M67 v The HON. Phillip RUDDOCK and Minister for Immigration
[2004] FMCA 79
•20 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M67 v THE HON. PHILLIP RUDDOCK & MINISTER FOR IMMIGRATION | [2004] FMCA 79 |
| MIGRATION – Application for review of decision of decision of the Refugee Review Tribunal – where the applicants did not appear at the hearing – res judicata – issue estoppel – application dismissed. |
Migration Act 1958 (Cth), s.486A
Judiciary Act 1903 (Cth), s.39B
Australian Constitution 1901 (Imp), s.75(v)
VAAK v The Minister
Somanader v Minister for Immigration and Multicultural Affairs (2000) 78 ALR 677
S/157 v Commonwealth (2003) 195 ALR 24
Makoul v Barnes (1995) FCR 572
Blair v Curran (1939) 62 CLR 464
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR
| Applicants: | M67/2002 |
| Respondent: | THE HON. PHILIP RUDDOCK & MINISTER FOR IMMIGRATION |
| File No: | MZ 345 of 2003 |
| Delivered on: | 20 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 20 February 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicants: | Nil |
| Solicitors for the Applicants: | Nil |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application be dismissed.
That the applicants pay the respondent's costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 345 of 2003
| APPLICANTS M67/2002 |
Applicants
and
| THE HONOURABLE PHILIP RUDDOCK & MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before me is brought by the applicant who is a national of Sri Lanka and of Tamil ethnicity. He arrived in Australia on 12 December 1999 on a false Papua New Guinea passport. He was accompanied by his spouse, the second applicant, who held a valid Papua New Guinea passport. On 18 January 2000 he lodged an application for a protection visa. The application included his spouse who did not make any separate claims under the Refugees Convention. On 25 May 2000 a delegate of the first respondent, who I will refer to as the respondent, refused to grant a protection visa.
The applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate's decision by application made 16 June 2000. The Tribunal handed down its decision on 14 December 2001 and affirmed the delegate's decision. On 20 December 2001 the applicant applied to the Federal Court seeking judicial review of the decision pursuant to section 39B of the Judiciary Act 1903 (Cth).
These proceedings before the Court were recorded as an acronym rather than his name in accordance with the legislation and formed the matter VAAK v The Minister. On 9 May 2002, North J made an order by consent that the application for an order for review of the decision of the Refugee Review Tribunal dated 22 November 2001 was dismissed and the applicant agreed to pay the respondent's costs fixed at $1500.
The present proceeding were instituted by an application to the High Court by the lodging of a draft order nisi affidavit on 20 May 2002. The matter was subsequently remitted by the High Court to the Federal Court for hearing and ultimately transferred by the Federal Court to the Federal Magistrates Court which is the manner in which the matter comes before me today.
The applicant has not appeared. The time that the present proceedings were commenced he had a solicitor acting for him but on 1 July 2003 a Notice Ceasing to Act was filed by his solicitor. That notice attached a letter from the applicant indicating that he no longer required the services of his solicitor. The address of the applicant is an address in Queensland where he still resides.
Yesterday a letter was received by the Court written to the registrar of the Federal Magistrates Court from the applicant. The letter says as follows:
In reference to the above, I am unable to attend tomorrow (20/2/04) hearing because of an unforeseen illness.
I trust that your good self will make alternative arrangements and notify me of a later date.
It is signed by the applicant. The letter attaches to it a medical certificate from the Upper Mount Gravatt Day and Night Medical Centre which says:
This is to certify that (the applicant) will be unable to attend work from 19/2/04 to 20/2/04 because of a medical condition.
It is signed by a doctor from that clinic. No prior notification was given to the respondent that an adjournment would be sought, and in light of the letter, I will treat it as an application for an adjournment.
I do not propose to adjourn the matter for two reasons. The first is that I entertain doubts as to the question of whether the applicant ever intended to appear to prosecute the application. The applicant is and has been living in Queensland for some considerable time. The letter to his solicitor indicating he does not require their services any further relies upon his financial position to support the fact that he is no longer able to afford a solicitor. If the applicant had an unforeseen illness, as is suggested, but had intended to travel to Melbourne for the purpose of appearing, he would doubtless have already had arrangements for his travel in place long before yesterday. There is no reference in his letter to his having made arrangements and cancelled them, nor any suggestion that he had an intention to attend.
Secondly and perhaps more importantly, the respondent has raised a number of impediments to the success of the application. Leaving aside the merits of the case, those impediments include the fact that the application is out of time and the effect of the dismissal of the earlier Federal Court proceedings. At least in the case of the latter it is a question of law to be determined by the Court. When considering that issue, that is, the effect of the earlier Federal Court proceedings, I do not consider that the applicant would be prejudiced by not being present in person at this hearing.
I do not intend to deal with this matter on the basis of the time limits and the fact that the application is out of time. That is partly because that is a discretionary matter in which it would be reasonable to have some input from the applicant, and secondly, because the 35-day limitation period for the commencement of actions in the High Court arises from section 486A of the Migration Act 1958 (Cth) (the Act). Section 486A, however, applies only to privative clause decisions. In light of the interpretation given to that phrase in S/157 v Commonwealth (2003) 195 ALR 24, it is impossible to determine whether the proceedings barred by section 486A without first determining whether a decision was affected by a jurisdictional error. If it was not affected by such an error, then section 486A requires the application to be dismissed.
The question of whether the decision was affected by jurisdictional error goes to the merits of the application and the applicant is not present to put his arguments before the Court in relation to the merits. If I am wrong in the matters on which I intend to determine this matter, then I would not wish the applicant to be barred from having the opportunity to argue the merits if he were given that opportunity.
I therefore intend to deal with this matter on the basis of the respondent's submission that the earlier Federal Court proceedings create a bar to the present proceedings by the applicant on the basis of the doctrine of res judicata and issue estoppel.
Although the proceedings dismissed by North J were done by consent, orders that are made by consent are as binding as those pronounced after a contest. They can therefore give rise to a plea of res judicata and issue estoppel as a bar to the litigation on the same issues in subsequent litigation. In Makoul v Barnes (1995) FCR 572 the Full Federal Court has said at 582:
It seems now to be clear that a judgment entered by consent is as much a judgment as one obtained after a full argument, and as such, capable of founding an estoppel. Thus, provided it is clear what the issues involved in the consent order may be, those issues will be taken as having been conclusively determined so as to prevent their being raised in subsequent proceedings.
Res Judicata
In Somanader v Minister for Immigration and Multicultural Affairs (2000) 78 ALR 677, Merkel J held that the dismissal by consent of proceedings in the Federal Court prevented the applicants from raising the same grounds in subsequent proceedings brought pursuant to section 75(v) of the Constitution that have been remitted to the Federal Court. His Honour held that in determining whether res judicata applies the primary question is whether the cause of action in the later proceedings is the same as that which was litigated in the earlier proceedings. For the purposes of the res judicata doctrine, the term "cause of action" is to be understood by reference to the substance of the action and is distinct from its form.
The matter before Merkel J in Somanader was, in relation to this point, on all fours with the present case. In Somanader, Merkel J held that he fact that the later proceedings took the form of an application for constitutional writs, as distinct from an application under Part 8 of the Migration Act, did not prevent the cause of action in the later proceedings being in substance identical to the cause of action determined in the earlier proceedings.
When North J dismissed the Federal Court proceedings by consent that ordered determined that the errors alleged in that proceeding could not be established. The errors were framed widely and included the complaint the Tribunal had erred in applying the meaning of "persecution" and that it erred in relation to its findings concerning the applicant's claims to have been detained and mistreated. The applicant is bound by the consent judgment. While the second applicant was not a party to the proceeding, her rights in the litigation are contingent upon those of the first applicant's and if his application fails hers must also fail because she does not claim to be entitled to a protection visa unless he receives such a visa.
I have considered the matters raised in the present application, which are set out in paragraphs 15 to 18 of the Court book, and those in the application to the Federal Court in proceedings 1290 of 2001. There is a commonality of the causes of action and the substratum of facts 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. Right to relief in each case is informed by the same substantive law principles. In my view, the parties to the two sets of proceedings do not differ in any material respect. The dismissal by consent finally determined the issue of whether the Tribunal committed an error amounting to a constructive failure to exercise jurisdiction or an error in law in the interpretation and application of the convention in the present case.
I am also satisfied that the present proceedings must fail because additionally of issue estoppel.
The explanation of the distinction between res judicata and issue estoppel, as explained by Dixon J in Blair v Curran (1939) 62 CLR 464 and adopted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR at 589 says:
In the first, the very right or cause of action claimed or put in suit as in the former proceedings passed into judgment so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied, the existence of which is a matter necessarily decided by the prior judgment, decree or order.
The doctrine of issue estoppel, however, will only apply if the issue ruled upon by a Court in the earlier proceeding was fundamental to the ultimate decision in the case. The matters raised in the previous Federal Court proceedings were, in my view, in substance the same as those raised in the present proceedings and the law in fact that are fundamental to the present proceeding have already been determined against the applicant.
The dismissal orders conclusively determine that the Tribunal had jurisdiction to make the decision and made no error of law in its decision. The applicant's current application for review based on the same grounds is accordingly barred by issue estoppel. The respondent relies thirdly upon Anshun estoppel, which in my view in the circumstances is unnecessary to consider.
For those reasons I have concluded that the consent dismissal of the applicant's original proceedings in the Federal Court to review the decision of the Tribunal disentitled the applicants to claim relief by way of judicial review and prerogative relief on the same grounds under section 75(v) of the Australian Constitution. Accordingly the application must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 23 February 2004
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