FEDERAL COURT OF AUSTRALIA

MZXOW v Minister for Immigration and Citizenship

[2007] FCA 2115

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 1979 (Cth)

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Applicant M130/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 329

Applicant M130 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 825

Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387

MZXOW v Minister for Immigration and Citizenship [2007] FMCA 1191

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009

SBFF v Minister for Immigration and Citizenship (2007) 158 FCR 49

SZATR v Minister for Immigration and Multicultural Affairs [2006] FCA 986

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515

SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170

SYVB v Refugee Review Tribunal [2005] FCA 1093

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10

MZXOW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

VID 503 OF 2007

GORDON J

6 AUGUST 2007

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondents’ costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

            BACKGROUND

1                          This is an appeal against the order of a Federal Magistrate of 21 May 2007 dismissing an application to set aside orders made by him on 23 April 2007 in which he dismissed an application for judicial review on the basis of the appellant’s failure to attend the scheduled hearing.  The judicial review application related to a decision of the Refugee Review Tribunal (“the Tribunal”) of 29 May 2002.  The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) to refuse to grant the appellant a protection visa under s 36 of the Migration Act 1958 (Cth) (“the Migration Act”).

2                          The appellant is a citizen of Sri Lanka and first entered Australia on 1 November 2000.  On 23 November 2000, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) claiming to have a well-founded fear of political persecution resulting from his support for the United National Party (“the UNP”).  The appellant claimed to have attended several UNP rallies in the lead-up to the 1994 and 2000 elections and to have been a vocal supporter of the party.  His political activities were said to have attracted adverse attention from supporters of the People’s Alliance (“the PA”), a rival political party in Sri Lanka.  The appellant claimed to have suffered repeated threats and assaults by PA supporters and that local authorities refused to provide any form of protection. 

3                          The delegate rejected claims that the appellant had a well-founded fear of persecution and proceeded to refuse the protection visa on 29 November 2000.

4                          Upon application to the Tribunal on 20 December 2000, the appellant again claimed to have a well-founded fear of persecution as a result of his political activities.  The Tribunal’s decision recorded that it wrote to the appellant advising him that the Tribunal was unable to make a favourable decision on the basis of the information provided and invited him to attend the hearing on 8 May 2002.  Despite being invited to attend the Tribunal hearing, the appellant declined by letter dated 7 May 2002 in which he informed the Tribunal that he wished it to proceed without a hearing.  In its reasons of 27 May 2002, the Tribunal assessed the appellant’s claims and concluded that it could not be satisfied the appellant was a person to whom Australia had protection obligations.

5                          In reaching that conclusion, the Tribunal noted that the UNP had won the general elections in 2000 and the appellant’s support for this party was not a factor that would place him in any real danger.  Furthermore, in dismissing the application, the Tribunal did not accept that there was inadequate state protection available for the appellant.

6                          On 22 July 2002, the appellant lodged an application for an order nisi in the High Court of Australia.  On 7 February 2003, Hayne J remitted the application to the Federal Court of Australia.  Subsequently, the application was transferred to the Federal Magistrates Court of Australia. 

7                          On 19 February 2004, the then Chief Federal Magistrate dismissed the application pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the appellant’s non-attendance at the hearing.  On 18 March 2004, Merkel J dismissed an application for an extension of time for leave to appeal to the Full Federal Court from the orders of the Chief Federal Magistrate.

8                          On 24 May 2004, the Chief Federal Magistrate refused to set aside her orders of 19 February 2004 on the basis that the appellant did not have an arguable case.  The appellant then sought leave to appeal from those orders and, on 22 June 2004, Heerey J refused the application for leave to appeal.  On 27 April 2005, the High Court refused the appellant’s application for special leave to appeal.

9                          The appellant commenced this proceeding in the Federal Magistrates Court on 9 February 2007. 

            FEDERAL MAGISTRATES COURT

10                        In the application to the Federal Magistrates Court, the appellant sought again to challenge the decision of the Tribunal of 29 May 2002.  The appellant asserted that the Tribunal had not given proper consideration to all of his claims and argued that it had erred by forming the conclusion that he did not have a well founded fear of persecution as a result of his support for the UNP.

11                        The appellant did not attend the initial hearing on 23 April 2007.  The Federal Magistrate proceeded to dismiss the matter pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth). 

12                        Subsequently, the appellant made submissions seeking to have the previous orders of the Federal Magistrate set aside, claiming that he did in fact attend the court on the day of his hearing but that he was unable to locate the court room.  Further, the appellant submitted that despite his claims being previously rejected by both the Federal Magistrates Court and by two judges of this Court, there had been significant changes to the political climate in Sri Lanka that warranted a reconsideration of his claims.

13                        In considering the application for reinstatement, the Federal Magistrate noted the appellant’s extensive history of judicial review stating:

“Whether or not he has shown an adequate explanation, given that this is not the first time that he has failed to appear in proceedings, is not a question that I need focus upon as it appears to me that his application must inevitably fail on the basis that he does not have an arguable case in any event.”

14                        The Federal Magistrate continued by noting that the claims before him were almost identical to claims that had been the subject of previous consideration by the Tribunal and, in particular, by Heerey J in this Court on 22 June 2004.  In making these findings, the Federal Magistrate stated:

“In these circumstances it appears clear that the [appellant’s] case has been considered not only by the Tribunal but the nature of the case considered in previous proceedings.  The [appellant] is therefore estopped by way of res judicata or issue estoppel from bringing further proceedings with respect to this issue relating to the decision on (sic) the Tribunal.”

15                        His Honour concluded that the appellant had no arguable case and was prevented from bringing his claim pursuant to the doctrines of res judicata and issue estoppel.  The application for reinstatement was refused. 

            APPEAL TO THIS COURT

16                        The First Respondent characterised the Federal Magistrate’s decision as interlocutory and submitted that the appeal should be dismissed because leave to appeal had not been sought under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  It was further submitted that any application for leave would now be incompetent because of the appellant’s failure to comply with the time limits for bringing such an application:  O 52 r 5 of the Federal Court Rules 1979 (Cth). Irrespective of the answer to those questions, the history of this proceeding means that the substantive grounds of appeal must be resolved against the appellant.  It is to those matters that I now turn. 

17                        The notice of appeal filed in this court on 7 June 2007 raised two grounds of appeal.  First, the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction.  Secondly, the decision of the Tribunal involved a denial of procedural fairness and natural justice.  In relation to the second ground, the appellant asserted that:

“The tribunal has not given proper consideration to all [his] claims and therefore its conclusion that [he did] not have a well founded fear of persecution by PA supporters for reasons of [his] support of the UNP [was] wrong.”

The decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction

18                        By the institution of these proceedings, the appellant sought a further review of the same Tribunal decision that was considered by Heerey J on 22 June 2004:  see Applicant M130 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 825.  In that decision, his Honour stated at [15]:

“On the present application, the applicant submitted some detailed written submissions in support of his general contention that his case had “not been looked at properly”.  These submissions however only amounted to a repetition of his claims of persecution as a supporter of the UNP.  They also referred to present violence in Sri Lanka and in particular an incident where two Buddhist monks who were members of the Sri Lankan parliament were assaulted and beaten up by opposition PA supporters.” 

19                        That Tribunal decision has, in fact, been the subject of judicial review in the Federal Magistrates Court on two occasions (Chief Federal Magistrate Bryant on 24 May 2004 and Riethmuller FM in the current appeal) and in the Federal Court on two previous occasions (Merkel J on 18 March 2004 and Heerey J on 22 June 2004).  On each occasion, no appellable error was identified. 

20                        While the appellant asserted that the political climate in Sri Lanka had become more unstable, it is apparent that the current proceeding does not raise any issue that was not addressed in the earlier Federal Court proceedings by Heerey J.  Whether the Federal Magistrate was right to conclude that the appellant was prevented from bringing the claim pursuant to the doctrines of res judicata and further or alternatively, issue estoppel may be put to one side:  cf Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 at [39] and MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387 (“MZWHU”) and the authorities cited.  On any view, the commencement of this proceeding by the appellant was and remains an abuse of process.  The proceeding was doomed to fail.  The appellant has not raised any matter which would permit him to reagitate issues already considered and determined against him by the Tribunal, the Federal Magistrates Court and the Federal Court: for example, see SBFF v Minister for Immigration and Citizenship (2007) 158 FCR 49 at [23]; MZWHU at [30] and [31]; SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170 at [22]-[29]; SZATR v Minister for Immigration and Multicultural Affairs [2006] FCA 986 at [16]-[18]; SYVB v Refugee Review Tribunal [2005] FCA 1093 at [16] and by the Full Court in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 323 (per Carr and Sundberg JJ) and 346-347 (per Kiefel J). 

21                        In fact, what the appellant sought was merits review of the Tribunal’s fact finding function.  That is not the role of this Court:  see Part 8 of the Migration Act.  In this context, it must be recalled that the Federal Magistrates Court and the Federal Court have, in the past, determined that the Tribunal gave full consideration to the claims before it, and based on relevant country information for Sri Lanka, formed conclusions that were reasonably open to it: Applicant M130/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 329 at [13] per Bryant CFM; Applicant M130 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 825 per Heerey J; and the decision from which the appellant now appeals, MZXOW v Minister for Immigration and Citizenship [2007] FMCA 1191 per Riethmuller FM.

22                        This ground of appeal should be dismissed.

The decision was a denial of procedural fairness and natural justice.

23                        The appellant submitted that:

“The tribunal [had] not given proper consideration to all [his] claims and therefore its conclusion that [he did] not have a well founded fear of persecution by PA supporters for reasons of [his] support of the UNP [was] wrong.”

24                        Section 422B of the Migration Act provides that Div 4 of Pt 7 of that Act is taken to be an exhaustive statement of the requirements of natural justice.  Section 422B took effect on 3 July 2002:  see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).  However, s 422B is relevant to all applications to the Tribunal whether made before or after 3 July 2002 by Item 7(5) of Sch 1 of the 2002 Act.  As a result of this amendment, the provisions in Div 4 of Pt 7 “provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule”:  Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66].  The same point was made in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 by Hayne J at [206]-[209].  At para [208] his Honour observed:

“Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point.  The Act prescribes what is to be done in every case.”

25                        In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (quoted and approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515) a Full Court of the Federal Court said (at 590-1) that:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.   That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

See also Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 para [42] per Allsop J (with whom Spender J agreed).

26                        No error was identified in the reasons for decision of the Federal Magistrate.  That is not surprising.  There is nothing to suggest that there was a denial of procedural fairness or natural justice before the Tribunal.  In fact, as noted earlier, the decision of the Tribunal records that it wrote to the appellant advising him that the Tribunal was unable to make a favourable decision on the basis of the information provided and invited him to attend the hearing on 8 May 2000 and he not only declined to do so but informed the Tribunal that he wished it to proceed without a hearing. 

27                        This ground of appeal should also be dismissed.

Other matters

28                        The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate.  I cannot identify an appellable error.  In my opinion, an appeal would have no prospects of success.

ORDERS

29                        For those reasons, the appeal should be dismissed and the appellant should pay the respondents’ costs.

Associate:

Dated:         6 August 2007