Jayasinghelage v Minister for Immigration
[2008] FMCA 106
•30 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAYASINGHELAGE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 106 |
| MIGRATION – Application by first respondent to have substantive application dismissed – applicant’s non-attendance at Court – relevance of previous application – abuse of process – application dismissed. |
| Applicant: | NIMAL CHANDRA JAYASINGHELAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1416 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 30 January 2008 |
| Date of last submission: | 30 January 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms E. Loh |
| Solicitor for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed as an abuse of process.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1416 of 2007
| NIMAL CHANDRA JAYASINGHELAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today there is an interim application by the First Respondent which seeks that the substantive application before the Court be dismissed. This is put on a number of alternative bases such as res judicata and/or issue estoppel and/or Anshun estoppel.
It is put that the substantive proceeding is an abuse of process because of a previous application by the Applicant. That application, which sought to review a decision of the Migration Review Tribunal
(“the Tribunal”), has already been dismissed on the merits by Riethmuller FM and it is further put, arising out of the various estoppel matters, that the Applicant cannot establish an arguable case.
The papers are a little bit all over the place, but it is apparent from the annexure to the Applicant's affidavit sworn on 15 October 2007 that on 21 July 2006 the Tribunal dismissed an application for review by the Applicant on the grounds - and this is from paragraphs 26 to 28 of the Tribunal's reasons for decision - that the Applicant entered Australia on or before the relevant time to enable him to satisfy the relevant criteria for the visa he sought. The Tribunal took the view that it had no discretion to take into account the alleged current circumstances in Sri Lanka.
It is apparent from the affidavit of Ms Loh that on 12 September 2006 the Applicant filed an application to review the Tribunal's decision and it is also apparent that Riethmuller FM ordered that that application be dismissed on 5 December 2006. Counsel for the Minister informs me and I, of course, accept that Riethmuller FM has not yet provided reasons in writing for that decision, although they have been requested.
Yesterday my chambers received, at a time that is not clear because there is no transmission record on the document, a very short letter from the Applicant which, after giving his address and the reference number of the proceeding simply reads:
“Tomorrow, 30 01-08 I'm unable to attend to Court. My case hold at: 10.15 am.”
That short letter, of course, does not actually give any reason for the incapacity to attend and annexed to that or sent at the same time there is a letter purporting to be from Dr Nelum Soysa, who appears, according to the letter, to be a medical practitioner, which relevantly reads simply:
“Mr Nimal Jayasinghelage is unable to attend court due to ill health.”
The letter does not say what the nature of the ill health is or why it prevents the Applicant from attending Court and more importantly, it is not dated so that I cannot, according to the terms of the letter, be certain that the doctor's letter was referring to today.
I interpolate that it is not wholly clear that Dr Soysa is a registered medical practitioner, because the letter is not on what one would describe as letterhead, though there are some qualification details on it. I assume, however, in the Applicant’s favour that Dr Soysa is indeed a doctor.
In these circumstances, and having regard to the fact that the Applicant has failed to attend at least the hearing with Riethmuller FM, I have decided to proceed in the absence of the Applicant.
Counsel for the Minister has taken me through the application before this Court and the application that was before the Court when the matter came before Riethmuller FM. The two applications are identical, save that in the application in this proceeding the Applicant seeks an extension of time.
The Applicant has in fact filed a second affidavit, sworn on 27 November 2007. Much of that affidavit simply recites the procedural history to which I have already in part made reference. What is particularly noteworthy about the affidavit is that it completely fails to give any mention of the earlier proceeding before Riethmuller FM, even though the Tribunal decision that is sought to be reviewed is exactly that which was the subject of the proceedings before Riethmuller FM.
In my opinion, it would seem clear that there is an issue estoppel. It is clear that this controversy has already been determined by the Court. It is not, in my view, an Anshun estoppel case because the Applicant is not seeking to bring a related cause of action that he could have brought in the earlier proceeding, rather he is simply seeking to bring the same proceeding again.
It is not necessary, in my view, to get involved in these reasons for judgment with any detailed analysis of the law relating to res judicata or issue estoppel. In substance, the Applicant is simply seeking to re‑agitate before the Court the application that Riethmuller FM has already quite plainly dismissed.
It is not, in my view, necessary to await Riethmuller FM's reasons for decision. It is plain that his Honour made the decision to which reference was made.
I have no doubt that if Riethmuller FM had dismissed the application because of the Applicant's non-attendance, the orders made would have reflected that, so even without the assurance of counsel, who I understand to have been present at the time, that the matter was determined on the merits, it would be plain that that has happened.
Clearly the proper course for the Applicant would have been either to seek to set aside Riethmuller FM's judgment pursuant to the Court's rules or to have appealed and he has not elected to do either of those things.
In the circumstances this application is, in my view, clearly an abuse of process and I am going to dismiss the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 30 January 2008
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