MZWGJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT INTRODUCTION 1 The appellants appeal from a decision of the Federal Magistrates' Court. O'Dwyer FM dismissed their application to review the decision of the Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse to grant them protection visas. (Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Black CJ directed that the appeal be heard by a single judge of this Court.) 2 The first and second appellants are husband and wife respectively. 3 The grounds of appeal are as follows: "1. His Honour erred in law in that his discretion miscarried when he refused to extend the time within which the appellants could apply to review the decision of the Refugee Review Tribunal. 2. His Honour erred in law in misapplying the principles laid down in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 to this particular case. 3. His Honour erred in law in failing to find that the Tribunal failed to consider an integer of the appellants' claim, namely that they feared persecution because of political opinions imputed to them. The political opinions imputed to them by the security forces were that they were supporters of the Tamil Tigers. 4. His Honour erred in finding that it was open to the Tribunal to find that the appellants were not credible witnesses." GROUND 1 4 The Tribunal made its decision on 27 March 1997. The application for review was not filed in the Magistrates' Court until 2004. O'Dwyer FM said at [3]-[4] of his reasons: "One explanation for the delay is that the [appellants] became parties to a class action in the High Court [ie the class action commonly known as the Muin class action]. I can understand, and perhaps may have been persuaded that an involvement in an action of that nature and at that level, could amount to a reasonable explanation of why other action may not have been taken by the [appellants] to pursue their rights and try to redress the wrong they believe has been done to them. The period in which an application for review could be lodged at the time that the Tribunal's decision was given, was 28 days. The [appellants] joined the class action in Muin, I am told, on 16 July 1999. I questioned the [appellants] as to what happened between 27 March 1997 and their joining the class action in July 1999. The response, in effect, was that their interests were in the hands of their legal representatives at the time. They were unable to provide me with any satisfactory explanation for the delay, which was in excess of two years, between the Tribunal's decision and joining the class action. The burden falls on them, in these circumstances, where they ask for an extension of time, to persuade me that there was good reason for the delay that would warrant me exercising my discretion to allow them to issue the proceedings out of time. As I said, I may have been persuaded by their involvement in the Muin case … but there is no satisfactory explanation as to why they did not pursue their rights at law immediately following the Tribunal's decision, and further, there is no explanation of why there is that significant gap of some two years in which nothing was done before they became parties to the class action. In those circumstances, I am not prepared to grant an extension of time and the application issued on 10 March 2004 is therefore barred." 5 As noted by O'Dwyer FM, the explanation for the delay between the Tribunal's decision and the date on which the appellants joined the Muin class action was to the effect that the appellants' "interests were in the hands of their legal representatives at the time". The appellants complain that the learned magistrate failed to investigate that matter which they had squarely raised before him. They sought leave to file an affidavit sworn on 20 May 2005 with a view to explaining the delay. For reasons I need not go into here, I refused to grant leave. Leaving aside that affidavit, I see no reason why I should overturn the learned magistrate's exercise of his discretion to refuse the extension of time. The passage set out at [4] discloses no error on the learned magistrate's part. GROUND 2 6 In Muin v Refugee Review Tribunal (2002) 190 ALR 601, the High Court held that the appellants had not been accorded procedural fairness because they had not been afforded the opportunity to comment on country information that was before the Tribunal when it made its decisions in respect of them. In disposing of the class action, the Court ordered each member to file in that Court an application for an order nisi in relation to his or her respective Tribunal decision. The first appellant did so and that application was remitted to this Court and then transferred to the Magistrates Court - where McInnis FM refused it on 18 March 2004. 7 Before O'Dwyer FM, the Minister contended, on the basis of the first appellant's earlier unsuccessful application for an order nisi, that the principles of estoppel in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied to the instant proceeding. His Honour said at [5] of his reasons: "I am satisfied that those principles do apply and that there were earlier opportunities offered, or available, to the [appellants] whereby they could have pursued, ventilated or argued the matters they presently hope to argue before this court. A failure on their part to utilise that earlier opportunity, in my view, reasonably precludes them from now attempting to do so. I am satisfied that the nature of the earlier proceedings are such that it was reasonable that all of the matters that should have been canvassed, be canvassed on those occasions and it would have been reasonable for them to do so then." 8 By their written submissions, the appellants contend that O'Dwyer FM misapplied Anshun for the following reasons: (a) The second appellant was not a party to McInnis FM's decision. (b) The appellants were unrepresented before both McInnis FM and O'Dwyer FM. (c) The first appellant "did not have the running" of the hearing before McInnis FM and "simply followed the lines of argument laid down by the other applicants" in that hearing. (On the relevant day, McInnis FM heard together a number of applications for orders nisi emanating from the Muin class action.) (d) "The issue [before McInnis FM] was a narrow one - namely, whether the applicants [before him] had been accorded procedural fairness in being able to comment on country information that was before the Tribunal when it made its decision." (e) The Minister had not raised the relevant delay at the hearing before McInnis FM and should have been estopped from doing so at the hearing before O'Dwyer FM. (f) "The gravamen of the appellants' claim at the … hearing [before O'Dwyer FM] was that they feared persecution at the hands of the Sri Lankan security forces because of political opinions imputed to them because of the first appellant's brother's association with a number of Tamils suspected of being terrorists." (g) "Given the way the … hearing [before McInnis FM] was conducted, it was neither reasonable nor practicable for the appellants to seek to amend the grounds of review to include [the] claim" at (f). 9 In my view, O'Dwyer FM did not misapply Anshun. Notwithstanding what is set out at , (d), (f) and (g) the first appellant could and should have put all of his contentions in relation to the Tribunal's decision to McInnis FM - for example, by filing an amended application for an order nisi. This ground of appeal assumes that other parties to the hearing before McInnis FM in a similar position to the first appellant also failed to put any contentions in relation to their respective Tribunal decisions other than that described at . Even if that assumption is correct in relation to that particular hearing, the Minister's written submissions say that "many other applicants (including unrepresented applicants) in remitted Muin proceedings" did file amended applications. Counsel for the appellants did not controvert this. 10 As to , the first appellant's application for a protection visa (the visa application) names the second appellant as a member of his family unit. Whether she can lawfully remain in Australia depends on the success or failure of any proceedings that seek to challenge the basis on which the visa application was refused. At least for the purposes of applying Anshun, whether she is named as a party to such proceedings is neither here nor there. 11 As to , the lack of representation cannot by itself amount to a special circumstance that would warrant a court declining to apply Anshun. 12 As to , this point was not mentioned by the appellants' counsel or addressed by the respondent's. 13 As appears from the balance of these reasons, the appeal would have to be dismissed even if, contrary to my view, the learned magistrate erred in his application of Anshun to the facts of the case. GROUND 3 14 This ground of appeal must fail for two reasons. First, the Tribunal did not fail to consider the stated integer of the appellants' claim. It said: "The [appellants], as Sinhalese, are part of the majority which is in command of the police and security forces and who are not usually suspected of having Tamil Tiger sympathies. Their claims are inconsistent with generally known information on the attitude of the authorities to the Sinhalese community and in considering them the Tribunal has had particular regard to [their] credibility." Secondly, the alleged failure was not raised before O'Dwyer FM. GROUND 4 15 O'Dwyer FM said at [7]-[8] of his reasons: "… it is apparent from a reading of the Tribunal's decision and the contentions of fact and law submitted by the [appellants], and the amended application filed by the [appellants], that there is no basis for the assertion by them, that the Tribunal had erred. It is clear from the decision that the findings of fact made by the Tribunal were open to it based upon the evidence before the Tribunal and that there is probative logic in the Tribunal's reasoning. In my view, the [appellants] wish to re-agitate the facts and circumstances of their claims and seek from this court, in effect, a merits review of the earlier Tribunal decision. That, as a matter of law, would be an impermissible course of action by this court as it does not have jurisdiction to determine a merits review." 16 This ground of appeal must fail. By their written submissions, the appellants say that there was "no evidentiary basis" for the Tribunal's finding that they lacked credibility. On no reading of the Tribunal's reasons can that contention be sustained. This is notwithstanding the appellants' attempts to cast doubt on evidence before the Tribunal that had been obtained from their relatives in Sri Lanka. Indeed, the Tribunal was emphatic in finding that the appellants lacked credibility. It said it had formed "a positive state of disbelief" that: · the second appellant was once pregnant as she had claimed; · she had suffered a miscarriage after being assaulted by members of the Sri Lankan security forces; · "if in fact the [appellants] were being sought by the police on suspicion of being [Tamil Tiger] supporters that they would have asked their elderly grandmother to request the police to provide some documentary evidence of this"; and · "having regard to [the appellants'] correspondence [with the grandmother, their] overall claims that they are being sought by the security forces are credible". Issue was also taken with the third point on the basis that the appellants had claimed they were sought by the security forces rather than the police. Such an error - if it can be called that - is hardly a basis on which the appeal can be upheld: I refer to what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 about the manner in which courts should approach the reasons of administrative decision‑makers such as the Tribunal. CONCLUSION 17 For the appeal to succeed, each of the four grounds needed to be made out: the aspect of the learned magistrate's decision that each addresses is by itself capable of supporting the same. Therefore, the appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.