SZBZF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of Driver FM dismissing an application to review a decision of the Refugee Review Tribunal of 28 October 2003 adverse to the applicant, on the grounds (a) that the application was incompetent and (b) that it sought to raise against substantially the same cause of action that previously had been rejected in proceedings in the Federal Magistrates Court: see [2004] FMCA 697. Those earlier proceedings were upheld on appeal to this court in SZBZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1551. Leave to appeal to the High Court from that decision was refused on 30 August 2005. 2 The applicant is an Indian citizen who arrived in Australia in December 2002. He later applied for a protection visa. The basis of his application, the reasons for the Tribunal's rejection of it, and Barnes FM' decision rejecting his application for judicial review are conveniently set out by Sackville J in his decision in [2004] FCA 1551 at [5] - [12]. There his Honour observed: "The appellant made rather brief written submissions in support of his application to the Department for a protection visa. These were not substantially amplified in the application to the RRT. The RRT interpreted the application to it as claiming that the appellant had a well-founded fear of persecution in India by reason of his Muslim religion and also by reason of his political activity on behalf of the Samajwadi (Socialist) Party ('SP'). According to the appellant, the SP was the opposition to the Hindi nationalist Shiv Sena Party ('SSP'). The appellant claimed to be a 'social worker' for the SP, and said that he had been involved in local political protests. He also made claims that he had suffered mistreatment on particular occasions by reason of his political activities. The RRT made the following findings: 1. The RRT noted that the appellant conceded at the hearing that he had not personally suffered harm in the past as the result of any general discrimination against Muslims in India. Accordingly, he did not persist with his claim of persecution on this ground and the RRT found that he did not have a well-founded fear of persecution by reason of his Muslim religion. 2. The RRT accepted, as the appellant had claimed, that he had been detained for 24 hours following a cricket match in December 2001. The appellant had suggested that the police were acting in association with the SSP in attempting to blame one of the teams for the violence, since that team was perceived to be associated with the SP. However, the RRT found on the evidence before it that the appellant was detained in order to investigate the cause of the brawl and that this was done in accordance with the normal administration of Indian law. It rejected the appellant's claim that the police had acted in a discriminatory manner in association with the SSP. The RRT took into account that the appellant had failed to mention this period of detention in either his original application or his application for review. 3. The RRT rejected the appellant's claim, made at the end of the hearing, that he had been attacked in October 2002 by three men acting on behalf of the SSP. The appellant had given a variety of inconsistent explanations for failing to make this claim at an earlier stage. The RRT considered that his evidence on this issue was unreliable for this and a number of other reasons. 4. The RRT accepted the appellant's claim that his uncle had been taken from his (the appellant's) house and that his whereabouts were still unknown. The RRT acknowledged that this was a source of consternation for the appellant and his family. However, the RRT was not satisfied that the police had been involved in the 'kidnapping' of the appellant's uncle. It also rejected the appellant's claim of on-going police harassment as inconsistent with his willingness to approach the police for assistance in respect of other matters. Accordingly, while the RRT found that the appellant might have mistrusted the local police, his approaches to them indicated that he did not have a subjective or well-founded fear of persecution stemming from police actions. 5. The RRT rejected the appellant's claim that his uncle's disappearance was evidence of the SSP's pursuit of him for political reasons. The RRT also rejected the appellant's claim that other events in India demonstrated that he was at risk. It found that during the period from March 2002 (when the appellant returned to India from a business trip to south east Asia) until his departure for Australia in December 2002, action by the SSP against him was confined to some malicious telephone calls. The RRT was not satisfied that these phone calls, which had not led to any 'consequential effects', amounted to serious harm for the purposes of the Convention relating to the Status of Refugees. 6. The RRT accepted that local political pressures, including the malicious phone calls, created some apprehension on the part of the appellant, prompting him to concentrate on his business rather than political affairs. However, the RRT found that none of the incidents, including the continued absence of the appellant's uncle, represented an ongoing threat to the appellant. Accordingly, the RRT found the appellant did not have a genuine and well-founded fear of persecution. 7. The RRT found that, in any event, it would be reasonable in all the circumstances, having regard to the appellant's age, business experience and command of the Hindi language, to expect him to return to the Muslim dominated area of Mumbai, where his family had moved in 2002. Alternatively, it was reasonable for him to locate elsewhere in India should he nonetheless be apprehensive about his safety. For these reasons, the RRT found that the appellant did not have a well-founded fear of persecution on the ground of religion stemming from general discrimination against Muslims, or a well-founded fear of persecution on the ground of political opinion. The appellant appeared without legal representation before the Magistrate. Her Honour noted that the application listed a number of general and unparticularised grounds. The most prominent claim advanced by the appellant was that the RRT had been biased. The Magistrate considered both the question of actual and apprehended bias. Her Honour found that there was nothing in the course of the proceedings before the RRT to indicate either that the RRT member was biased or that the conduct of the proceedings gave rise to a reasonable apprehension of bias. Similarly, there was nothing in the material before her Honour to suggest that the RRT had not made an honest or genuine attempt to undertake the task required of it by statute. On the contrary, her Honour considered (at [23]) that it was apparent from the RRT's reasons that the appellant 'was given every opportunity in the [RRT] hearing to make his claims and to address the [RRT's] concerns and that moreover [the RRT] went to the extent of raising with the [appellant] its concerns at the end of the hearing regarding the evidence which had been presented to it as not indicating past or likely harm giving rise to a well-founded fear of persecution.' The Magistrate noted that the appellant had raised a natural justice ground but had provided no particulars in support beyond a general reference to the decision of the High Court inMuin v Refugee Review Tribunal (2002) 190 ALR 601. There was, however, nothing to suggest that the factual circumstances of Muin v RRT had been established in the present case. In particular, there was nothing to indicate that the appellant had been misled in any way by anything that the RRT had done. The Magistrate further found that the RRT had complied with the obligations imposed on it by ss 424A and 422B of the Migration Act 1958(Cth). The notice of appeal to this Court follows a standard form that includes a reference to Muin v RRT, but does not identify any error of law on the part of the learned Magistrate. The brief written submission provided by the appellant assert that the RRT ignored the merits of his claims and did not act in good faith. The submissions repeat the claim rejected by the Magistrate that the RRT had been biased. There is nothing in the material before me to indicate that the Magistrate made any error of law. The appellant failed before the RRT because, although some aspects of his account of events were accepted, the critical factual claims were rejected. The appellant's assertion that the RRT's decision was affected by actual or apprehended bias is without foundation. Similarly, the assertion that the RRT did not reach its conclusions in good faith must be rejected." 3 On 11 October 2005 the applicant again instituted proceedings in the Federal Magistrates Court seeking judicial review of the decision of the Federal Magistrate of 28 October 2003. The grounds relied upon in this application were of a "template" variety as Driver FM observed. 4 The respondent Minister applied to have the application dismissed as incompetent, as disclosing no reasonable cause of action or because it was barred by res judicata or Anshun estoppel. 5 Having regard to the earlier proceedings Driver FM dismissed the application on two bases. The first was on the ground that it was incompetent in that the first decision (as challenged unsuccessfully in judicial review proceedings) was a privative clause decision in relation to which the Federal Magistrates Court had no jurisdiction. The second basis was that of res judicata in that the applicant was seeking to relitigate substantially the same claims in the second proceedings as were raised in the first. 6 The grounds of review raised before Barnes FM were: "(a) The tribunal made his decision in bad faith. (b) The tribunal deprived me of the natural justice. (c) The tribunal denied the evidentiary proof of my claim. (d) The tribunal's decision did not reflect the material facts of my claim. (e) The tribunal has given a decision, which was preset in the back of it's mind. (f) The tribunal mixed up many facts with this decision which affected the decision. (g) The tribunal concentrated in particular fact, while ignored many other facts in this condition." 7 The grounds relied upon in the appeal heard by Sackville J were very general in character but raised like concerns to those raised before Barnes FM. 8 The grounds of the application before Driver FM were that: "(a) The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considerating of the oral evidence regarding my persecution. (b) The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958. (c) The tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision. (d) The tribunal did not use the country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal was preoccupied and did not have a fresh look. The tribunal also fail to consider the Amnesty International country information. (e) I refer recent High court decision SAAP v MIMIA [2005] HCAQ [sic] 24 (18 May 2005). I refer SZFKL v MIMIA [2005] FCA 931 for Refugee Review Tribunal be joined as a party to the proceedings. (f) I also refer High Court case Plaintiff S157/2002 v Commonwealth of Australia. This decision will be examined in three respects implications affecting jurisdiction, time limits and jurisdictional error. Making sense of the Rule of Law: Trends in the judicial Review of Migration Decisions Post S157/2002 v Commonwealth of Australia, By DR Mary Crock and Catherine Chang." 9 The submissions made to this court on this application - presumably intended to be in lieu of the draft notice of appeal ordered to be filed on 20 April 2006 - belong to the same genre of complaint as all of the above. 10 Considered in context, the grounds of the second application and of the foreshadowed appeal raise substantially the same issues as the applicant sought to raise in the first application. Fairly considered, they do not raise new issues. 11 It is accepted by both parties that the order made by Driver FM was interlocutory in character with the consequence that leave to appeal is required: see Federal Court of Australia Act 1976 (Cth), s 24(1A); Re Luck [2004] 203 ALR 1; but cf Port of Melbourrne Authority v Anshun Pty Ltd (1980) 147 CLR 35. It is unnecessary in this proceeding for me to enter upon the question whether the order made is or is not in fact final: see Port of Melbourne Authority, above, at 34. 12 I am satisfied that if the decision properly is to be characterised as interlocutory it does not satisfy the test for whether leave to appeal should be granted. Importantly, the decision is not attended with sufficient doubt to warrant its being reconsidered in appellate proceedings: Décor Corporation v Dart Industries Inc (1991) 33 FCR 397. In any event, though, I am satisfied that Driver FM's judgment does not betray appellable error. The applicant had every opportunity in the first application to make out his case. He failed to do so but he will not accept the judgment of the courts. He persists in this attitude. Prior to the close of his own oral submissions he foreshadowed a special leave application to the High Court of Australia apparently because he anticipates that this application will be dismissed. However one looks at the matter, be it as a question of jurisdiction, of abuse of process, or of res judicata or estoppel, any appeal in this matter is doomed to failure. 13 The application for leave to appeal will be dismissed. The applicant is to pay the first respondent's costs of the application fixed in the sum of $2,500.00. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.