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MIGRATION - Review of RRT decision - where applicant had previously lodged an application for review with the Federal Court but later withdrew - where applicant then joined Muin and Lie class action - where applicant subsequently lodged an application for review with Federal Magistrates Court - whether the principle of Anshun estoppel should apply to these proceedings - where there had been no determination of the merits in the proceedings before the Federal Court - where applicant claimed to have a well-founded fear of persecution for reasons of his homosexuality and political opinion - whether Tribunal breached s.424A(1) Migration Act - where applicant did not present any evidence as to future persecution due to his homosexuality - where applicant claimed to have made a documentary exposing local government corruption which resulted in him being physically assaulted and threatened - whether Tribunal failed to consider whether the conduct could amount to persecution by reason of actual or imputed political opinion - whether delay in bringing proceedings should act as a bar to relief.

SZARH v Minister for Immigration [2004] FMCA 615 (20 September 2004)

SZARH v Minister for Immigration [2004] FMCA 615 (20 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARH v MINISTER FOR IMMIGRATION
[2004] FMCA 615



MIGRATION - Review of RRT decision - where applicant had previously lodged an application for review with the Federal Court but later withdrew - where applicant then joined Muin and Lie class action - where applicant subsequently lodged an application for review with Federal Magistrates Court - whether the principle of Anshun estoppel should apply to these proceedings - where there had been no determination of the merits in the proceedings before the Federal Court - where applicant claimed to have a well-founded fear of persecution for reasons of his homosexuality and political opinion - whether Tribunal breached s.424A(1) Migration Act - where applicant did not present any evidence as to future persecution due to his homosexuality - where applicant claimed to have made a documentary exposing local government corruption which resulted in him being physically assaulted and threatened - whether Tribunal failed to consider whether the conduct could amount to persecution by reason of actual or imputed political opinion - whether delay in bringing proceedings should act as a bar to relief.



Migration Act 1958 (Cth), ss.417, 424A

Kundu v MIMA [2000] FCA 560

Han v MIMA [2000] FCA 421

Yilmaz v MIMA [2000] FCA 906

BC v MIMA [2001] FCA 1669

Wong v MIMA [2004] FCAFC 242

Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371

Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59

Re Schlieske (unreported, Beaumont J, 23 December 1987)

Ex parte Durairajasingham (2000) 168 ALR 407

NAHI v MIMIA [2004] FCAFC 10

NAOL v MIMIA [2003] FCAFC 243

NARV v MIMIA (2003) 203 ALR 494

Voitenko v MIMA (1999) FCA 428

MIEA v Y [1998] FCA 15

Zheng v MIMIA [2000] FCA 670

Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000)

Applicant A v MIMA (1997) 190 CLR 225

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

R v Sec of State for the Home Department; Ex parte Bugdaycay (1987) AC 514

Applicant:
SZARH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ943 of 2003



Delivered on:


20 September 2004



Delivered at:


Sydney



Hearing date:


7 September 2004



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr D Jay



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The Court declares that the decision of the Refugee Review Tribunal made on 18 April 2000 and handed down on 5 May 2000 is void and of no effect.

(2) The Court orders

(i) The matter be referred to the Refugee Review Tribunal to be heard and determined in accordance with law.

(ii) The respondent pay the applicant's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 943 of 2003

SZARH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the Russian Federation who arrived in Australian on 2 December 1996. On 17 February 1997 he lodged an application for a protection visa (class AZ) with the Department of Immigration and Multicultural Affairs. On 19 November 1997 a delegate of the Minister refused to grant a protection visa and on 4 December 1997 the applicant applied for review of that decision. The applicant attended a hearing before the Tribunal on 17 December 1999. The Tribunal determined on 18 April 2000 to affirm the decision not to grant a protection visa and handed down that decision on 5 May 2000.

2. On 13 May 2000 the applicant applied to the Federal Court for review of the RRT decision (matter N564/2000). The grounds of the application were predicated on the then existing authority that an invalid application would result in an invalid tribunal decision: Kundu v MIMA [2000] FCA 560; Han v MIMA [2000] FCA 421. On 24 July 2000 Matthews J ordered, by consent, that the application be dismissed and the applicant pay the respondents costs. The withdrawal of the claim was explained by his solicitor as following the decision in Yilmaz v MIMA [2000] FCA 906 handed down on 14 July 2000. The applicant then made an application to the Minister under s.417 Migration Act. The Minister declined to assist. After the applicant received this news he joined the Muin and Lie class action. Following the orders of Gaudron J made on 25 November 2002 in those proceedings and the subsequent orders of McHugh J extending the time under order 2 of Gaudron J's orders the applicant filed this application in this court on 27 May 2003. The respondent takes no point that the application should properly have been lodged for an order nisi in the Federal Court however, she does argue that there exists an Anshun estoppel in relation to the application before this court. She argues that the original proceedings in the Federal Court have been determined and judgment entered. She argues that if this Court makes a determination contrary thereto there will exist two decisions, one saying that the decision of the Tribunal was valid and one that it was not. This constitutes a conflict of the type discussed by Sackville J in BC v MIMA [2001] FCA 1669 at [22] where his Honour after referring to the reformulation of the Henderson test in Anshun said:

"Their Honours pointed out (at CLR 603; ALR 12) that it had generally been accepted that a party is estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. ... By "conflicting judgments" their Honours included (at CLR 604; ALR 13):

"... judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction." "

3. At [49] his Honour referred to a number of matters which had been submitted to him constituted special circumstances warranting the conclusion that the Anshun principle should not be applied to the circumstances of the case before him. These special circumstances included the fact that the proceedings raised important issues concerning the life and liberty of the applicant. His Honour accepted that the special circumstances exception to the Anshun principle should not be understood narrowly but stated at [51]:

"It is true that the applicant's claims, if accepted, suggest that his safety and even his life might be in peril if he were to be returned to Pakistan. Regrettably, that is true of very many, if not all, applications in this court seeking judicial review of decisions refusing to grant protection visas. I do not think this fact, of itself, justifies declining to apply the Anshun principle, if it is otherwise applicable. Even in cases of this kind, the policies underlying the Anshun principle retain their force. If the applicant's submission is correct, a legally represented applicant who fails in an application for judicial review of an RRT decision, would be able to institute fresh proceedings in order to pursue grounds that had simply been overlooked or inadequately appreciated at the first hearing, or even deliberately abandoned ... An already frequently protracted process ... would become even more protracted."

4. There is obviously considerable force in the arguments put forward by his Honour. If the applicant here had had his case argued in the Federal Court with all the points of contention considered, discussed and decided upon I would feel obliged to follow the decision in BC. But that did not happen. The applicant brought his case on entirely different bases to those which are now being brought and the case which he did bring was never heard because he withdrew it. I think that the special circumstances involving concerns for the life and liberty of the applicant entitle him to one hearing of his application for review.

5. In discussing the availability of Anshun estoppel in cases such as this the Full Bench in Wong v MIMA [2004] FCAFC 242 said at [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 which properly belongs to the subject matter 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." (emphasis added)

The Court went on to consider the discretionary element contained in the application of the Anshun principal, commented upon the wide range of factors which it would be necessary to take into consideration when deciding what constituted special circumstances and approved the decision in BC (supra). At [39] the Court said:

"Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far 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."

6. The inapplicability of Anshun estoppel applying in cases where there was no determination on the merits was accepted in Re St Leon; Ex parte NAB Ltd (1994) 54 FCR 371; Abrook & Ors v PR Bennett Investments Pty Ltd (1997) 77 FCR 59 at 71 and Re Schlieske (unreported, Beaumont J, 23 December 1987 at page 22).

7. For the reasons given above I would not apply the principle of Anshun estoppel to this application.

8. The factual background to the applicant's claim for refugee status and protection from Australia involves two distinct reasons for separate forms of persecution allegedly suffered and feared. The first reason for his well-founded fear of persecution was his being a member of the particular social group of homosexuals in the Russian Republic. The Tribunal at [CB 151] accepted that the applicant suffered serious harm on a number of occasions which had resulted in his sexual abuse and beating. But it noted that those incidents occurred before the decriminalisation of homosexuality in Russia, which occurred in 1993. The Tribunal then went on to make certain findings of fact about other allegations including findings about their credibility but did not consider that some allegations established harm of the type or severity to constitute convention persecution. The Tribunal found the suggestion that the applicant was refused his "propiska" because of his homosexuality implausible and found the allegation that the police made a report to his employers about his homosexuality far-fetched. None of these findings can be impugned by this court as they are clearly within the Tribunal's remit: Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; NAHI v MIMIA [2004] FCAFC 10 at [12]; NAOL v MIMIA [2003] FCAFC 243 at [7].

9. The complaint which is made by the applicant in relation to the findings of homosexuality relate to findings based upon the use of independent country information discussed at [CB 152] about gay life in Russia which allowed the Tribunal to conclude at [CB 153]:

"In view of the above the Tribunal concludes that homosexuals may still meet with some discrimination in Russia, it notes that homosexuality has been decriminalised for some seven years and, given the applicant's claims it finds that there is not a real chance that he would be persecuted for reasons of his belonging to the particular social group of homosexuals in Russia."

The applicant says that the Tribunal failed to give him an opportunity to comment upon the information which the Tribunal utilised to come to that conclusion and that this was either failure to comply with the requirements of s.424A Migration Act or a breach of the rules of natural justice. It is accepted that the applicant can raise the general claim of a breach of the rules of natural justice in the circumstances of this particular case.

10. The form of the decision is unusual. The Tribunal has set out in the section headed `Claims and Evidence' 54 numbered paragraphs constituting the applicant's statement. What it does not do is then to provide details of the discussions between itself and the applicant in the manner frequently seen in these decisions. The Tribunal in this case proceeds directly to its findings and reasons which are contained between [CB150] - [CB 154]. It is impossible to see from the document whether or not any of the country information relied upon was put to the applicant. He submits that it was not. In light of the manner in which the decision is written I am prepared to give him the benefit of the doubt upon this and assume it was not.

11. The respondent argues in respect of s.424A Migration Act that the information falls within s.424A(3) and is different from the type of information discussed in NARV v MIMIA (2003) 203 ALR 494. That information was much more personal to the applicant's case because it had a direct bearing on the credibility of documents which the applicant had utilised to corroborate his claims. Here the information was about discrimination and relevant only to the assessment of the likelihood that a person of the particular social class to which the applicant belonged to face persecution in Russia. In other words there was nothing personal to the applicant about it except in so far as he was a member of the social class of homosexuals to which it referred. I think there is much force in that argument and I do not believe that the Tribunal was in breach of s.424A(1) because the information was of a type which fell within s.424A(3).

12. But this does not relieve the Tribunal from its duty to provide procedural fairness to the applicant. Was it fair that the Tribunal should come to a conclusion about the potential persecution of homosexuals in Russia on the basis of information which it did not discuss. The respondent says it was. She argues that the applicant must have know that his claims about fearing persecution for reasons of homosexuality were bound to be tested by the Tribunal and it was up to him to satisfy the Tribunal that the persecution would occur. He did do that. He gave a statement about his homosexuality and the suffering that it had caused him. But it seems to have been, as the Tribunal noted, historical. There is nothing in this statement which attempts to show the Tribunal why the applicant would have a well-founded fear of returning to Russia because of his homosexual status. The Tribunal did not need the information which it utilised to find that the applicant had failed to satisfy it. The information was not information used in rebuttal of anything said by the applicant or even anything hinted at by him. He provided simply no evidence whatsoever about the current situation in Russia. I do not believe that he was not provided with procedural fairness when the Tribunal failed to discuss with him material which, put at its highest, would only corroborate his own failure to provide the evidence of persecution that the Tribunal would need to form its state of satisfaction.

13. The second ground put forward by the applicant is that

Having accepted the applicant's account of events regarding the investigation of criminal activity and exposure of corruption and his subsequent physical mistreatment to be truthful the Tribunal failed to consider or ask:

(a) Whether the conduct could amount to persecution by reason of an actual or imputed political opinion and thereby

(b) Amount to persecution for the purposes of article 1A(2) of the Convention relating to the Status of Refugees.

14. After leaving the army having been subject to the abuse for his homosexuality found by the Tribunal the applicant moved to Leningrad where he worked in the fish processing industry. He left that industry and joined up with two colleagues as free lance investigative video and photo-journalist. In his statement he said that he was working on a report about nickel smuggling and the involvement of the wife of the Mayor of Leningrad:

"We found this information through [various] contacts in the ports. The tape which we produced showed the nickel being transferred from the railways to containers being loaded on ships and on the docks. The nickel was being exported without proper documents. At the time of the shooting of the material we knew that the activities were illegal but we did not know that the Mayor was involved. We traced the company involved to the Mayor's wife (who is now a Deputy in the Duma). This was controversial as people thought that the Mayor was a democrat and was not involved in corruption.

We submitted a tape to the TV. The first thing that happened was that the editor told us that he had to give the tapes to people from the city council. After this the tapes disappeared.

The next thing which happened was that all of us in the group started to receive threats. ...

When we started to receive threats we then asked our informants more about the company involved in the smuggling. It was then that we discovered that one of the directors was Mayor Sobchak's wife L Narusova."

The applicant then goes on to deal with his reaction to the threats and going into hiding but noted that he continued his work making some investigations about humanitarian aid coming from Germany which aid had been sold through companies associated with people at the Council level. The group made further investigations about privatisation of land and communal flats which was being carried on in Leningrad without (allegedly) providing the current occupants with new accommodation or obtaining permission from other residents. They discovered that the Mayor of Leningrad was involved in this activity and that his parents-in-law were living in one of the flats. During the course of shooting an interview for a program about this matter they were arrested and

"[38] We were driven to the office of Insula Security Company. The police officer left us with the guards only telling them to take care of us. We were taken inside the building and were again asked to give them all our material. When we refused they took it by force, beating us. It was around this time they showed us their ID saying they were from Insula Security Company. They wanted to know where the other material was. We protested that it was ours and they thought that this meant there was more. We were then separated and I was taken to a room by myself.

[39] Two men beat and mistreated me as they tried to get information out of me. Every strike was accompanied by dirty insults. The memory of the terrible abuse which I suffered continues to haunt me. I was tortured in a variety of ways. They put a plastic bag over my head, I was forced to have oral sex with one of the men. I was paralysed with terror. I knew that they could kill me. ...

[40] I knew that I had to do something to escape since they had threatened to kill me and had told me what had happened to my friend. I was able to escape about seven to nine hours after being detained. ..."

15. Thereafter the applicant left Russia and travelled to UAE. He made two surreptitious visits back to Russia for short periods prior to coming to Australia.

16. The Tribunal in its reasons for decision dealt with this matter in the following way at [CB 153]:

"The situation in Russia since the break up of the Soviet Union has been characterised by corruption and criminality in many walks of life. A number of sources confirm the criminality which has grown up around the country's transition from a planned economy to a free market one. It is sufficient to cite the US State Department Country Reports on Russia for the last 5 years. The applicant has claimed that the difficulties and harm which he came to as a result of his and his colleagues' attempts to record for news and documentaries the illegal activities of others fall into the Convention reason of "political opinion". The Tribunal accepts the applicant's claims in relation to the events being claimed but it is of the view that the applicant was an unfortunate victim of criminal elements who were trying to prevent him and his colleagues from exposing some of their activities. The motivation for the harm inflicted on the applicant was not the applicant's political opinion but their own desire to escape detection and presumably punishment for their illegal activities

[The Tribunal then discusses the decision in Ram v MIEA & Anor (1995) 130 ALR 314 before continuing]

The Tribunal thus finds that the harm suffered by the applicant in those claims that he has regarded as dealing with his political opinion, is not for Convention reasons.

17. In Voitenko v MIMA (1999) FCA 428 the Full Bench of Wilcox, Hill and Whitlam JJ considered a case similar to the instant one. There an applicant had exposed corruption and had suffered as a result. The Tribunal had decided, quoting Ram, that the violence inflicted upon him was not part of a course of systematic conduct directed against him for any convention reason. In his appeal Mr Voitenko argued that the action taken by him and his friend was designed to challenge systemic corruption; it was therefore political action and the persecution of the friend was persecution on account of the friend's political opinion and activities. He shared that political opinion and feared that if he returned to Russia he would be persecuted for it. In his decision Wilcox J referred at length to the decision of Davies J in MIEA v Y [1998] FCA 15 and noted at [17] -[18]:

"The other relevant point about Y is that it contains no suggestion about a dichotomy between criminal activity and persecution on account of political opinion. The abduction and torture of Y and his friend, and the abduction and rape of Y's wife, were undoubtedly seriously criminal acts, but nobody suggested this prevented them from being categorised as persecution on account of political opinion.

I reject the submission that an attitude of resistance to systemic corruption of, and criminality by, government cannot fall within the description "political opinion". Whether particular resistance amounts to an attitude having a political dimension or whether it is simply a product of other causes such as fear of detection is, of course, a question of fact for determination in the particular case."

18. This finding that the exposure of systemic corruption could amount to an expression of imputed political opinion was accepted by Merkel J in Zheng v MIMIA [2000] FCA 670 where his Honour considered the authorities not only in Australia but also in Canada and the United States. At [31] his Honour approved of the decision in Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000) where the Court said at 1181:

"Refusal to accede to government corruption can constitute political opinion for the purposes of Refugee status. See Desir v Ilchert, 840 F 2d 723 - 729(9th Cir 1988). Thus, official retaliation against those who expose and prosecute government corruption, may in appropriate circumstances amount to persecution on account of political opinion ..."

19. At [39] his Honour considered the claims made by Mr Zheng and said:

"The difficulty with the applicant's claims is that although he might have viewed his acts as "political" there was no material that suggested that the authorities had viewed, or might view, his acts in exposing Mr He as having any political aspects. In particular, the material and evidence provided by the applicant was bereft of any basis upon which the authorities might perceive his exposure of his superior's corruption as a political act in any of the senses described I the cases to which I have referred."

20. Mr Zheng worked in the loans department of a Chinese bank. The corruption which he alleged he had exposed was that of his superior officer who was deputy president of the bank. That case is factually much more limited than the one before me. Here, the corrupt activity was being carried out by high-ranking officials in the City Council.

21. It is clear from the extract set out above at [16] that the Tribunal in the instant case viewed the circumstances of the applicant to be the result of common criminal elements which may be prevalent in any society and therefore fall outside the Convention. In SHKB v MIMIA [2004] FCA 545 Selway J commented at [12]:

"In my view the attempt by the Tribunal to draw a distinction between Convention based reasons and retribution involves a jurisdictional error. In MIMA v Singh (2002) 209 CLR 533 ("Singh") the High Court held, although in a slightly different context, that where an act of revenge or retribution is derived from or arises out of a political act or campaign then the act or revenge or retribution may be a political act: see at 544-545, 550-553 and 577-578. As it was put by Gleeson CJ at 545

`[The Tribunal] was proceeding upon a view that there is a necessary antithesis between violent retribution and political action. That was an error of law.'"

22. The applicant and his colleagues were investigative journalists and filmmakers. It seems to me that it would not be difficult to ascribe to such persons an imputed political motive for their actions. They had no personal relationship with the corrupt officials and their purpose in exposing the corruption was to broadcast it to the community generally. I am satisfied that there was sufficient information to allow the Tribunal to make a decision as to whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the alleged well-founded fear of persecution: see Applicant A v MIMA (1997) 190 CLR 225 at 240, 268, 284. But the Tribunal did not carry out this assessment.

23. I am satisfied that the Tribunal failed to consider or ask itself whether the conduct could amount to persecution by reason of actual or imputed political opinion and thereby amount to persecution for the purposes of Article 1A(2) of the Convention Relating to the Status of Refugees.

24. The respondent argues that I should not exercise my discretion to grant review in favour of the applicant because of the delay involved in prosecution of this claim. The decision of the Tribunal was handed down on 5 May 2000 and the present proceedings were commence on 27 May 2003 as the respondent accepts that delay is explained by the applicant's participation in the Muin and Lie class action which began in February 2001 and ended in June 2003. But she argues that the applicant's entry into the class action was itself more than 7 months after the Tribunal decision and well outside the time limit normally applied to applications for certiorari and mandamus in the High Court. I accept that there has been delay but I do not accept that it has been so significant that I should preclude review in a situation where I believe that review should be granted. I have considered the nature of the litigation, the conduct of the parties and the consequences to the parties of a grant or refusal of an extension: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. In particular I have taken account of the views of the English Court of Appeal in R v Sec of State for the Home Department; Ex parte Bugdaycay (1987) AC 514 at 531 and 537.

25. I will grant the application for review. I will make the appropriate declarations and orders. The respondent shall pay the applicant's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 September 2004
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