M67 of 2003 v Minister for Immigration
[2005] FMCA 1347
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M67 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1347 |
| MIGRATION – Protection visa – jurisdictional review – whether arguable case – res judicata and issue estoppel – Anshun estoppel. PRACTICE AND PROCEDURE – Application to set aside order made in absence of Applicant – whether satisfactory explanation given for non-appearance – whether arguable case – Rule 16.05(2)(a) of Federal MagistratesCourt Rules 2001. |
| Federal Magistrates Court Rules 2001, r.13.03A, 16.05(2)(a) Migration Act 1958, s.474 |
| BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669 Applicant M29/2001 v MIMIA [2003] FCA 1266 Thayananthan v MIMIA [2003] FCA 1054 |
| Applicant: | M67 of 2003 |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1119 of 2003 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 January 2005 |
| Date of Last Submission: | 4 February 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2005 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr G.P. Carroll |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 17 November 2004 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $1,525.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1119 of 2003
| M67 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
This is an application filed 12 January 2005 which I take to be made pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 ("the Rules"). The rule relevantly provides that the Court may set aside an order after it has been entered if the order is made in the absence of a party.
An order was made on 6 October 2004 that the application filed 24 April 2004 be dismissed pursuant to Rule 13.03A of the Rules and a further order was made that the applicant should pay the respondent's costs fixed in the sum of $7000. That order dismissed an application where judicial review was sought of a decision by the Refugee Review Tribunal ("the RRT") made on 17 January 2002 which had affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The proceedings commenced by application for an order nisi for writ of prohibition, certiorari and mandamus and an injunction including an application for extension of time in the High Court of Australia. The High Court then remitted the application to the Federal Court of Australia, which in turn transferred the proceedings to the Federal Magistrates Court. The applicant had been represented by a lawyer for a period of time, though by notice of intention to withdraw dated 6 May 2004 that lawyer withdrew from acting on behalf of the applicant.
Orders were made by a registrar in November 2003 requiring the applicant to file and serve written submissions by January 2004 in relation to the extension of time issue and reasons why res judicata or issue estoppel does not apply or why Anshun principles should not apply.
To understand the reasons for those orders made by the registrar, it is appropriate to note that after the decision of the RRT made on 17 January 2002 the applicant made an application for judicial review to the Federal Court by an application dated 14 February 2002 (Court Book 58-61).
On 10 December 2002 Gray J of the Federal Court of Australia dismissed the applicant's application to the Federal Court and provided reasons for judgment. Hence, not surprisingly, questions of res judicata, issue estoppel and/or Anshun estoppel were raised at an early stage in these proceedings.
By notice dated 9 January 2004 solicitors previously acting for the applicant gave notice of their appointment as lawyer to act again for the applicant. Submissions were filed on 9 January 2004 entitled, "Applicant's submission on extension of time, res judicata and estoppel." The respondent filed an outline of submissions in relation to those issues on 15 January 2004 and then on 1 March 2004 made application for summary dismissal. The respondent relied upon an affidavit of Gavin Patrick Carroll sworn 27 February 2004 which helpfully sets out a chronology of events in part described earlier in this judgment as follows:-
23 October 1998 Applicant arrived in Australia;
19 November 2001 Applicant detained as unlawful non‑citizen applicant applies for a protection visa
11 December 2001 Delegate refuses application for a protection visa
13 December 2001 Applicant applies for review to Refugee Review Tribunal
17 January 2002 RRT affirms decision of the delegate;
14 February 2002 Applicant issued application in Federal Court for judicial review
10 December 2002 Federal Court application dismissed by Gray J
7 January 2003 Applicant requested first respondent to exercise powers under section 417 of the Migration Act 1958 ("the act");
17 March 2003 First respondent declined applicant's request to exercise powers under s.417 of the Act;
24 April 2003 Applicant files application for constitutional writs in High Court
1 August 2003 Application for order nisi remitted to the Federal Court by consent
9 October 2003 Federal Court transfers proceedings to Federal Magistrates Court
12 November 2003 Registrar's orders;
9 January 2004 Applicant's submissions filed;
15 January 2004 First respondent's submissions filed.
A notice of withdrawal of lawyer acting for applicant dated 14 May 2004 was filed on 18 May 2004 and hence after that date the applicant again became unrepresented.
When the matter came before the court on 6 October 2004, then, as indicated earlier in this judgment, the application was dismissed pursuant to Rule 13.03A of the Rules.
The application to set aside the order of 6 October 2004 was filed on 17 November 2004. Although the application does not specifically refer to the rule and is otherwise claimed to be on the face of it a "reinstatement" application, it simply refers to the desire on the part of the applicant to have "another hearing date" and refers to his non‑appearance on 6 October 2004 being due to "illness". An affidavit in support of the application to set aside the order was sworn by the applicant on 17 November 2004 and states the following:-
“I was unable to be on the hearing at 10 am on 06.10.04 because of my illness at that time. Please see attached copy from an ambulance.”
The document referred to appears to be a "tax invoice" from the Metropolitan Ambulance Service which refers to 6 October 2004 as the "transport date". No reference is made to the time of transportation nor indeed does it constitute a medical certificate setting out details of the illness of the applicant. In any event, a further notice of address for service was filed on 12 January 2005 referring to the address for service and name of the lawyer as the previous lawyers who had acted on various occasions for the applicant.
When the matter was heard on 12 January 2005, that is, the same date a notice of address referring to the solicitor was filed, the applicant appeared on his own behalf. The respondent, having considered the document from the Ambulance Service, was prepared to concede that the ambulance attended upon the applicant on 6 October 2004. That concession would appear to be reasonable and was consistent with information on the court file where a file note revealed a person purporting to be the applicant's wife advised the court that the applicant was not well and that she had called an ambulance. Despite that concession, the court then sought from the applicant any details of the incident, including the time when he was taken by ambulance to the hospital. He referred to a problem with his "kidneys for about a year" and that he had been receiving medical treatment. He remained in hospital on the day of the previous hearing for a period of four hours and he claimed to have attended the Alfred Hospital. He claimed that his solicitor was not able to attend court on 12 January 2005. Statements made by the applicant were not part of evidence, but rather statements made from the bar table.
On 12 January 2005 the court made the following orders:-
“1.The Applicant shall file and serve submissions in writing in support of the application for reinstatement by 5.00 pm on 21 January 2005 setting out grounds in support of the application for reinstatement, including submissions as to whether there is an arguable case and/or whether there is adequate reason for the non attendance of the applicant on 6 October 2004.
2.The Respondent shall file and serve a reply in writing on or before 28 January 2005, and thereafter the court shall determine the issue of reinstatement of the application upon the material then currently filed with the court.
3.Costs reserved.”
In addition to making those orders, the court advised the applicant that he could give more details about his condition and attach a medical certificate that should be given to the court and provided to the respondent.
Following the orders of the court, the applicant then provided the following:-
1.Applicant's Contentions of Fact and Law and Submissions in support of reinstatement; and
2.Affidavit of applicant sworn 31 January 2005.
The respondent filed an Outline of Submissions on 4 February 2005.
It is noted that the applicant's contentions of fact and law which were filed on 31 January 2005 purported to be both contentions in support of the application for substantial and final relief and submissions relating to the application to set aside the order made by the court in October 2004. The first respondent in the submissions filed 4 February 2005 reserves rights to file further submissions in relation to those contentions claimed by the applicant to support the substantive claim for relief.
Explanation for non‑appearance on 6 October 2004
In his affidavit sworn 31 January 2005 the applicant provides further detail concerning his medical condition. He does not provide any medical evidence to corroborate the assertions that he makes in that affidavit, which include the following:-
“2.I suffer a kidney ailment which flared early morning on 6 October 2004 and was such that I was not in a fit condition to attend the hearing that day.
3.My wife ... contacted the Federal Magistrates Court at about 9.30 a.m. and spoke with an officer in the registry section informing him that I was unable to attend. He advised my wife that the court would be in touch to advise me of the outcome.
4.Due to the pain I was in I called for an ambulance to take me to hospital. The ambulance attended but did not take me because I could not afford the costs.”
That extract from the affidavit appears to be at odds with at least the inference that one might be asked to draw from the earlier affidavit sworn 17 November 2004 which refers to the illness at the time and also attached the tax invoice from the Ambulance Service. The inference I would draw from that tax invoice is that the applicant was actually conveyed to hospital by ambulance as advised to the court by the applicant's wife. Clearly that inference in the light of the more recent affidavit is not a correct inference.
The applicant submits in relation to the explanation for non-appearance that the affidavit material provides a basis upon which the court could conclude that his non-appearance in October 2004 is "well explained such that it is in the interests of justice that the application be reinstated". It is further submitted that, "The applicant was prevented by severe pain caused by illness from attending court and also informed the court of his inability to attend for reasons of illness." Reference is further made to the failure of the applicant to provide further particulars to the court due to financial difficulties and inability to obtain legal advice.
The respondent submits that the applicant's affidavit sworn 21 January 2005 only provides a general description of his medical condition and he has not provided medical evidence to support the claims that he was suffering from a kidney ailment or that that ailment prevented his attendance at court.
Reference was made to inconsistencies in the affidavit material referred to earlier and in particular it was noted there was an inconsistency between the statement from the bar table from the applicant that he was in hospital for some four hours before being discharged compared to the affidavit sworn 31 January 2005 where he claims the ambulance did not take him to hospital because he could not afford the costs.
It was argued that in the light of the contradictory material, the court should not accept that the applicant was too ill to attend the hearing on 6 October 2004. It was submitted that the applicant has not provided the court with an adequate explanation for his nonattendance and hence the court should not exercise its power to set aside the order and reinstate the application.
When considering the reasons for non-appearance as one factor to take into account in determining whether to set aside an order, the court clearly has a discretion. That discretion must be exercised judicially. In the exercise of the discretion, it is appropriate to take into account the inconsistencies in the evidence which are apparent in the affidavit material and further evident when a comparison is made between statements made from the bar table by the applicant and material which ultimately appeared in the affidavit. In addition, it is relevant to note the lengthy chronology of events in this matter where there has been significant delay and in part it would appear significant disruption to the continuity of representation of the applicant. Whilst financial circumstances may explain the disruption to legal representation, there did not appear to be any significant explanation offered as to why the applicant's lawyers could not have attended the court on his behalf or indeed once having been represented, why the affidavit material could not include corroborative material by way of medical reports and other evidence to support the applicant's contentions he was unable due to illness to attend court. I have formed the view that the annexure of the report from the Ambulance Service to the first affidavit relied upon by the applicant was misleading. It would have been known to the deponent of the affidavit that the recipient of that document and the attached report from the Ambulance Service would have been led to an inference that the applicant had been conveyed to hospital by ambulance on the day of the court hearing. That inference was further reinforced by the telephone message received by the court on the day of the hearing which refers to the applicant's wife calling an ambulance and that the ambulance advised that they would need "to take him to the doctor".
I conclude in the circumstances and having regard to the evidence provided by the applicant, that he has failed to provide a satisfactory explanation for nonattendance on the scheduled hearing date. On that ground alone, I am satisfied that it would be inappropriate to set aside the orders made by the court on 6 October 2004.
Whether the Applicant has an arguable case
In the event that I am incorrect in rejecting the applicant's explanation for non-attendance, I would otherwise refuse to set aside the order made on 6 October 2004 on the grounds that in my view there is no arguable case and, further, it would be futile to effectively reinstate the application.
The applicant has sought to argue that there is an arguable case. An analysis is undertaken of the Tribunal's reasons for decision and substantive submissions are made in relation to denial of procedural fairness and breach of statutory obligation. However, in my view the critical issue when considering the application to set aside the judgment is to first consider whether or not the respondent's submission relating to res judicata and issue estoppel and, in the alternative, Anshun estoppel apply to the present application. It is noted that the parties had both filed their submissions earlier in relation to these issues and I accept for present purposes that the applicant relies upon those earlier submissions. It is argued that the previous application to the Federal Court sought review pursuant to Part 8 of the Migration Act 1958 (the Act) and s.39B of the Judiciary Act 2003. Reference was made to the limited grounds which may be relied upon in an application of that nature, including bad faith and that the application was dismissed. The present application, it was argued, seeks to rely upon grounds of jurisdictional error as constituting a ground for relief under s.75(b) of the Constitution and s.39B and 44 of the Judiciary Act 1903. It is argued that this application is therefore quite distinct in kind and source of jurisdiction from the previous application and that accordingly no issue of res judicata, issue estoppel or Anshun estoppel arises. The previous application, it was argued, was determined on other grounds.
The respondent argues that the dismissal in the earlier Federal Court proceedings by Gray J precludes the applicant from pursuing the proceedings and challenging the RRT decision. It is submitted that the principles of res judicata apply. The identity of the cause of action, it is submitted, is to be determined by matters of substance rather than by form (see BC v Minister for Immigration and Multicultural Affairs (2001) FCA 1669 (Sackville J) at [27], [29]). It was submitted that the proper application of the principles of res judicata, issue estoppel or Anshun estoppel require the court to dismiss the application in the light of the previous Federal Court proceeding. Reference was made to the decision of Weinberg J in Applicant M29/2001 v MIMIA [2003] FCA 1266.
In relation to the issue of res judicata the respondent referred to the authority of Merkel J in Thayananthan v MIMIA [2003] FCA 1054 at [33] as follows:-
“33 I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then S 75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding.”
It was submitted the present case involves a cause of action which in substance is the same as the one litigated before Gray J in the earlier Federal Court proceedings.
In the alternative, the respondent argues that the applicant is precluded by principles of issue estoppel from re-agitating any matters necessarily decided by the dismissal of the Federal Court application by Gray J. The applicant, it was submitted, is precluded by the principles of Anshun estoppel from relying on any matter which might have been brought forward as part of the Federal Court proceedings where that matter was so relevant to the subject matter of those proceedings that it would have been unreasonable not to rely upon it. Further, it is argued there are no "special circumstances" in the present case for the court to decline to apply the Anshun estoppel principles.
It is argued that any suggestion that the present application is distinct in kind and source of jurisdiction from the previous application or that the previous application was determined on other grounds from any raised in the present application should be rejected as misconceived or erroneous.
It was noted that the contentions before Gray J included grounds based on what were described as "standard form" that were "as broad as can be imagined". Further, the applicant had raised the issue that the RRT had not approached its task bona fide. Grounds asserted in the draft order nisi were similar to those grounds now sought to be relied upon and it was submitted are the same in substance and form.
In the alternative, it was submitted that if there are any different issues now sought to be raised by the applicant, those grounds should have been raised before Gray J and that this court should therefore apply the principles of Anshun estoppel.
In the respondent's submissions it was noted that when considering the application before the Federal Court, Gray J did not proceed to place reliance upon s.474 of the Act in circumstances where he found no errors had been made at all and that, accordingly, it was unnecessary to consider whether the errors asserted were jurisdictional errors.
In my view, the submissions of the respondent are correct. Whilst it is noted that the applicant now seeks to pursue as discrete grounds jurisdictional error, I am satisfied that res judicata applies as the application now sought to be agitated is in substance the same as the application heard and determined by Gray J. In the alternative, I accept that even if there are some new issues which were not the subject of a specific determination, including jurisdictional error, that in any event any arguments now sought to be advanced for and on behalf of the applicant could and should have been advanced before the Federal Court on the previous occasion and to that extent Anshun estoppel applies.
In my view, the respondent's submissions that in this case there is no possible utility in reinstating the application and that it would be futile to do so are correct. There are no prospects of success by reason of the operation of the doctrines of res judicata and issue estoppel and/or Anshun estoppel for the reasons given.
It should be noted that the present application seeks to assert very broad judicial review grounds which, apart from referring to bad faith or bias, could otherwise be described as jurisdictional error which should have been raised before the previous court. In circumstances where I am satisfied that the doctrine of res judicata and/or issue estoppel and Anshun estoppel applies, it follows that it would be futile to reinstate the application.
Conclusion
It is very clear to me from the chronology of events that the numerous procedures in this instance have resulted in a considerable delay between the date of the RRT decision and final determination by this court of the application. As I have indicated, I am satisfied that the issue was in fact considered appropriately by the Federal Court on a previous occasion and that res judicata and/or issue estoppel applies in any event. Failing that, I am satisfied that in the alternative Anshun estoppel applies. Although not pursued by the respondent, for my part I conclude that the process now sought to be undertaken by the applicant could only be regarded as an abuse of process. It is clear, as found by me earlier in this judgment, that I have rejected the proposed explanation for non-appearance in October 2004 and in any event otherwise found that to reinstate the application would be futile for the reasons stated.
It follows therefore that the application filed 17 November 2004 should be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 September 2005
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