M199 of 2003 v Minister for Immigration

Case •

[2005] FMCA 898

•

2 June 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M199 of 2003 v MINISTER FOR IMMIGRATION [2005] FMCA 898

MIGRATION – Protection visa – res judicata.

PRACTICE AND PROCEDURE – Non-appearance – preferable to proceed to hear the application and make final order pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 – where orders of Court wrongly refer to appearance of applicant – where notice of hearing sent to wrong address – where no address noted on order – court file inadequate – reliance on correspondence from respondent’s solicitor.
Federal Magistrates Court Rules 2001, Rule 13.03A(d)
Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677
Applicant: M199 of 2003
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number: MLG 1052 of 2004
Judgment of: McInnis FM
Hearing date: 2 June 2005
Delivered at: Melbourne
Delivered on: 2 June 2005

REPRESENTATION

Applicant: No appearance
Counsel for the Respondent: Dr S Donaghue
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The application be dismissed.

  2. The applicant shall pay the respondent's costs fixed in the sum of $8000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1052 of 2004

APPLICANT M199/2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. In this application, when the matter was called on for hearing this day, the applicant did not appear. The respondent has invited the court to dismiss the application pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001 which entitles the court to proceed in default of appearance with the hearing generally.  In doing so, the court is invited to dismiss this application primarily on the basis that the doctrine of res judicata applies.

  2. The court was initially concerned as to whether or not the applicant had in fact received notice of the hearing date of this application.  The matter had been the subject of orders made in the Federal Court of Australia transferring the application to this court on 11 August 2004.  On that date, orders made by Weinberg J included orders that the applicant provide particulars of grounds set out in the draft order nisi on or before 8 September 2004, the applicant file and serve written contentions of fact and law on or before 6 October 2004 and the respondent file and serve written contentions in reply by 3 November 2004.

  3. It is clear that the court file does not in fact contain perhaps all the documents that may be sought to be relied upon by the applicant. 


    In particular the respondent appears to have received by facsimile transmission on 20 September 2004 what one presumes to be a document purporting to comply with the orders made by Weinberg J. 


    I have directed that that document be placed on the court file.  The court file also reveals a document, again purportedly forwarded by facsimile transmission to the registrar of this court on 8 September 2004, with further written comments from the applicant.  Considering both those written documents, it is clear to me that neither of the documents advance issues for and on behalf of the applicant for reasons which will become apparent in this decision.  The concern of the court, however, was to simply determine as a preliminary point whether or not it could be satisfied that the applicant had indeed received notice of this hearing.

  4. After the matter had been the subject of orders made by Weinberg J transferring the application to the Federal Magistrates Court, it appears that a notice of a directions hearing was forwarded to the applicant at an address at Dorothy Avenue, Thomastown (the Dorothy Avenue address).  That is the address which appears in the affidavit relied upon by the applicant in High Court proceedings.  That notice dated 18 August 2004 advised the applicant that there would be a directions hearing on 15 December 2004.  I should add that the Dorothy Avenue address is an address which appears on a document on the court file and appears to be on an envelope which I assume contains correspondence where an attempt was made by registry to send the document to the applicant in or about April 2004.  The envelope postmarked 30 April 2004 has the Dorothy Avenue address as the address for the applicant, and it is noted that on that envelope the words are written, "No longer at this address," and then further words are written providing a new address which is an address I shall refer to as Fosch Street, Reservoir (the new address).

  5. A memorandum on the file dated 19 May 2004 from an officer of the court refers to the new address as being the applicant's new address.  The source of the information is not clear.  In any event, what then happened after May 2004 was that a notice of listing was sent by the court to the applicant dated 12 November 2004 notifying the applicant that the matter was to be listed before a Federal Magistrate for what is described as directions on 19 November 2004 at 11 am.  That notice was addressed to the Dorothy Avenue address, despite the fact that on the file there was at least material which would have alerted the court to the new address.

  6. The matter then came before the court on 19 November 2004 and was heard by another Federal Magistrate.  On that occasion the court order which appears on the file states the following, "These proceedings coming on before the court and appearances having been entered by the parties," and then goes on to refer to the orders.  One of those orders made was that the matter be listed for hearing on 2 June 2005 at 2.15 pm.  Although that order refers to appearances having been entered by the parties, there is no other record on the court file of the appearances which were actually entered.  I do note in passing, however, that a report of listing in relation to the Federal Court matters does refer to the applicant appearing on a number of occasions in that court when the matter was before that court.  In any event, there is no record of the applicant actually appearing before the Federal Magistrate on 19 November 2004.  Counsel for the respondent this day has indicated to the court that according to his instructing solicitor's records, it appears to be the case that the applicant did not in fact appear on 19 November 2004, contrary to what appears to have been set out in the order.  In any event, there does not appear to be on the court file evidence that that order was conveyed by the court to the applicant.

  7. Prior to 19 November 2004 the applicant by facsimile message dated 20 September 2004 had at least on that document referred to the new address.  Up to that point the court was concerned about whether or not the applicant had in fact received notice that this matter had been fixed for hearing this day.  Had I been required to rely on the court record as a result of the different addresses to which I have referred, and the inaccurate reference to an appearance of the applicant on 19 November 2004, then I would not be prepared to proceed in the absence of the applicant this day on the basis that I would not be satisfied that the hearing this day has been brought to the attention of the applicant.

  8. However, the respondent has produced further correspondence which the respondent's solicitor has undertaken to annexe to a brief affidavit which demonstrates that by letter dated 24 November 2004 addressed to the applicant at the new address, the applicant was advised as follows, "Your application was listed for a callover on 19 November 2004.  Despite your non-appearance, the court listed your application for hearing on 2 June 2005 at 2.15 pm.”  The new address I am told from the bar table happens to be the current address available to the respondent and again will be referred to briefly as being the current address in the affidavit to be prepared by the respondent's solicitor.

  9. It is also noted in this matter that there has been a change of solicitors for the respondent. That fact was the subject of further correspondence. First a letter dated 21 April 2005 addressed to the applicant at the Dorothy Avenue address. That letter, which will also become an exhibit to the affidavit of the solicitor, has attached to it the envelope marked "return to sender". Not surprisingly, the respondent’s solicitors on becoming aware of the current address through the Department then forwarded a further letter dated 23 May 2005 to the applicant to the new address. That letter has not been returned. It is on that basis and on the basis of the earlier letter dated 24 November 2004 addressed to the new address that I am satisfied that the applicant is aware of these proceedings, and certainly the involvement of the new solicitors for the respondent. In the circumstances I conclude that it is in the interests of justice that I should proceed to determine the matter as requested by the respondent, that is to proceed to consider the application and make an order pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules.

  10. The background is set out in paragraphs 1 to 10 of the respondent's contentions of fact and law as follows:-

    “1.The applicant is a citizen of Pakistan.  He arrived in Australia in 1999 on a student visa.  On 2 August 2002, he applied for a protection visa.

    2.In October 2002, he nominated Ms Jenny Chen, of 89 Sydney Road Brunswick, to act and receive communications on his behalf.

    3.On 16 October 2002, a delegate of the respondent decided not to grant the applicant a protection visa. In accordance with s.66 of the Migration Act 1958 (Cth) (the Act) the delegate wrote to the applicant informing him of the refusal and enclosing a copy of the decision record [CB38]. The delegate did that by:

    (a)sending a letter addressed to the applicant ‘care of Jenny Chen, 89 Sydney Road, Brunswick; and

    (b)sending a letter addressed to the applicant to the residential address nominated in the protection visa application [CB3, 40]

    4.The second of the above methods is one of the methods of notification specified in reg 2.16 of the Migration Regulations 1994 and s.494B(4) of the Act. As a result of that letter, the applicant was taken to have received notice of the decision on 25 October 2002 (by reason of s.494C(4) of the Act). That conclusion is unrelated to the letter sent to Ms Chen.

    5.The applicant was taken into immigration detention on


    1 November 2992 [CB 49].

    6.On 3 December 2002, after the expiry of the 28 day period permitted by s.412 of the Act, the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (the Tribunal) [CB 42].

    7.On 17 December 2002 the Tribunal decided that it had no jurisdiction to review the delegate’s decision because the application was lodged out of time (the Decision) [CB 48-52]

    8.On 24 December 2002 the applicant commenced proceedings in the Federal Court challenging the Decision [CB 54]

    9.On 15 April 2003 French J dismissed that application, finding that the letters notifying the applicant of the delegate’s decision were sent to the applicant’s last known residential address and to the agent in accordance with the relevant statutory provisions and that the Tribunal therefore had no authority to entertain the application for review [CB 59-64]

    10.    The applicant did not appeal against French J’s decision.  Instead, about two months later, on 12 June 2003, he commenced the present proceedings.  The proceeding was commenced in the High Court, but it was remitted to the Federal Court on


    26 February 2004 and then to this Court on 11 August 2004.

  11. In brief terms, it is clear to me that in this case the respondent's submissions are correct in relation to the operation of the doctrine of res judicata.  I accept and apply the authorities to which reference has been made in relation to res judicata, and in particular note the authority of Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. It will be clear from the chronology of events to which I have referred that the decision of French J in dismissing the application by this applicant on 15 April 2003 was not the subject of any appeal. I am satisfied on the material before me that the principles of the doctrine of res judicata apply in the sense that I do not detect any discernible difference between the issues sought to be raised and agitated in this application and those issues previously determined and which were the subject of the decision of French J referred to in the chronology set out earlier in this judgment. Applying the authorities to which I referred, it is clear to me that in this case the appropriate course is that the application be dismissed with costs.

  12. In the event that I am in error in relying upon the doctrine of res judicata, it is my view that in any event on the merits I see no reason why this court should conclude that the decision of French J was incorrect.  Indeed, to the contrary, it appears to be correct, and for the same reasons set out in His Honour's decision, in my view this application is without merit.  In all the circumstances, the appropriate order is the application be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  2 June 2005

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