MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs

THE APPELLANT'S CLAIMS 8 The principal claim made by the appellant before the Tribunal is that he had a well-founded fear of persecution due to his political opinion as a member and supporter of the Sri Lankan political party, United National Party ('UNP') and, due to his association with senior members of the UNP, he feared persecution from members and supporters of the main opposition party, People's Alliance ('PA'). He also claimed to fear persecution due to the Tamil ethnicity of his wife and as a member of the social group comprised of the entourage of the ruling elite, who are distinguished by the privileges they receive by their ethnic background and their religion.

THE SECOND TRIBUNAL DECISION 9 The Tribunal accepted that the appellant had assisted the UNP from 1990 up until 1994 with low level work by putting up posters and banners but did not accept that his activities, or his employment by a Government Minister as a catering chef at functions, gave him a political profile which put him at risk of harm from the PA supporters. The appellant referred to various specific incidents, some of which the Tribunal rejected as implausible or fabricated, and others which the Tribunal found were not politically motivated. The Tribunal concluded that the appellant was not at risk of future persecution for reasons of political opinion. 10 The Tribunal further rejected the appellant's claims that he had been persecuted by reason of his wife's claimed Tamil ethnicity or that there was a real chance of persecution for that reason. It further rejected the social group propounded and accordingly found that he had not been persecuted because he was a member of such a group. It found he was not at risk of future persecution for reasons thereof.

THE DECISION OF THE FEDERAL MAGISTRATES COURT 11 Before McInnis FM, the appellant relied upon the following grounds of review in relation to the second Tribunal decision: 1. I believe that this decision was unreasonable and the tribunal failed to consider relevant considerations. This was a breach of natural justice. 2. The Tribunal failed to consider my case in accordance with law. Therefore there was an error in [the second Tribunal decision]. 12 The learned federal magistrate considered the submissions of the appellant and concluded, at [18], that there was no jurisdictional error in the second Tribunal decision: The submissions made in writing to the court this day refer to a series of jurisdictional errors. Those errors identified in the written submissions clearly refer to a number of issues which in my view could properly be characterised as seeking to re-agitate facts previously raised and considered by the [Tribunal] and/or to introduce additional factual material which could and should have been raised by the applicant at the previous hearing leading to the second [Tribunal] decision. 13 Further, McInnis FM considered that the judgment of O'Loughlin J in the second Federal Court decision effectively dealt with the second Tribunal decision. Applying the relevant authorities, to which he referred at [23]-[27], he dismissed the application for review and held, at [28]: In my view the present application clearly appears to agitate issues which have been or at least should have been considered in the earlier proceedings. I am satisfied in applying the relevant principles of law as indicated earlier that not only does res judicata apply but in the event that it does not apply issue estoppel and Anshun estoppel applies to the facts and circumstances of this application. 14 Further, McInnis FM held, at [32], that the application constituted an abuse of process: Further, however, in my view, that [sic] chronology of events giving rise to the application of the doctrines to which I have referred, combined with the dismissal of the application by Selway J in the Federal Court of Australia on 22 August 2003 against the backdrop of what I conclude to be an application foredoomed to failure provides me with an appropriate basis to find, as I do find, that this application is in any event an abuse of process, applying, as I do, the principles set out by the High Court in Walton v Gardiner.

GROUNDS OF REVIEW 15 In this appeal, the appellant relies upon the following grounds: 1. The Federal Magistrate erred in not finding that the Refugee Review Tribunal (RRT) committed jurisdictional error. 2. The Federal Magistrate erred in not remitting the matter back to the RRT for further consideration. The appellant stated that he would provide further grounds once the decision of McInnis FM was handed down. No further grounds have been filed, however the appellant filed on 4 October 2006 a submission in support of his position, which is Annexure A to these reasons. In addition, this day the appellant filed a written submission dated 6 October 2006, which is annexure B to these reasons.

Jurisdictional Error 16 In my view all the matters raised as relevant considerations by the appellant were considered by the Tribunal in its second Tribunal decision. 17 The question of whether there was political motivation behind the incidents referred to by the appellant was considered and rejected by the Tribunal. In my opinion McInnis FM was correct in stating that the appellant is seeking to re-agitate facts considered by the Tribunal. Further, the Tribunal considered each of the relevant considerations as a matter of law that were put before it by the appellant: Abebe v Commonwealth of Australia (1999) 197 CLR 510. In the circumstances, having considered the submission of 4 October 2006 of the appellant, which is annexure A, there is nothing in those submissions which indicate any error by the Tribunal. In my view, the second Tribunal decision does not evince any jurisdictional error.

Allegation of Bias 18 For the first time it was alleged by the appellant in his written submission of 6 October 2006, which is annexure B, and orally before me, that he did not receive a fair trial because of bias of the Tribunal. In reliance upon this allegation reference was made to a letter that was mentioned in the first Tribunal decision in relation to the health of the appellant's wife. Relevantly, the Tribunal made the following observation in its first decision: The applicant wife brought to hearing a letter from a GP stating that she could not be "questioned under pressure situation (sic) as it could make her anxiety level high, resulting (sic) her diabetes worse or make her depressed. In view of the above statement, provided only at hearing, and therefore unable to be confirmed with another doctor in this timeframe, the applicant was asked very few questions. She gave evidence that she had witnessed the attack in 1994, but could not recognise the people. She also said anonymous phone calls had occurred. She thought that this was because of her husband's involvement as chef for the President. 19 In relation to the second Tribunal decision, it appears that the applicant wife was present at the hearing but did not give evidence. Before me there was some dispute about that but the record seems clear. In any event, the passage that is relied upon does not, in itself, suggest any bias on the part of the Tribunal particularly, whether it be the first Tribunal or the second Tribunal. But, relevantly, of course, it should only relate to the first Tribunal decision. In any event, there is no basis upon which I could find bias on the part of the second Tribunal.

Res Judicata, Issue Estoppel and Anshun Estoppel 20 In addition to the above matters I agree with the conclusions of McInnis FM that the application should be dismissed on the basis of the doctrines of res judicata, issue estoppel and Anshun estoppel. 21 The application the subject of the second Federal Court decision was made under s 39 of the Judiciary Act. In that application the appellant asserted that there was a denial of procedural fairness. The next application made on 24 December 2002 for constitutional relief pursuant to s 75(5) of the Constitution was dismissed by Selway J in the third Federal Court decision. The appellant there relied upon a number of grounds including, again, a denial of procedural fairness. 22 The present application made on 19 May 2004 was made under s 39B of the Judiciary Act. In my view there is no relevant distinction to be drawn between an application under s 75(5) of the Constitution and an application under s 39B of the Judiciary Act: Applicant A321 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [13]-[14] ('A321 case'). In each case prerogative or constitutional relief was sought, inter alia, to quash the decision. In Gibbs v Kinna [1999] 2 VR 19 at 26, Kenny JA with whom Ormiston and Phillips JJA agreed, held that: The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment. 23 In Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Merkel J held that, in determining whether res judicata applies, the primary question is whether the cause of action in the later proceeding is the same as that which was litigated in the earlier proceeding. For the purposes of res judicata doctrine the term cause of action is to be understood by reference to the substance of the action as distinct from its form: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 418 per Gummow J (affirmed (1993) 43 FCR 510); BC v Minister of Immigration and Multicultural Affairs [2001] FCA 1669 at [34] per Sackville J. For the reasons found by McInnis FM, these current proceedings should be dismissed as the cause of action has been determined in the second Federal Court decision. 24 The doctrine of res judicata therefore, in my view, clearly applies. It does not matter that the re-litigation is intended to be or is based upon arguments that were not previously presented. In the A321 case, Wilcox J held at [18]: It will be apparent that the argument sought to be made confronts significant difficulties. However, I do not think it is appropriate to determine the present application by reference to those difficulties. The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case. 25 I also agree with McInnis FM that the proceedings should be dismissed because of an issue estoppel. Justice Dixon, as he then was, in Blair v Curran (1939) 62 CLR 464 at 532 explained the distinction between res judicata and issue estoppel in the following terms: In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. That passage was adopted by Gibbs CJ, Mason and Aicken JJ in their joint judgment in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597. 26 As the matter determined in the proceedings before O'Loughlin J was the same as that raised in the second Federal Court decision, the law and facts that are fundamental to the present proceedings must necessarily have already been determined adversely to the appellant. 27 Further, I also agree with McInnis FM that the appeal must fail because of the operation of an Anshun estoppel. 28 The relevant legal principles both in relation to res judicata and estoppel were considered by the Full Court of this Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10. The Full Court said: 36. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium (it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. 37. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun. 38. Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: seeMacquarie Bank Ltd v National Mutual Life Association of Australia Ltd(1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting "special circumstances": see BC v Minister for Immigration & Multicultural Affairs[2002] FCAFC 221. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2)[1981] VR 81; see also Bryant v Commonwealth Bank of Australia(1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investment Co Ltd v Dao Heng Bank Ltd[1975] AC 581. 39. Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd(1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson(2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance. 29 It seems to me there are no circumstances here, special or otherwise, which would warrant the Court from declining to apply the Anshun principle.

Abuse of Process 30 Finally, in my view, McInnis FM also correctly found the proceedings were an abuse of process. The principles relating to an abuse of process are set out in the decision of the High Court of Australia in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 ('Walton')at 392-3as follows: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (citations omitted) 31 In my view it seems clear that the claim to re-litigate the same application for relief as previously is an abuse of process within the meaning of the term as discussed by Mason CJ and Deane and Dawson JJ in Walton.

CONCLUSION 32 In those circumstances, the appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Counsel for the Appellant: The Appellant appeared in person. His friend, S Wignarajah, made submissions on his behalf.

Solicitor for the Respondent: Australian Government Solicitor

ANNEXURE A SUBMISSION I do strongly contend that the learned Judge erred in his failure to rule that the RRT committed numerous jurisdictional errors. And as a consequence I did not receive a fair trial, and thus was deprived natural justice. One of the pillars of my claim that I was persecuted for political reasons and had a substantial and well founded fear for life and limb of my family and me was the threats, emotional stress, physical violence and the attempt to murder me by JVP supporters. It was the failure of the learned Judge in that he erred to rule that the RRT was bound to take cognisance of the political culture of the JVP and this failure resulted in jurisdiction error. If the RRT had taken into consideration the culture of the JVP, they then would not have arrived at the erroneous conclusions about the incident that occurred in 1990 at the Sinhalese Sports Club when I was the chef and threatened that I must delay the function of the President. Please find below the requisite information that will prove the murderous, vicious and bestial nature of the JVP, a left radical party that believes that Sri Lanka belongs only to the Sinhala Buddhist majority and treats other minority communities such as burghers and Catholics as vermin to be eliminated without compunction. I quote; What Robert Oberst wrote in "Current History" vol.91, 1992 in the article "War without winners in Sri Lanka" as a reaction to the reign of terror of the JVP. "The Government countered the JVP with its own reign of terror. In 1988 death squads believed to be made up of off duty police and army personnel and assisted by some UNP supporters removed young people form [sic] their homes at night. The next day the bodies of these youths would be discovered burnt or mutilated. By July 1989 death squad killings had reached several hundreds a week. The violence terrorised villages by targeting the innocent neighbours and friends of suspected JVP supporters." The equal vicious murderous counter measures adopted by the government is a wonderful indication of the danger that this murderous entity pose to civilised society. So heartless are they, no regard for the sanctity of human life that in the 1980s in their reign of terror they compelled many government hospitals totally closed. Doctors and medical staff fled for their lives. And hundreds of patients on life support systems were chased home. The vast majority succumbed even before they reached home. Failure to consider such relevant information led the RRT to erroneously conclude that the incident in 1990 did not occur, and then the RRT moved on to erroneously conclude that my statement of abuse and threat to life did not take place. The learned judge erred in that he did not rule that the RRT did commit jurisdictional error in its failure to take into account this most relevant information, although it was bound to have taken such information into account. One can judge the damage done to me for the RRT concluded that this incident was not plausible because I failed to report this threat immediately to have them arrested by the Security Forces. This is as logical as faulting a chef in the mafia capital in Sicily for not immediately reporting a mafia gangster to the boss, for requiring the chef to delay a function for the politician. The learned Judge erred in that he did conclude that there was no jurisdictional error when the RRT failed to take into consideration relevant information in regard to the incident of the planned ambush when my wife and I were thrown from our motorbike and grievously assaulted. I was bashed, my hand broken, and stabbed in the neck and leg. The RRT erroneously concluded that it was a random criminal attack. It was not a random criminal attack. It was pre planed [sic] and meditated. Exactly at a certain point an empty three-wheeler was pushed into our path late at night at a lonely spot. It was not criminal. We wore jewellery, wristwatches and had cash. None were touched. Where was the criminal intent? Where was the criminal follow up? After we were unconscious I was left to bleed to death. The Judge erred in not concluding that the RRT made an erroneous finding. This error was most damaging as this incident was indisputable evidence of persecution and possible death for our political convictions. When our house was vandalised by a gang in 1997 the Judge erred in his failure to rule that the gang who absolutely thrashed our house, did so for only criminal reasons. The Judge erred in that he did not find that the RRT came to an erroneous conclusion. On the facts it was obvious that it was politically motivated. If the motive was criminal. They would not waste valuable time endangering their safety. In regard to my position being chef at the SSC the learned judge erred in that he concluded that the RRT did not commit jurisdictional error that my position was not a plausible reason for being targeted for political persecution. The SSC was the haunt for UNP politicians, so much so that government security was provided. Presidents and Prime Ministers have their private functions there so often. I was a prominent person moving in the echelons of government power. On these facts the RRT arrived at an erroneous concluded [sic] that I was not targeted for political reasons. In this the Judge erred that the RRT was not bound to take this information into consideration and thus committed jurisdictional error. The learned Judge erred in that he did not conclude the failure to the RRT to take into account the report of the Victoria Foundation of survivors of Torture in Cooperation was jurisdictional error. The report is expressly clear "The applicant was suffering from survivor symptoms of post traumatic disorder and depression. His depression manifest as extreme grief, tearfulness, and feelings of helplessness. He is constantly anxious due to his fear of returning to Sri Lanka. It is my opinion that these symptoms are the direct result of his experiences of persecution in Sri Lanka." The Judge erred in that he did not consider that the RRT was bound to consider such vital information given by an impartial expert in her field. The RRT arrived at an unreasonable conclusion and the Judge erred in not concluding such conclusion did constitute jurisdictional error. The learned Judge has ruled that I was seeking to re agitate facts previously raised and considered by the RRT. (Page 6). I submit respectfully that I was not re agitating facts but only pleading that on the incidents accepted to have occurred by the RRT, the RRT failed to take them into consideration when bound to do so and thus committed jurisdictional error. The learned Judge ruled (page 8) "That once a [sic] issue has been determined according to law and all rights of appeal have been exhausted that should be an end of the matter." I believe I was not granted natural justice because the RRT decision was not a decision determined by law, but was erroneous because of numerous jurisdictional errors. I do believe I was denied natural justice in that the Judge erred when he failed to conclude; a) That the RRT committed jurisdictional errors when it failed to take into account relevant information which it was bound to take into consideration. b) The Judge erred in that he failed to conclude in that the RRT committed an error in law that it demanded a standard of proof that was unrealistic, unreasonable, and impracticable. c) The Judge erred in that it failed to conclude that the RRT reached erroneous conclusions unsupported by evidence that was crucial to the final determination. d) The Judge erred in that he did not conclude that the RRT misunderstood the criteria for the grant of a protection visa. The RRT erred because the notion of persecution in appropriate cases involves the single act of oppression. The criteria demanded that there be some significant detriment or disadvantage. I did suffer significant detriment and disadvantage. i.e. Lost a great career, deprived of a lucrative employment in the Maldives, and bashed, stabbed and left to bleed to death. For all the reasons mentioned above I do believe that the learned Judge did err in not concluding that the RRT did commit numerous jurisdictional errors and other errors in law thus deprive me of natural justice.

ANNEXURE B Further to the submission I handed over on 3rd October 06 I wish to hand over information relevant to that submission. I apologise for the inconvenience caused in not submitting this information on that date. I do believe that we did not receive a fair trial because of the bias of the RRT. My wife's GP gave the RRT a letter that mentioned she should not be I quote "questioned under pressure situations as it could make her anxiety level high, resulting in diabetes worse or make her depressed". This was not a statement open to conflicting opinion between doctors. It was not a statement of medical complexity. It was a clear concise and unambiguous statement. Why then did the RRT confirm "in view of the above statement provided only at the hearing and therefore unable to be confirmed with another doctor, in this time frame the applicant was asked very few questions." (Page 10). Why the need to test the veracity of a simple, precise medical statement? We believe the RRT concluded we were dishonest, attempting to cheat and deceive the RRT. We believe that an inaccurate entrenched mind-set of our character and integrity prevented an impartial decision. We believe that the learned Judge erred in that he should have concluded that we therefore did not receive an impartial decision.