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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in Sri Lanka - claims rejected by RRT as a fabrication - applicant participating in class action in the High Court to set aside an earlier RRT decision that had already been set aside - applicant initially attempting to review the same RRT decision in the present proceedings - application amended to seek review of the operative RRT decision -that decision previously upheld by the Federal Court - application in its original form incompetent - application in its amended form an abuse of process.

SZCYW v Minister for Immigration [2004] FMCA 878 (25 November 2004)

SZCYW v Minister for Immigration [2004] FMCA 878 (25 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCYW v MINISTER FOR IMMIGRATION
[2004] FMCA 878




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in Sri Lanka - claims rejected by RRT as a fabrication - applicant participating in class action in the High Court to set aside an earlier RRT decision that had already been set aside - applicant initially attempting to review the same RRT decision in the present proceedings - application amended to seek review of the operative RRT decision -that decision previously upheld by the Federal Court - application in its original form incompetent - application in its amended form an abuse of process.




Migration Act 1958 (Cth), ss.430, 431, 474, 476, 477

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Dalapatadu v Minister for Immigration [2000] FCA 26

Dalapatadu v Minister for Immigration [2000] FCA 697

SZAWW v Minister for Immigration [2003] 479

Applicant:
SZCYW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG671 of 2004




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


25 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms S Hanstein

Blake Dawson Waldron




CORRECTED INTERLOCUTORY ORDERS

(1) The amended application filed on 4 August 2004 is dismissed summarily on the basis that it is an abuse of process.

(2) The application filed on 11 March 2004 is summarily dismissed as incompetent.

(3) The applicant is to pay the respondent's costs and disbursements of and incidental to both applications, fixed in the sum of $4,750.

(4) The Court directs that no further application by this applicant to review either the decision of the Refugee Review Tribunal made on 27 May 1999 or the decision of the RRT made on 13 July 1998 be accepted for filing in this Court, except by leave of the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG671 of 2004

SZCYW



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a motion by the respondent Minister of which notice was given on 25 August 2004. By that motion, the Minister seeks the summary dismissal of an application for judicial review filed on 4 August 2004. That judicial review application had in turn sought review of a decision of the Refugee Review Tribunal ("the RRT") made on 27 May 1999. The Minister asserts that the judicial review application is an abuse of process. The Minister relies upon the notice of motion and upon two affidavits of Sharon Hanstein. The first affidavit was made on 14 July 2004 and the second was made on 24 August 2004. Ms Hanstein also prepared written submissions in support of the Minister's motion which were filed in my chambers on 22 November 2004. Both parties also had the opportunity, which they took, to present oral submissions to me today.

2. It is important to point out at this point that the judicial review application, the subject of today's hearing, was an amended application. The original judicial review application filed in this Court was one filed on 11 March 2004 in relation to an earlier decision of the RRT. The Minister properly objected to the competency of that application by a notice filed on 14 July 2004. The original judicial review application was plainly incompetent as that RRT decision had been overturned by a decision of the Federal Court on 30 October 1998. Obviously an applicant cannot challenge in proceedings in this Court a tribunal decision that has already been set aside.

3. The background to these proceedings is dealt with in the form of a chronology forming annexure A to Ms Hanstein's second affidavit. The procedural history of various proceedings instituted by this applicant is somewhat complex and the chronology is a useful aid to understanding that history. I adopt that chronology for the purposes of this judgment:

18.03.97
Applicant's application for a protection visa refused by a delegate of the respondent



15.04.97
Applicant applied to the RRT for review of the delegate's decision refusing the protection visa application



13.07.98
RRT affirmed delegate's decision (the First RRT Decision)



14.08.98
Applicant applied to Federal Court for an order of review in relation to the First RRT Decision



10.09.98
Applicant joins High Court Muin/Lie class action on the basis of First RRT Decision



30.10.98
First RRT Decision set aside by consent by Federal Court



27.05.99
RRT again affirmed delegate's decision (the Second RRT Decision)



18.06.99
Applicant applied to Federal Court for an order of review in relation to the Second RRT Decision



24.01.00
Federal Court (Whitlam J) dismissed application for an order of review - Dalpatadu v Minister for Immigration [2000] FCA 26



14.02.00
Applicant appealed from judgment of Whitlam J



26.05.00
Full Court of the Federal Court (Kiefel, North and Mansfield JJ) dismissed the applicant's appeal - Dalpatadu v Minister for Immigration [2000] FCA 697



29.05.03
Applicant filed an individual application for order nisi in relation to the First RRT Decision pursuant to orders made by Gaudron J in the Muin/Lie class action



20.02.04
Application for order nisi dismissed by Emmett J





4. I also adopt by way of background paragraphs 2-15 of Ms Hanstein's written submissions:

The applicant is a national of Sri Lanka who arrived in Australia on 24 December 1995. On 21 June 1996, she lodged an application for a protection visa which was refused by a delegate of the respondent (affidavit of Sharon Hanstein sworn 24 August 2004 (Affidavit), p 5).

The applicant applied to the RRT for review of the delegate's decision and, on 13 July 1998, the RRT affirmed the delegate's decision (the First RRT Decision) (Affidavit, p 5).

On 14 August 1998, the applicant applied to the Federal Court for an order of review in relation to the First RRT Decision. On 10 September 1998, the applicant sought judicial review in the High Court of the First RRT Decision, as a member of the Muin class action (Affidavit p 3).

The First RRT Decision was set aside by consent by the Federal Court on 30 October 1998 (Affidavit p 42).

On 27 May 1999, the RRT again affirmed the delegate's decision (the Second RRT Decision) (Affidavit p 4). The applicant's claims included that, as a result of her relationship with a Tamil who eventually joined the LTTE, she was imputed with the political opinion of LTTE supporter, and her boyfriend was seeking to harm her because of her refusal to continue their relationship. The RRT rejected the applicant's case on the basis of adverse credibility findings (see Affidavit pp 56-57).

On 18 June 1999, the applicant applied to the Federal Court for an order of review in relation to the Second RRT Decision (Affidavit p 38). That application was dismissed by Whitlam J on 24 January 2000: Dalpatadu v Minister for Immigration [2000] FCA 26 (Affidavit p 40).

On 14 February 2000, the applicant appealed from the judgment of Whitlam J (Affidavit p 51). The appeal was dismissed by a Full Court (Kiefel, North and Mansfield JJ) on 26 May 2000: Dalpatadu v Minister for Immigration [2000] FCA 697 (Affidavit p 54).

Pursuant to leave granted by the High Court in the Muin class action, the applicant filed an individual application seeking orders nisi in respect of the First RRT Decision on 29 May 2003 which application was remitted instanter to the Federal Court (the Remitted Application).

The Remitted Application was dismissed by Emmett J on 20 February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289).

The present proceedings were commenced by an application filed on 11 March 2004, which sought review of the First RRT Decision. An amended application, filed on 4 August 2004, seeks review of the Second RRT Decision. It is therefore presumed that it is the Second RRT Decision that is the subject of the present proceedings.

Previous judgments

The applicant was legally represented in each of the previous Court proceedings in relation to the Second RRT Decision. The grounds raised in those proceedings included:

a) The RRT failed to observe procedures which it was required by law to observe (Affidavit pp 45-46); and

b) There was no evidence or other material to justify the making of the decision (Affidavit p 46).

Particulars of these grounds were provided (Affidavit pp 45-45).

As noted above, the applicant was unsuccessful in her legal challenges to the Second RRT Decision, both at first instance and on appeal.

Present judicial review application

The Amended Application asserts that the RRT (in relation to the Second RRT Decision) committed jurisdictional error in failing to make findings on a number of aspects of her case. Those aspects, whilst not entirely clear, appear to be:

a) The authorities considered her to be an accomplice to an LTTE member;

b) The manner in which she obtained her visa to travel to Australia was necessary in the circumstances;

c) The applicant's boyfriend, who was an LTTE member, considered she could protect him because she was Sinhalese; and

d) The applicant's boyfriend had threatened her because she would not assist him.

5. The Minister's motion came before me for hearing on Monday, 22 November 2004. On that occasion I was advised outside of court that there appeared to be a problem between the applicant and the Sinhalese interpreter who was in court to assist her. I asked the applicant when I came into court what the problem was but I had difficulty in understanding clearly from her what the difficulty was. As best as I could understand it, the applicant lacked confidence in that interpreter, who had previously assisted her. In the course of investigating the circumstances the interpreter himself asked to be excused. In the circumstances, I agreed to adjourn the hearing until today so that a different interpreter could be arranged. Both the applicant and Ms Hanstein, for the Minister, told me that an adjournment to today would be convenient. Nevertheless, during the course of the hearing today the applicant told me that she had had an insufficient opportunity to prepare for the hearing on the Minister's motion. The applicant told me that she only came to court on 22 November 2004 in response to a letter received from my associate advising her of the hearing date. I have received that letter as an exhibit in these proceedings (exhibit C2). I also received as an exhibit a letter from the Minister's solicitors to the applicant at the same address for service, dated and posted on 26 August 2004 (exhibit C1). That letter enclosed a copy of the Minister's notice of motion and the second affidavit of Sharon Hanstein. The letter was sent by express post. It was not returned. The applicant denied receipt of that letter but acknowledged receipt of two earlier letters sent by the same solicitors to the applicant at the same address. Those letters were sent on 25 June 2004 and 27 July 2004.

6. In the circumstances, it is difficult to accept as credible the applicant's denial of receipt of the letter which constituted service by post of the Minister's motion and the supporting affidavit. However, even if that letter had not been received, the applicant was aware by the end of June 2004 that any amended application by her in relation to the 1999 decision of the RRT would be likely to be opposed as an abuse of process. The applicant has had an opportunity at least since Monday to consider the Minister's position. I am satisfied that that opportunity has been sufficient. I therefore reject the applicant's request for an adjournment of the Minister's motion based on the asserted abuse of process.

7. In her written submissions, Ms Hanstein also raises an issue of Anshun estoppel. That assertion was not included in the notice of motion filed on 25 August 2004. If that issue was to be determinative of the outcome of the proceedings today, an adjournment would probably be reasonably called for. However, for reasons which follow, that issue is not determinative of the outcome of today's proceedings.

8. I indicated to the parties at the commencement of today's hearing that in my view there was an issue of jurisdiction that I would need to consider in advance of considering the issues of abuse of process and Anshun estoppel. That issue of jurisdiction is that if the decision of the RRT now subject to review is a privative clause decision, the Court has no jurisdiction to entertain these proceedings any further. Apart from anything else, s.477(1A) of the Migration Act 1958 (Cth) ("the Migration Act") requires an application for a review of a tribunal decision to be filed within 28 days of notification of the decision. That section applies if the Tribunal decision is a privative clause decision. I do not think that it matters whether the relevant tribunal decision was made before or after the commencement of that section.

9. The critical issue is when the application for judicial review was filed. The application before me was filed on 4 August 2004, several years after the commencement of s.477. The applicant was aware of the decision of the RRT was subject to review no later than 18 June 1999 when she instituted proceedings in the Federal Court for review of that decision. Obviously, if the RRT decision is a privative clause decision, the judicial review application has been filed many years out of time. I have no jurisdiction to extend that time limit.

10. The judicial review application asserts jurisdictional error on the basis of four elements of the applicant's claims that the applicant asserts the RRT failed to respond to. The decision of the RRT forms annexure B to Ms Hanstein's second affidavit. It is apparent from a reading of that decision that the applicant failed before the RRT because she was not believed. On page 25 of the decision (page 28 of Ms Hanstein's affidavit annexures) the presiding member said this:

The essence of the applicant's claim to be a refugee is twofold:

1. That as a result of her relationship with a Tamil who eventually joined the LTTE, the applicant has been imputed with a political opinion of being an LTTE supporter.

2. The applicant's former boyfriend is now seeking to harm her because of her refusal to continue to have a relationship with him.

11. On page 27 of the RRT's reasons, the presiding member said:

It was suggested by the applicant's adviser that this matter is an "obscure" one. On the contrary, the Tribunal finds that this matter suggests from the outset that the applicant has set out to mislead the Australian Immigration authorities (both in Sri Lanka and in Australia) and that the applicant has continued to be mendacious throughout the refugee determination process.

12. In support of that contention, the presiding member referred to the applicant having provided false information to the Australian High Commission in Sri Lanka. She also referred to the implausibility and inconsistency in the applicant's claims. The presiding member also noted that aspects of the applicant's claims were self-serving. In presenting her arguments to the RRT, the applicant at times contradicted herself. On page 34 of the reasons for decision (page 37 of the annexures to Ms Hanstein's second affidavit) the presiding member stated:

At the conclusion of the hearing (24 February 1999) the Tribunal pointed out to the applicant that there were numerous contradictions in her claims at various stages in the refugee process, and noted the overall implausibility of her claims and their lack of consistency with the independent evidence. The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, and did so through her adviser. The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.

13. The presiding member concluded:

Considering the applicant's mendacity on not only the essential elements of her claim, but other aspects of her claims discussed above, as well as the numerous inconsistencies in her claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Sri Lankan authorities, or by the applicant's former boyfriend, to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a Convention reason in Sri Lanka in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a Convention reason is well founded.

14. The applicant challenged the RRT decision in the proceedings instituted in the Federal Court in proceedings number N596 of 1999. Although at that time the legal basis upon which a decision of the RRT could be challenged was different and more restricted than it is now, the applicant raised very similar arguments in those proceedings as are raised in these proceedings.

15. In my view, the asserted failure by the RRT to respond to the applicant's claims, as detailed in particulars 1 and 2 in the amended application for judicial review, were raised in the 1999 Federal Court proceedings. His Honour Whitlam J dealt with the applicant's legal challenge in a written judgment and relevantly addressed the issues raised in both those proceedings (these form page 8 of his judgment, page 47 of the annexures to Ms Hanstein's second affidavit). His Honour relevantly said:

On any view of the meaning of the expression "material questions of fact" in s 430(1)(c), the Tribunal was not required to make findings about the views held by Sinhalese society. What it regarded itself as bound to do, and what it did do, was to deal with the actual claims made by the applicant in the context of the Convention definition of refugee. The Tribunal expressly declined (at p 31) to find that a political opinion of support for the LTTE would be imputed to the applicant by the Sri Lankan authorities. It referred to the evidence upon which it relied, including the fact that the applicant was Sinhalese. What use the Tribunal made of the evidence before it was, of course, a matter for it.

16. His Honour also rejected the applicant's contention that the RRT had failed to deal with the applicant's response to the expressed concerns of the presiding member on the applicant's credibility. His Honour noted that the presiding member said at page 28 of the RRT decision:

The applicant has not, despite having had an opportunity to do so, addressed the central inconsistency - the different information provided to the Department and then the Tribunal, and has failed to give a reasonable explanation for her dishonesty. It is not simply a case of the applicant providing "more detail" at her hearing, because her claims to the Department, her statement to the Tribunal and her evidence at hearing are factually different.

17. On page 10 of his reasons (page 49 of the annexures to the affidavit) His Honour noted that, in any event, the submission misconceives the role of reasons under s.431 of the Migration Act. His Honour noted that the RRT is not obliged in its reasons to address every argument and speculation advanced by or on behalf of an applicant. While the issues were considered by Whitlam J in the context of asserted procedural errors by reference to the available grounds of review in the now repealed s.476 of the Migration Act, the position under the general law is in my view no different.

18. The decision of Whitlam J was affirmed on appeal by the Full Federal Court on 26 May 2000. That decision forms annexure F to Ms Hanstein's second affidavit. Their Honours dealt with the authorities then relevant and dismissed the contention that the RRT failed to make a finding on a material question of fact, mainly as to how a Sinhalese who formed a relationship with a Tamil would be treated by Sinhalese society and the Sri Lankan security forces.

19. The Full Court also rejected the contention that the RRT had failed to give reasons as to why it rejected submissions relating to the issue of the applicant's credibility. In the course of dealing with that second issue, the Full Court specifically dealt with the issue of the falsehood committed by the applicant in obtaining a visa to come to Australia. The Full Court noted that that issue had been adequately and properly addressed by the RRT.

20. I find, based on the decision of Whitlam J and the Full Court, that the present application, to the extent that it depends upon particulars 1 and 2 set out in the amended application, has already been conclusively determined by the Federal Court. It is simply no longer open to argument that the RRT had failed to respond to those aspects of the applicant's claims.

21. The remaining two particulars relate to the applicant's relationship with her boyfriend in Sri Lanka. Far from failing to deal with that relationship and the consequences of it, the decision of the RRT centred upon them. The decision and reasons of the presiding member is one of the more thorough and comprehensive examinations of an applicant's claims that I have ever seen. There is no substance whatsoever to the assertion in the amended application that the RRT failed to respond to any element of the applicant's claims.

22. It follows, and I find, that the decision of the RRT is a privative clause decision and because the RRT decision is a privative clause decision, I have no jurisdiction to entertain further the amended application. The amended application was not filed within the prescribed time and I have no jurisdiction to extend the time limit. Even if I were wrong in that conclusion, I would have dismissed the amended application as an abuse of process. The RRT decision subject to review has already been the subject of two earlier proceedings in the Federal Court.

23. The applicant has waited approximately four years since the rejection of her appeal by the Full Federal Court to institute the present application. Throughout that period of four years, the applicant has apparently held a bridging visa on the basis that she was a participant in the now notorious Muin and Lie class action in the High Court. Within one month of the applicant joining that class action in 1998, the decision of the RRT the subject to that proceeding was set aside by the Federal Court. It is surprising that no one in the Minister's Department realised that the applicant was participating in a legal proceeding to review a decision of the RRT that had already been set aside.

24. It is less surprising that the applicant permitted the Minister and her Department to labour in ignorance. By maintaining a bridging visa when she had no real entitlement to one, the applicant deferred her departure from Australia. The applicant claims that she acted at all relevant times on legal advice but I do not believe her. She could not have had any genuine belief that her continuing legal proceedings to review a decision of the RRT that had already been overturned served any purpose other than to maintain her bridging visa.

25. It was only after the Minister's Department or her legal advisers belatedly discovered the truth this year, following the filing of the original judicial review application of 11 March 2004, that the applicant made a further attempt to have reviewed the 1999 decision of the RRT. In my view, the applicant is simply seeking to prolong her stay in Australia and has no genuine belief in the contentions raised in her application before the Court.

26. I will order that the amended application filed on 4 August 2004 is dismissed summarily on the basis that the Court has no jurisdiction to entertain it. For completeness and for the avoidance of doubt, I secondly dismiss the application filed on 11 March 2004 as incompetent.

27. Ms Hanstein seeks an order for costs fixed in the sum of $4,750, noting that the Minister's actual costs exceed $7,000. The applicant doubted her capacity to pay those costs but her ability to pay is not the relevant issue. I am satisfied that costs in the amount sought by Ms Hanstein have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to both the original and the amended application, which I fix in the sum of $4,750.

28. In addition, having regard to the unfortunate procedural history of this matter, I will order that no further application by this applicant to review either the decision of the RRT made on 27 May 1999 or the decision of the RRT made on 13 July 1998 be accepted for filing in this Court except by leave of the Court.

ADDENDUM

29. Since delivering judgment ex tempore in this matter on 25 November 2004 it has come to my attention that I was wrong in concluding that the Court had no jurisdiction to entertain the judicial review application in its amended form. That conclusion was based on the false premise that s.474 and s.477(1A) of the Migration Act apply to these proceedings. Those provisions do not apply as the relevant RRT decision was made before the commencement of those provisions and an application to review the decision was also made before the commencement of those provisions[1]: SZAWW v Minister for Immigration [2003] FMCA 479 at [4]. However, I maintain my view that the application in its amended form is an abuse of process. I have therefore corrected order 1 made on 25 November 2004 to reflect my final view. I have taken the view that this course is open to me as the orders have not yet been entered and because I reserved the right to alter my reasons on receipt of the judgment transcript.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 1 December 2004


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[1] See paragraph 8(2) of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
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