FEDERAL COURT OF AUSTRALIA

MZXPP v Minister for Immigration & Citizenship

[2007] FCA 2116

Migration Act 1958 (Cth)

Migration Litigation Reform Act 2005 (Cth)  

Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542

Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1878

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114

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

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

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

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

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

SYVB v Refugee Review Tribunal [2005] FCA 1093

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

MZXPP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 589 OF 2007

GORDON J

7 AUGUST 2007

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to 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 an order of a Federal Magistrate dated 20 June 2007 in which he dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 October 1997.  The Tribunal had affirmed the decision of a delegate of the first respondent (“the delegate”) to refuse to grant the appellant a protection visa.  This appeal follows an extensive history of proceedings in the Federal Magistrates Court, this Court and the High Court.

2                          The appellant is a citizen of India of Sikh background who first entered Australia on 24 August 1995.  On 22 September 1995, the appellant lodged an application for a protection visa with the first respondent, claiming to have a well founded fear of persecution as a result of his association with the Sikh Student Federation (“the SSF”).  The application was refused by the first respondent on 20 May 1996 and the appellant subsequently applied for review of that decision with the Tribunal on 28 May 1996.

REFUGEE REVIEW TRIBUNAL

3                          Before the Tribunal, the appellant argued that he was entitled to refugee status, claiming to have been actively involved in the SSF including organising and participating in several rallies which, he asserts, made him a target of authorities who physically assaulted him and detained him without charge on a number of occasions.

4                          The Tribunal affirmed the decision of the delegate on 9 October 1997 not to grant the appellant a protection visa.  In making its findings, the Tribunal noted a number of inconsistencies in the appellant’s evidence and determined that the appellant could not be regarded as a credible witness.  Importantly, the Tribunal took note of documents that had been submitted by the appellant as warrants for his arrest in India and dismissed these documents as false, highlighting the ease with which fraudulent documents could be obtained in India.

5                          The Tribunal also found that simply being a member of the SSF would not result in a well-founded fear of persecution from authorities, as country information for India suggested that SSF was no longer a banned organisation.  The Tribunal supported these findings by highlighting that the appellant had seemingly been able to legally exit India on a valid passport, providing a clear indication that the appellant was not of interest to state authorities. 

PREVIOUS JUDICIAL REVIEW

6                          Following the Tribunal’s decision, on 31 July 1998 the appellant became a party to what is referred to as the Muin and Lie class action in the High Court:  see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.  This matter was later remitted to this Court and subsequently dismissed by Emmett J on 20 February 2004.

7                          On 30 March 2004, the appellant filed an independent application in the Federal Magistrates Court seeking review of the Tribunal’s decision.  In dismissing the application on 21 December 2005, McInnis FM approved the decision-making process of the Tribunal stating:

“… the tribunal appears to have properly analysed the claim as made by the Applicant and then in making adverse credibility findings reasonably open to it has drawn attention to what may be described as the inconsistent and unclear evidence of the Applicant. It was entitled to draw conclusions concerning the documents, and in particular the purported warrants which had been sent to the Tribunal before the hearing.”

8                          On 18 January 2006, the appellant appealed the decision of the Federal Magistrate.  Acting as a single judge in the appellate jurisdiction of this Court, Sundberg J considered and dismissed the appeal on 12 May 2006.  In doing so, his Honour concluded that the Tribunal had proceeded in a manner free of error and was entitled to draw the conclusions that it did, including the finding that the documents produced by the appellant were not genuine:  see Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542.

9                          Following the decision of Sundberg J, the appellant applied to the High Court for special leave to appeal.  The application for leave was refused on 5 October 2006.

FEDERAL MAGISTRATES COURT

10                        On 21 March 2007, the appellant again filed an application for review of the Tribunal’s decision in the Federal Magistrates Court.  In that application, the appellant asserted that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction.  In the particulars, the appellant stated:

“The tribunal referred to independent country information which indicated that fraudulent documents were easily obtained in India.  The tribunal then relied upon that independent evidence in concluding that the warrants submitted by me were not genuine.  

It is not clear whether or not this information was put to me during the course of the tribunal’s hearing.  In any event, particulars of that independent information were not provided to me in writing before the tribunal’s hearing, in accordance with s 424A(1) of the Migration Act.”

11                        The Federal Magistrate noted that the application of s 424A of the Migration Act 1958 (“the Migration Act”) was properly dealt with in the previous proceedings in both this Court and the Federal Magistrates Court: see paras [9]-[10].  In those earlier proceedings, it was established that there had been no breach of s 424A by the Tribunal:  see Applicant S1603 at [8].  The Federal Magistrate dealt with the issue in Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1878 at [14] as follows:

“It should also be noted that in this case the Applicant had sought to rely upon a breach of s 424A of the Migration Act.  That ground can be dealt with in brief terms on the basis that the section relied upon was not in fact operational on the day of the Tribunal decision.  Indeed it became operational on the days fixed by proclamation, which in relation to that section was 11 December 1998, which is more than a year after the Applicant’s application had been finalised before the Tribunal; hence there is no merit in that ground relied upon by the Applicant.”

12                        Aware that the application of s 424A of the Migration Act had already been the subject of judicial consideration, the Federal Magistrate went on and made final orders and dismissed the matter at [17] – [18] in the following terms:

“It is evident to me on the chronology that I have recited in this judgment that this is a matter which has clearly been heard and determined by the Court and the doctrine of res judicata applies.

I do not regard the Court as being competent or having power to hear and determine this second application which does no more than seek to make a further application in a matter already properly heard and determined by this Court.”

APPEAL TO THIS COURT

13                        On 3 July 2007, the appellant filed an appeal from the decision of the McInnis FM dated 20 June 2007.  The appellant’s grounds of appeal asserted the Federal Magistrate has committed an error of law, constituting jurisdictional error.  Under the heading ‘Particulars’ the appellant stated:

“The Court concludes that there has been no breach of procedural fairness or natural justice based upon the material before the court or that the tribunal has properly addressed the issues before it and clearly raised the issue of document fraud.”

ANALYSIS

14                        The appellant has not identified any error, jurisdictional or otherwise, in the decision of the Federal Magistrate. 

15                        As a preliminary matter, McInnis FM made a finding at para [7] that the application was incompetent because it had not been filed within the prescribed time limits:  see s 477 of the Migration Act and cl 42(a) of the transitional provisions in Pt 2 to Sch 1 of the Migration Litigation Reform Act 2005 (Cth) and Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114.  The Federal Magistrate declined to dismiss the application on that basis and instead proceeded to assess the matters that were raised by the appellant.  The two matters on the application before me appear to be repeated from earlier proceedings – the issue of an alleged breach of s 424A of the Migration Act and an allegation of a breach of procedural fairness or natural justice.  As set out earlier, both matters have already been considered and determined against him.

16                        Whether the Federal Magistrate was right to conclude that the appellant was prevented from raising these matters pursuant to the doctrine of res judicata 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.  It is the latest in the history of repeated litigation over a period of approximately
10 years during which the appellant has unsuccessfully sought to establish error in a decision of the delegate made on 9 October 1997.  The appellant did not raise 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). 

ORDERS

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

Associate:

Dated:         7 August 2007