additional submissions made to the Federal Magistrate, the applicant claimed that the Tribunal did not act in good faith, was biased and that there was a constructive failure on the part of the Tribunal to exercise its jurisdiction.  The applicant put into evidence before the Federal Magistrate transcript of the proceedings before the Tribunal. 

16                  The Federal Magistrate found that, on its face, the decision of the Tribunal did not contain anything indicating bias and that the Tribunal had considered the applicant's claims before it rejected them.  The Tribunal had raised with the applicant the issue of the validity of his passport and his FP membership and activities.  While it was not apparent from the reasons for decision whether the Tribunal had raised with the applicant the issue of the validity of the letters from the FP before making its decision, and even if the Tribunal had failed to raise this with the applicant, the applicant had suffered no disadvantage.  The Tribunal considered the applicant's position on the basis he had been a member of the FP and active in politics.  The Tribunal found any genuine fear the applicant might hold was not well founded on the basis of country information.  The Federal Magistrate considered this conclusion was reasonably open to the Tribunal on the information available. 

17                  His Honour was not satisfied that there was a constructive failure to exercise jurisdiction and considered there was no substance to the applicant's claim the Tribunal did not observe procedures required by law.  It was not apparent to the Federal Magistrate that the Tribunal had taken into account anything unknown to the applicant other than country information.  His Honour dismissed the application. 

The decision of Conti J

18                  Conti J dismissed the applicant's appeal against the decision of the Federal Magistrate under O 52 r 38(1)(a) on the basis that the applicant had not prosecuted the appeal with due diligence.  The notice of appeal had not disclosed on its face a viable ground for appeal and the applicant did not appear at the directions call over on 10 April 2004.

The application and its disposition

19                  The grounds on which the applicant seeks constitutional writs in the present application are as follows:

a)      The third respondent did not follow the proper procedure as required by the Migration Act 1958.  Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

b)      The third respondent's decision was affected by an 'error of law' and 'Jurisdictional error' and lack of procedural fairness.

c)      There was no evidence or other material to justify in making of the decision.

d)      The applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.

e)      There has been a constructive failure of jurisdiction by the first respondent's decision of 14 April 2000, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.

f)       There was a failure of the first respondent's agent to exercise his jurisdiction in the decision of 14 April 2000 because he did not reach a state of satisfaction bases (sic) upon a correct understanding of the law on which he acts.

g)      The decision of the first respondent's agent of 1 April 2000 was made in breach of the rules of natural justice.

20                  Counsel for the Minister submitted that the applicant was precluded from prosecuting the present application for two reasons.  Firstly, the principle of res judicata prevented a relitigation of the same issues and secondly, and in any event, the applicant was bound by an issue estoppel for essentially the same reasons.

21                  A comparison of the grounds raised in the application filed on 12 August 2002 (together with the additional grounds raised in the submissions made to the Federal Magistrate) and the application filed in the High Court on 2 April 2004, show that the present application raises the same issues (even though slightly differently expressed) that were the subject of a judicial determination by the Federal Magistrate, in so far as each application raised issues that might have led to an order in favour of the applicant.  In both applications, a claim was made that the Tribunal had not observed procedures that should have been followed, had denied the applicant opportunity to comment on material, had denied the applicant procedural fairness, had failed to consider material furnished by the applicant and had failed to further investigate the matter. 

22                  It appears to be relatively settled that both res judicata and issue estoppel can operate in this field of administrative law:  see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 and SZBJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 404.  In my view both operate to prevent the applicant seeking a further adjudication in this Court of the issues raised in the earlier proceedings.  In any event, Anshun estoppel would operate to prevent any issue not earlier raised, being raised in these proceedings, there are no special circumstances.

23                  The application should be dismissed with costs.

Associate:

Dated:              3 November 2004