A211 of 2002 v Minister for Immigration
[2004] FMCA 527
•17 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A211 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 527 |
| MIGRATION – Review of a decision of the Refugee Review Tribunal – refusal of a protection visa – decision previously the subject of a proceeding in the Federal Magistrates Court – res judicata – issue estoppel – application essentially a repeat of previous application. |
Migration Act 1958
Judiciary Act
The Constitution
NAJV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 169
Somanader v Minister of Immigration and Multicultural Affairs [2000] FCA 1992
S157 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24
| Applicant: | A211 of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ152 of 2002 |
| Delivered on: | 17 September 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 14 August 2003 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Clisby |
| Solicitors for the Applicant: | Mr Clisby |
| Counsel for the Respondent: | Mr Roder |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application do stand dismissed.
That the applicant pay the respondent's costs assessed in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) pursuant to Part 21, Rule 21.2 (2) (a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ152 of 2003
| A211 of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were originally instituted in the High Court on 13th September 2002.
Writs of prohibition. certiorari and mandamus were sought arising from a decision regarding the applicant made by the Refugee Review Tribunal dated 5th April 2002.
The grounds relied on by the applicant were a breach of the rules of natural justice in connection with the making of the decision, an assertion that the decision involved and error of law, an assertion that the procedures required by law to be observed in connection with the making of the decision were not observed and that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, that there was no evidence or other material to justify the making of the decision and that the decision was otherwise contrary to law.
The proceedings were remitted to the Federal Court of Australia and on 4th April 2003, Justice Mansfield made various procedural orders and adjourned the matter to 6th June 2003.
On 15th April 2003 orders were made by consent vacating the orders made by His Honour Justice Mansfield noting the respondent was to file and serve a Court Book in the matter at which time further orders would be made by the Court.
On 12th May 2003 His Honour Justice Selway made detailed orders as follows:-
(1)The applicant, by 19th June 2003:-
a)if an extension of time within which to commence the proceedings is required, file and serve a Notice of Motion seeking an extension of time together with an Affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The Notice of Motion shall be made returnable for hearing at the next directions hearing;
b)file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged;
i)file and serve an outline of submissions;
ii)file and serve a memorandum stating:-
· The state or territory in which the applicant is residing;
· Whether the applicant wishes to be present at the hearing of the application;
· Whether the matter is one that could be transferred to the Federal Magistrates Court;
· Whether the applicant objects to the transfer to the Federal Magistrates Court and if so the grounds for the objection.
(3)In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the Notice of Motion, to file and serve an Affidavit in opposition to the extension of time.
(4)The respondent within 3 weeks of receiving the applicant's submissions pursuant to paragraph 1 (c) above file submissions in reply.
(5)The directions hearing is fixed for Friday 4th July 2003 at 9am.
(6)In the event that order (1) is not fully complied with the applicant will be called upon the adjourned directions hearing to show cause why the matter should not stand dismissed.
(7)Liberty to apply.
On 3rd July 2003 the respondent filed a Notice of Motion for summary dismissal which it sought to have heard at the adjourned directions hearing before Justice Selway on 4th July 2003.
On 4th July 2003 His Honour made further orders transferring the proceedings to the Federal Magistrates Court of Australia, adjourning further consideration of the Application and the respondent's Notice of Motion for hearing in the Federal Magistrates Court at 2.15pm on 29th July 2003, granting to the applicant liberty to file further affidavit material to lay a factual foundation for the allegations made in the Amended Application within 2 weeks of that date and liberty to the respondents to file affidavits in reply within 3 weeks of the 4th July 2003. Both parties were granted liberty to file further submissions by 12 noon on 28th July 2003 and costs were to be costs in the cause..
The Notice of Motion for summary dismissal sought a dismissal of the application on the basis of no reasonable cause of action being disclosed as there was no breach of the rules of natural justice as alleged, that in the circumstances the RRT properly proceeded to make a decision on the review pursuant to section 426 of the Migration Act 1958.. The Notice also referred to the non compliance by the applicant of orders made by the Federal Court on 12th May 2003 requiring the filing and serving of a Notice of Motion where an extension of time in which to seek an order in the nature of mandamus is required together with an affidavit of the applicant personally explaining the reasons for the delay.
On 29th July 2003, the matter was adjourned to 10.15am on 30th July 2003 as the solicitor for the applicant claimed to have been taken by surprise by issues of issue estoppel and res judicata referred to in an outline of the respondent's submissions.
On 30th July 2003 the matter was further adjourned to 14th August 2003 at 2pm with an order that both the applicant and her principal solicitor attend by way of video link from the Sydney registry of the Federal Magistrates Court. The Court further ordered that the applicant's counsel file and serve an amended outline of submissions and list of authorities specific to the issues in the particular case on or before 8th August 2003, that the respondent's counsel be at liberty to file and serve a further amended outline of submissions and list of authorities on or before 12th August 2003 and reserved the question of costs.
Mr Clisby claimed to be acting as Adelaide agent for the applicant's Sydney solicitors and to be unaware of the matter raised in the outline of respondent's submissions, namely that the applicant was seeking to re-litigate an issue previously determined by the Federal Magistrates Court in the matter of NAJV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 169. This was a judgment of Federal Magistrate Raphael delivered on the 15th August 2002 at which time His Honour dismissed the amended application filed in the Federal Magistrates Court on 16th July 2002. His Honour also ordered that the applicant pay the respondent's costs in the sum of $3,750.
No reference to that case was made in the proceedings instituted in the High Court and ultimately remitted for hearing in this Court.
In the only material before the Court from the applicant, notwithstanding the orders made in the Federal Court as to the filing of further material, there was no reference to the earlier determination of the matter in the Federal Magistrates Court.
A short perusal of His Honour's reasons for judgment in the case of NAJV would indicate that he decided that the appellant had not succeeded in her claim namely that the manner in which the Tribunal had acted in deciding her application in her absence constituted a failure to exercise power in a bona fide manner.
In this amended application filed on behalf of the applicant on 26th May 2003, the grounds of the application are that a breach of the rules of natural justice occurred in connection with the making of the decision, that the applicant was denied procedural fairness in connection with the making of the decision and the decision was otherwise contrary to law.
The procedural orders made by His Honour Justice Selway on 12th May 2003 required that the amended application specify precisely the error or errors upon which the decision under review is challenged, but no such specificity was obvious in the amended application.
On 4th July 2003 His Honour granted liberty to the applicant to file further affidavit material to lay a factual foundation for the allegations made in the amended application within 2 weeks of that date. A facsimile copy of an affidavit purportedly sworn by the applicant on 2nd July 2003 had been filed in the Court the day prior to His Honour's orders.
The applicant deposed to having wished to attend at the Refugee Review Tribunal hearing to give oral evidence before the Tribunal made a decision concerning her case. She deposed to not having attended at the Tribunal hearing to give oral evidence because she did not receive a letter from the Tribunal inviting her to a hearing. On 11th April 2002 she received a letter from the Tribunal advising that a decision had been made and that it would be delivered on 1st May 2002. She deposed to having been shocked to receive that letter and went to the Tribunal to receive her decision. She deposed that at the time the letter of invitation to the hearing was sent to her, apparently between 25th and 28th February 2002, she was living at 147 Auburn Road with an aunt and that that property and an adjoining property were duplexes with separate post boxes. She apparently wondered whether the letter had been put in the next door post box. She said she moved address on 20th April 2002 and that in about the first week of May 2002 she discovered that her migration agents had closed their business. She apparently had no communication from them since January 2002.
The applicant appeared therefore to be seeking to agitate in this Court an issue that had already occupied the time of the Court in a hearing in Sydney in 2002.
At the conclusion of that hearing His Honour, for the reasons set out in his judgment, recommended that the Minister might view the applicant's position sympathetically and intervene in the matter.
The Court first heard submissions from counsel for the respondent in respect of the Notice of Motion for summary dismissal. It was submitted that the respondent was entitled to the relief sought by reason of res judicata which barred further proceeding by the applicant.
It was argued that there was no necessity for the relief to be specifically pleaded as proceedings in the Federal Court or the Federal Magistrates Court do not require pleadings as envisaged by Cross but rather fair notice of the facts on which a party relies, and that the applicant's solicitor was on notice that the point of res judicata was to be taken.
It was further submitted that it was perfectly clear from the matters raised in paragraph 7 of Federal Magistrate's judgment in the matter of NAJV (supra) that the facts relied on by the applicant in the hearing before His Honour were identical to the only facts put to this Court in support of the current application and that the relief sought was identical.
The only distinction between the matters raised before Federal Magistrate Raphael and before this Court was the applicant's argument that there had been, in the hearing before the Tribunal, a breach of natural justice. This was not argued at the earlier hearing before Federal Magistrate Raphael because of the understanding at that time of what are referred to as the "Hickman principles". There had been no appeal in respect of the decision of Federal Magistrate Raphael.
Mr Tredrea referred to the judgment of Justice Merkel in Somanader v Minister of Immigration and Multicultural Affairs [2000] FCA 1992. In that case His Honour specifically discussed the doctrine of res judicata and the authorities relating thereto, particularly in paragraphs 44 to 46 and 50 to 53 of that judgment. His Honour said in paragraphs 44-46:-
44. The doctrines of res judicata and issue estoppel have been held to apply to applications for judicial review: see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356 per Fisher J and at 365 per Ryan J.
45. If res judicata applies to the present proceeding, there is no discretion in the Court to allow the proceeding to continue. By operation of law the applicants are not able to maintain the proceeding as the plea, if made out, is a complete bar to the claim as the cause of action is extinguished by the first judgment; see Anshun at 612-613; Chamberlain at 511; Effem Foods Pty Limited v Trawl Industries of Australia Pty Ltd (1993) 43 fcr 510 AT 512.
46. 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 former proceeding.
And in paragraphs 50 - 53:-
50. While in some cases define "cause of action" to mean the fact or combination of facts which gives rise to right to sue (Carter v Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557 AT 600; Do Carmo v Ford Excavations Proprietary Limited (1984) 154 CLR 234 AT 245; Golski v Kirk (1987) 14 FCR 143 at 145) other cases strongly support the view that "cause of action" in this area of the law means the right, rather than the facts which support the right (Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 AT 672-673: Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 ("Macquarie") at 559).
51. In Macquarie (at 559) Clarke JA noted that what is necessary:
"…is an examination of the factual circumstances relied upon to establish the right to relief in each case in order to determine whether there is a sufficient identity between them to found the conclusion that the same cause of action was in question in both cases."
52.In Trawl Industries of Australia Pty Ltd v Effem Foods Pty Limited (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510), Gummow J concluded that a court should focus on the substance of the two proceedings rather than their form (at 418);
"It is said that for the estoppel to operate, the cause of action in each proceeding must be the same: Ramsay v Pigram (at 280). But , as Brennan J pointed out in Anshun (at 610-613) the phrase 'cause of action" is used imprecisely and in several senses. These include:
(i) the series facts which the plaintiff must allege and prove to substantiate a right to judgment;
(ii) the legal right which has been infringed; and
(iii) the substance of the action as distinct from its form.
Sir William Brett MR directed attention to this third sense by asking 'whether the same sort of evidence would prove the plaintiff's case in the two actions': Brunsden v Humphrey (1884) 14 QBD 141 at 146. In that litigation the first action had been brought in a country court and the second in the High Court. In Chamberlain v Deputy Commissioner of Taxation, (1988) 164 CLR 502 AT 508, Deane, Gaudron, Toohey JJ drew attention to what Brennan J had said as to the imprecision of the phrase 'cause of action', but did not espouse any particular formulation.
However, as indicated above, for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form. This reflects the constitutional basis of federal jurisdiction, to which I have referred earlier in these reasons. Also, it allows for the very many controversies which now come before superior courts, federal and State, without pleadings. And even where pleadings are necessary or are ordered, the effect of the judicature system of pleading, now in general operation in Australia, is as described by Barwick CJ;
'[T]here is no necessity to assert or identify a legal category of action…It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts.'
See Philip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473. Further, characterisation by regard to substance rather than form assists in cases where the first action was brought in a foreign forum, for the doctrine applies in such circumstances….."
53. It is clear from the above authorities that the identity of the causes of action in question is to be determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded."
It was submitted by respondent's counsel that in this case there was not just sufficient identity between the matters raised by the applicant in the original proceedings before Federal Magistrate Raphael and those raised by her in these proceedings, but rather there was a precise match, and that as regards matters of substance, this was the same case albeit that different arguments were advanced in respect of the facts on which the applicant relied.
It was argued in accordance with the principles laid down in Somanader (supra) that if the substance of the applicant's case was the same in both instances the fact that the arguments may vary from Court to Court, for example a breach of natural justice in one Court and lack of bona fides in another Court, did not enliven a right on behalf of the applicant to re-litigate a matter of the same substance on two separate occasions.
Mr Clisby, of counsel for the applicant, submitted, Cross on Evidence 3rd Edition (pages 119 and 132) that if the respondent was to rely on issue estoppel, such matter must be specifically pleaded, and that res judicata was a species of estoppel. He said that for the doctrine of res judicata to apply it must be determined by the Court that the issues of law and fact to be determined by the Court are identical to those previously determined.
He conceded that the facts were identical but submitted that issues of law as they applied to the facts were not identical.
He referred to the reference by Federal Magistrate Raphael in paragraph 8 of his judgment in NAJV (supra) of the Hickman principles enlivening the jurisdiction of the Court under Section 39B of the Judiciary Act, and to the lack of reference in any part of His Honour's judgment as to the issue of lack of procedural fairness. He said that as that was not referred to in His Honour's judgment and as the law had changed so fundamentally following upon the decision of S157 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24, the Court only had to consider the common law rules of natural justice.
He said that on the basis that the applicant could not have received the letter from the Tribunal inviting her to attend at the hearing, (as was found by Federal Magistrate Raphael), she was not only denied the opportunity to attend but denied the chance to respond to pivotal issues by which the Tribunal determined the matter.
He submitted that the grounds of the applicant's argument and the relief available to the applicant in the proceedings heard by Federal Magistrate Raphael were fundamentally different to these proceedings being an application under section 75(v) of the Constitution.
The matters raised in the present application and those raised in the application before Federal Magistrate Raphael indicate a commonality of the causes of action. The substratum giving rise to the right of review are exactly the same.
The factual circumstances relied upon to establish the right to relief are the same.
The substance of the two proceedings is the same.
I am satisfied that the principles of res judicata are applicable in this case.
The points the applicant wishes to argue before this Court are identical to those argued before Federal Magistrate Raphael. By seeking to bring a repeat of her original application in this Court, the applicant is to my mind bringing a proceeding or claim for relief which is an abuse of the process of the Court.
In relation to the applicant's argument that the cause of action was founded on the applicant not having been afforded procedural fairness as opposed to the more limited right of review in existence at the time that Federal Magistrate Raphael heard the application which resulted in the applicant relying on the ground of lack of bona fides, I accept the argument of the respondent that the facts of this case, being identical to the facts before the case in Federal Magistrate Raphael, do not support a finding of lack of procedural fairness or natural justice on the part of the Tribunal.
In His Honour's original judgment, he referred in detail to the circumstances that had befallen the applicant in relation to the letter inviting her to attend at the Tribunal hearing. He referred to the considerable detail set out in the provisions of Part 7 of the Migration Act in relation to how the Tribunal should conduct its procedures. He referred to the fact that in that particular case the Tribunal had taken the matter further than required by the Migration Act to try and locate the applicant.
In the matter before this Court the respondent did not deny the facts. Mr Roder referred to the importance of the "deeming provision" namely Section 441C of the Migration Act whereby the applicant is deemed to have received notice for the purposes of the Act within
7 days after the date appearing on the notice. It was submitted therefore that notwithstanding the contents of the applicant's affidavit, she was deemed to have received notice of the hearing by 4th March 2002.
It was submitted by counsel for the respondent that section 426A of the Migration Act means that if the applicant is invited to attend and does not do so, the Tribunal may make a decision on review without taking any further action to allow the applicant to appear before it. It was submitted that such a provision is a direct and clear statutory provision, the effect of which is that the applicant does not have a right to appear before the Tribunal in those circumstances. There are similar provisions in place in relation both the Migration Review Tribunal and the Refugee Review Tribunal and the evident purpose of the legislation was referred to by Federal Magistrate Raphael in paragraph 9 of his judgment in the case of NAJV (supra).
Mr Roder argued that the effect of the deeming provisions and section 426A of the Migration Act is that the right of the applicant to be heard orally at a Tribunal hearing is specifically excluded by the legislation. It was conceded that such exclusion did not specifically exclude all rights in accordance with natural justice, for example, it may be that the applicant should be permitted to reply in writing to specific points, but the applicant is not entitled to attend for an oral hearing, and that it was clear that the Act takes away that right from the applicant and that the safe-guard as referred to in paragraph 11 of His Honour Federal Magistrate Raphael's judgment in the case of NAJV, is the power of the Minister to intervene.
Taking all of those matters into account I accept the arguments of counsel for the respondent and I am satisfied that the substance of the two proceedings is the same, both in respect of the facts on which the cause of action is based and the right to relief in each case. Because of the res judicata situation no reasonable cause of action is disclosed in relation to the claim for relief and I am therefore able to dismiss the application pursuant to Rule 13.10 (1) of the Federal Magistrates Court Rules. I order that the applicant pay the respondent's costs assessed in the sum of $3,500 pursuant to Part 21, Rule 21.2 (2) (a) of the Federal Magistrates Court Rules.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Mead FM
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