FEDERAL COURT OF AUSTRALIA

MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507

CORRIGENDUM

MZXEF, MZXEG AND MZXEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 150 OF 2006

KENNY J

8 MAY 2006 (CORRIGENDUM 2 JUNE 2006)

MELBOURNE

CORRIGENDUM

1.                  In paragraph [19] of the Reasons for Judgment delete the words “with costs”.

Associate:

Dated:             

FEDERAL COURT OF AUSTRALIA

MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507

MIGRATION – res judicata – abuse of process

Migration Act 1958, s 475A

Judiciary Act 1903, s 39B

Federal Court of Australia Act 1976 (Cth), s 27

Federal Magistrates Court Rules 2001, r 13.10(a) and (c)

M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1289 discussed

M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 discussed

MZXEF v Minister for Immigration [2006] FMCA 187 referred to

MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 referred to

Re Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 referred to

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

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to

SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 cited

NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 cited

MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 cited

MZXEF, MZXEF AND MZXEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 150 OF 2006

KENNY J

8 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

REASONS FOR JUDGMENT

1                     This is an appeal from orders of a Federal Magistrate made on 31 January 2006 granting an application for summary dismissal made by the first respondent pursuant to rule 13.10(a) or rule 13.10(c) of the Federal Magistrates Court Rules 2001 (“the Rules”).

2                     The appellants, a mother and her two daughters, are citizens of Sri Lanka.  The history of their claim bears reciting.  The appellants arrived in Australia on 20 May 2000 and lodged an application for protection visas on 29 June 2000.  A delegate of the first respondent refused their application and, on 31 August 2000, they applied for review of that decision.  On 15 February 2002 the Refugee Review Tribunal (“RRT”) handed down a decision affirming the delegate’s decision not to grant protection visas.

3                     On 14 March 2002, the appellants lodged an application for an order nisi in the High Court.  The draft order nisi, which formed part of the appellants’ application in the High Court, referred to a failure to accord the appellants natural justice and included, by way of particulars, allegations that the first appellant was medically unfit to attend the hearing and the RRT had disregarded medical evidence. 

4                     The matter was remitted to the Federal Court and heard as proceeding VID 676 of 2002.  Following a direction by a Registrar of the Court, on 29 November 2002 the appellants filed an amended application under s 475A of the Migration Act 1958 (“the Act”) and s 39B of the Judiciary Act 1903.   That application, which was heard in the first instance by Sundberg J, alleged that the RRT fell into jurisdictional error by considering out-of-date country information.  The appellants’ written contentions of fact and law repeated this claim.  By a decision delivered 12 November 2003, Sundberg J dismissed the application for review.   His Honour said, in M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1289, at [13] and [16]:

“As can be seen, when the Tribunal was considering the applicant's claims as to what happened to her in 1994 and thereafter, it considered information contemporaneous with the times.  It would have been irrelevant to consider current information about Sri Lanka in assessing the state of the country after the events were said to have occurred.  When it was considering the real chance of persecution on return, it had regard to current information about the country.

…

It is to be remembered that the weight to be attributed to country information is a matter for the Tribunal, not for the Court.”

5                     The appellants appealed to a Full Court of this Court.  The Full Court said, in M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127, at [10]-[11], as follows:

“In a notice of appeal filed on 1 December 2003, the appellant effectively repeated the ground raised before the primary judge.  That is, it was alleged that the Tribunal fell into jurisdictional error by considering dated and not recent country information and the primary judge erred in not concluding that the Tribunal had fallen into jurisdictional error.

For the reasons given by the primary judge, this contention is without substance.”

6                     The Full Court also discussed the appellants’ additional submissions, which sought to raise the ‘medically unfit’ ground mentioned in the draft order nisi filed in the High Court.  The Court said, at [12]-[19]:

“In written submissions, the [first] appellant raised a number of additional issues.  They included that she had been denied procedural fairness because she had been required to attend the hearing before the Tribunal at a time when she was medically unfit.  The appellant also contended, in effect, that the Tribunal failed to take into account her mental state when assessing her evidence and, in particular, when considering the significance of her inability to name the Tamil boarders she claimed to have taken in during 1999.

It is apparent from the Tribunal's reasons that the hearing was delayed for three months at the appellant’s request because of a psychologist’s report concerning the mental health of the appellant. That report recommended that the appellant should receive treatment for her condition in the interim.  After the three months had passed, the Tribunal asked the appellant to attend a hearing on 25 May 2001 but, at the appellant's request (made on 24 May 2001) delayed that hearing until 31 May 2001.  The Tribunal refused to delay the hearing for a longer period.  It did so on the ground that the psychologist, although stating that the appellant still suffered from the same condition, reported that the appellant had not sought the recommended treatment.  The appellant attended the delayed hearing with her legal representative.

The appellant's amended application and written submissions before the primary Judge were prepared by counsel. That application and those submissions appear to have abandoned a complaint made in the draft order nisi that the appellant was denied procedural fairness (and that the Tribunal failed to follow procedures required by [the Act]and misconceived its duty) because the hearing before the Tribunal took place when she was suffering from a mental disability.  It may well be that the matter was not pursued in either the application or submissions because those advising the appellant considered a denial of procedural fairness was not a ground available under the then legislative regime.

The allegation of denial of procedural fairness is not raised in the notice of appeal.  However it is relatively clear the notice was prepared by the appellant without legal assistance.

A full investigation of the consequences of any mental illness the appellant might have suffered at the time of the hearings before the Tribunal, would almost certainly have involved evidence being led before the primary judge. It was not.”

7                     The Full Court continued, at [17], that:

“The appellant made no application to this Court for leave to adduce further evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).  However, we have independently considered whether, had such an application made, there would have been any basis for granting leave; cf CDJ v VAJ(1998) 197 CLR 172. To that end, we have read the transcript of the hearing before the Tribunal. …”

After considering the transcript of the hearing before the RRT, the Court concluded, at [20]:

“What emerges from these extracts is this.  The appellant was then legally represented. The Tribunal was concerned to ensure that the appellant was able to answer questions asked of her.  The appellant declined an offer by the Tribunal to undergo psychiatric assessment.  The appellant indicated to the Tribunal she was prepared to proceed and her solicitor confirmed that was so.  In our opinion, no purpose would be served by allowing the appellant to adduce further evidence in this appeal concerning her mental state at the time of the hearing before the Tribunal.”

8                     The Full Court dismissed the appeal on 14 May 2004. In considering whether leave (if sought) would be granted to allow the appellants to adduce further evidence concerning the ‘medically unfit’ ground, their Honours held (at [17]-[20]) that, in light of the RRT’s efforts to ensure that the first appellant was able to answer the questions asked of her, no such leave would be granted.

9                     On 26 May 2005, the High Court refused an application for special leave from the Full Court’s judgment.  I note that in the appellants’ proposed “Amended Notice of Appeal” and “Summary of Argument”, both apparently filed in the High Court, the appellants also submitted that there was jurisdictional error by the RRT because:

            (a)        the RRT had denied the first appellant procedural fairness because she was medically unfit at the time of the RRT hearing; and therefore the RRT had contravened s 425 of the Act; and

            (b)        the RRT had relied on “old [country] information, which was not relevant to the present situation in Sri Lanka.”

10                  On 14 November 2005, the appellants filed a fresh review application in the Federal Magistrates Court seeking to set aside the RRT’s decision of 21 January 2002.  Before the Federal Magistrate, the appellants again argued that the RRT had erred by considering out-of-date country information and that there had been a denial of procedural fairness because the first appellant was medically unfit to attend the hearing before the RRT.  The first respondent sought the summary dismissal of this application pursuant to rule 13.10(a) or rule 13.10(c) of the Rules of the Federal Magistrates Court.

11                  The learned Federal Magistrate found (MZXEF v Minister for Immigration [2006] FMCA 187 at [14]):

“[T]here is little doubt that in this case the issues now sought to be agitated … are substantially the same as the issues which had been initially before the primary judge in the first application and in any event, which had been considered by the Full Court of the Federal Court on appeal from that decision.”

Accordingly, his Honour found that the doctrine of res judicata applied and that the review application should be summarily dismissed.  The Federal Magistrate held, in the alternative, that the application constituted an abuse of process and could also be dismissed on that basis.

12                  The notice of appeal was broad and unparticularised.  It was, however, accompanied by an affidavit sworn by the first appellant on 17 February 2006.  The principal grounds of appeal raised by the appellants appear in this affidavit and in the appellants’ written submissions filed on 25 April 2006.  These grounds were: (1) that the first appellant was medically unfit to give evidence in support of her application before the RRT and was therefore denied procedural fairness and her rights under s 425 of the Act; and (2) that the RRT failed to consider up-to-date country information. 

13                  On the hearing of the appeal, the first appellant reiterated both grounds and gave the Court copies of a document containing recent information on the situation in Sri Lanka.

14                  In written submissions, the first respondent submitted that the appellants required leave to file and serve the affidavit of 17 February 2006 and that such leave should not be granted.  It is, however, unnecessary to consider the question of leave, which was not formally sought by the appellants in any event.  At the hearing the first appellant said that the affidavit was not intended to raise any matter that had not been before the Federal Magistrate.  In substance, the affidavit provided ‘particulars’ of the notice of appeal that was filed at the same time.  Further, the terms of the affidavit are the same as part of the appellants’ written submissions.

CONSIDERATION

15                  This is the second occasion in which the appellants have instituted proceedings for the judicial review of the RRT’s decision in January 2002.  The grounds or proposed grounds were (1) the RRT’s reliance on out-of-date country information and (2) save before Sundberg J, the first appellant’s medical condition at the time of the hearing.  At first instance and on appeal, the appellants were unsuccessful.  The RRT’s reliance on country information was the subject of Sundberg J’s and the Full Court’s consideration.  The appellants seek to raise again the very same ground.  I accept the first respondent’s submission that there is no error shown in his Honour’s conclusion that res judicata applied to preclude the appellants from pursuing a second judicial review application on this ground.  Res judicata can operate as a bar to a judicial review application in these circumstances: see MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 (“MZWHW”) at [11] referring to Re Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 (“Wong”) at [71].

16                  The issue concerning the first appellant’s medical condition formed part of the appellants’ application in the High Court and a ground, or proposed ground, of appeal in the Full Court.  The Full Court gave detailed consideration to the ‘medically unfit’ ground in determining whether, if an application to adduce further evidence were made, there would be any basis for the grant of leave.  In substance, the Court held that there was no basis for the grant because the proposed ground was untenable in light of what had occurred at the RRT hearing.  Even if this were insufficient to attract res judicata because directed to a different issue (namely, whether there was any basis to grant leave to adduce further evidence) from that which arises here, the history of the various proceedings instituted by the appellants discloses that his Honour correctly held the proceeding in the Federal Magistrates Court constituted an abuse of process.   This is because, to the extent the appellants relied on the ‘medically unfit’ ground, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding.  Plainly enough, the ‘medically unfit’ ground might have been brought forward for Sundberg J’s consideration.  Nothing has been established that would attract the discretion that forms part of the Anshun estoppel doctrine: see generally Wong at [49], [61]-[64], [149]. 

17                  As the Federal Magistrate noted, the relevant standard for assessing an application for summary dismissal is well established: see, e.g., in Dey v Victorian Railways Commissioners (1949) 78 CLR 62.   Although it must be very clear that summary dismissal is appropriate, no error is shown in his Honour’s decision that this standard was met in this case.

18                  The Federal Magistrate’s decision was, so it seems to me, a final decision: see MZWHW at [6]; also SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [8]-[11]; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29]; and MZWZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1475 at [11].  Accordingly, the appellant did not require leave to appeal.

19                  For the foregoing reasons, I would dismiss the appeal with costs.

Associate:

Dated:                          8 May 2006