Applicants M141 of 2004 v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Hartnett FM made on 24 January 2006 dismissing the appellants' application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge. On 19 March 2002 a delegate of the first respondent refused to grant a protection (class XA) visa to the appellants. The Tribunal affirmed the decision of the delegate on 27 March 2003. 2 An application seeking an order to review the decision of the Tribunal was filed in the Federal Magistrates Court on 23 May 2003. Minutes seeking dismissal of the application by consent were filed by the appellants' former solicitors. The application was dismissed by consent on 3 June 2004. The appellants contend those orders were filed by their former solicitors without their authority. The appellants made an application in the High Court for orders nisi for writs of certiorari, mandamus and prohibition and a declaration in relation to the Tribunal's decision. That application was remitted to the Federal Magistrates Court and was heard on 24 January 2006. 3 The appellants, a father and mother and their children, are citizens of Pakistan. No specific claims were made on behalf of the mother and children, who rely on membership of the father's family in their applications. For convenience the father will be referred to as "the appellant". The essence of the appellant's claim is that he cannot return to Pakistan for fear of being persecuted by local Muslims who do not accept Muhajurs (the term used to describe people who migrated from India in 1947 at the time of partition). The Tribunal did not consider the appellant's evidence about his fear of persecution to be credible, and concluded that the chance of his coming to serious harm on his return to Pakistan was remote. Consequently the Tribunal found that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention. 4 In the Federal Magistrates Court the appellant deposed that the consent orders made on 3 June 2004 in the previous proceedings before that Court were made by his solicitors without authority. His former solicitor deposed that the appellant instructed him to consent to the orders dismissing the proceedings. The Magistrate was not required to determine this factual dispute as the appellant did not take steps to have the orders of 3 June 2004 set aside. The Magistrate held that the dismissal of the earlier application precluded the appellant from bringing fresh proceedings to challenge the Tribunal's decision. The cause of action in the proceeding was found to be the same in substance as that litigated in the earlier proceeding. No new matter was agitated by the appellant. 5 Notwithstanding the foregoing, the Magistrate went on to consider the merits of the case for review. This she did in the course of considering whether an extension of time should be granted to the appellant in relation to his application for certiorari and mandamus. Her Honour refused an extension on the ground, amongst others, that the applicant had no prospect of success. She found that each of the Tribunal's findings was open to it on the evidence, observing that it was the Tribunal's role (and not the Court's) to assess the credibility of an applicant and his or her claims. The Magistrate set out relevant parts of the Tribunal's reasons in relation to the appellant's credibility. It found that what he said about the grounds for his fear was "not credible", parts of his evidence were "far‑fetched and most improbable", "not at all convincing" and "very unconvincing". It went on to say that aspects of a report provided by the appellant led the Tribunal to conclude that "they have been concocted for the purpose of advancing" his claim. Other parts of his evidence were "implausible" and "completely implausible". In each instance the Tribunal gave its reasons for coming to these conclusions. 6 The Tribunal concluded its reasons as follows: "I do not consider that the evidence indicates that the applicant suffered persecution because he was Muhajur in the past. I do not consider that there is a real chance that he would experience serious harm for this reason if he were to return to Pakistan. He has family members who still have farming property and he has a long and apparently stable employment record with a government department. As well, he has a qualification in accountancy. I have no doubt that the applicant and his family will face difficulties in settling back into life in Pakistan and there may be periods of hardship as the applicant seeks employment and I have accepted that he is Muhajur but I do not consider that what he will face in this regard is because he is Muhajur. The essential and significant reason for the difficulties he may face in resettling in his country will concern practical matters resulting from having lived away for a number of years and having given up his employment." Having summarised the effect of this passage, the Magistrate concluded that there was nothing in the reasoning that was perverse or illogical. In this connection her Honour referred to what had been said by a Full Court in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25]‑[27] per Heerey, Sundberg and Crennan JJ. 7 The grounds of appeal before this Court are set out in a notice of appeal dated 15 February 2006. They allege jurisdictional error, failure to consider relevant material and denial of natural justice. No particulars are given. 8 The Magistrate's decision that the dismissal of the earlier application of 23 May 2003 precluded the appellant from bringing fresh proceedings to challenge the Tribunal's decision, on the ground that the cause of action was the same as that raised in the earlier proceeding is not affected by error. Her Honour referred to Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 where it was held that the fact that earlier litigation was concluded by consent orders does not preclude the operation of the principles of res judicata or issue estoppel. 9 As I have said, the Magistrate went on to consider the application for an extension of time in relation to certiorari and mandamus. Her Honour refused to grant an extension for two reasons: the delay in applying had not been satisfactorily explained, and the principal application for relief did not "have any prospect of success", the Tribunal's decision not being affected by jurisdictional error. The order that "the application be dismissed" is probably a dismissal of the application for review on the ground of res judicata or issue estoppel rather than a dismissal of the extension of time application. A fair reading of the whole of the Magistrate's reasons has led me to conclude that her Honour is to be taken to have meant that the application for review was dismissed because it was barred by the making of the consent order, and that if she was wrong about that, an extension of time should be refused because the principal application for relief had no prospect of success. Accordingly, if, contrary to my view, there was an error in the Magistrate's res judicata/issue estoppel holding, the principal application would still properly have been dismissed as a result of the refusal of an extension of time. It is true that the extension was required only for certiorari and mandamus, and not for prohibition or a declaration. But the effect of the authorities is that in the absence of a grant of certiorari to quash the Tribunal's decision, relief by way of prohibition, injunction or declaration will be refused. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants M31/2004 [2004] HCA Trans 318 per Hayne J and Plaintiff M99 of 2005 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 68 per Crennan J.