MZXOW v Minister for Immigration and Citizenship

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."