MZWND v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 373

FEDERAL COURT OF AUSTRALIA

MZWND v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 373

MZWND  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1530 of 2004

RYAN J
1 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1530 of 2004

On appeal from the Federal Magistrates Court

BETWEEN:	MZWND Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs, including any reserved costs, such costs to be taxed in default of agreement.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1530 of 2004

On appeal from the Federal Magistrates Court

BETWEEN:	MZWND Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE:	1 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal as of right from an order of the Federal Magistrates Court constituted by Riethmuller FM made on 30 November 2004 dismissing an application which had been made by the appellant to the Federal Magistrates Court on 18 June 2004.  The appellant does not have legal representation.  He has not complied with directions which I gave on 4 February 2005 requiring him to file and serve, on or before 18 March 2005, an outline of contentions and a supplementary appeal book, if any, comprising any material the appellant considered should have been included in the appeal book which, I had directed, should be filed and served by the respondent. There has been no appearance for or by the appellant today but he sent a facsimile message to the solicitor for the respondent which recites;

   ‘I am very sorry to inform you that I am not feeling well today.  I went to the doctors yesterday and I have enclosed a receipt of invoice for your kind information.  I am suffering from fever and a sore throat.  Sorry for the inconvenience.  Please accept my sincere apology.’

2. Annexed to that message was a copy of an invoice and receipt rendered apparently to the appellant by the Cheltenham Medical Centre in respect of a consultation on yesterday, 31 March 2005.  It is by no means clear whether that message was intended to support an application for an adjournment of today’s appeal, but, even if it were to be so treated, I am not disposed to grant an adjournment.  This is not the first time that this appellant has failed to appear when proceedings instituted by him have been brought on for hearing.  At the hearing before Kenny J in this Court on 12 May 2004, to which I shall refer later, he did not appear and her Honour, in the course of reasons published on that day, made these observations;

   ‘As already noted, he has not appeared at the hearing of his application.’

3. Her Honour then referred to attempts made by the solicitor for the respondent to contact the appellant, and continued;

   ‘As I understand it, on 22 March 2004, the Court also sent notification to the address the applicant provided to it.  As it turned out, it became clear that the applicant had notice of the hearing because this morning the Court received a facsimile message from the applicant stating that he “would not be able to attend the court because he is very sick”, and that he is “very sorry” for the inconvenience.  He also sought another date for the hearing.  The respondent opposed any adjournment.  If this facsimile message is to be regarded as an application for an adjournment, it should be refused.  In the circumstances, bearing in mind the matters deposed to by Mr Wee, the solicitor for the respondent, and notwithstanding the applicant's facsimile message, it is appropriate to hear and determine the application before the Court this afternoon.’

4. As I understand it, the appellant also failed to appear on the hearing before Riethmuller FM, from whose orders the present appeal has been brought.  For reasons substantially identical with those indicated by Kenny J, I consider that, if an intention to apply for an adjournment can be imputed to the appellant, that application should be refused and the appeal should be heard and determined today. 

5. In the proceedings in the Magistrates Court, by way of indicating the grounds relied on, the application, apparently prepared by the appellant himself, recited;

   ‘1I disagree with decision of the Refugee Review Tribunal and seeking an order to set aside the decision dated 28.11.2003.

   2The tribunal failed to take into account the relevant consideration and the decision was affected by an error of law.

   3The tribunal was made the decision wrongly and also made in bad faith.  Also breach of natural justice.’

6. The orders sought by the appellant in his application to the Federal Magistrates Court were;

   ‘1.       An order for setting aside the decision of the Refugee Review Tribunal.

   2.An order to remit the case to RRT for rehearing this matter before a different member.

   3.        My cost.’

7. The learned Federal Magistrate gave these reasons for dismissing the application;

   ‘3.This matter has already been the subject of litigation in the Federal Court of Australia. Kenny J on 12 May 2004 gave judgment in the matter, the judgment extending to some eight pages during which Kenny J traversed a large number of matters and the arguments raised by the applicant. There was no appeal from the decision of Kenny J.

   4.The applicant has been given notice that the respondent intended to bring an application today to strike out or dismiss the application on the basis that it discloses no reasonable course of action and/or is barred by res judicata, issue estoppel, Anshun estoppel or is an abuse of process of the court. An affidavit of service has been provided. The applicant was called and did not appear in court today.

   5.I can see no proper basis for this application before me today. The grounds of the application do not disclose any particulars of the real issue to be litigated, nor do they provide any indication of why it would be appropriate for the Federal Magistrates Court to consider a judicial review application with respect to the Refugee Review Tribunal after such an application has been heard and determined by a justice of the Federal Court of Australia.

   6.If the applicant believes the decision by Kenny J was in error, then the appropriate course is not to bring an application to a Federal Magistrate, but to lodge an appeal to the Full Court of the Federal Court.

   7.There is certainly no obvious error on the face of the Refugee Review Tribunal's decision, nor is there anything in the material that indicates any form of error. In the circumstances the application is ill-conceived and ought to be dismissed.

   8.        I therefore dismiss the application.

   9.I order that the applicant pay the respondent's costs fixed at $3,400.00. I note this is different to a number of the other dismissal applications that are on the list for today in that it involves a question of res judicata and there has been considerable extra work in an outline of submissions that was lodged in this matter.’

8. The orders of Kenny J of 12 May 2004 to which the learned Federal Magistrate there referred had been accompanied by reasons carefully reviewing the reasons for decision of the Refugee Review Tribunal (“the Tribunal), for affirming a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.  In the course of her reasons, Kenny J made these observations about the claims made in the originating process filed in the High Court, which had been remitted to this Court by Hayne J on 6 February 2004;

   ‘18      The draft order nisi, which is exhibited to an affidavit sworn by the applicant on 8 December 2003, makes what have become standard allegations to found judicial review.  For present purposes, the applicant relevantly alleges that the Tribunal’s decision was affected by jurisdictional error.  This, if established, would support review by this Court, notwithstanding s 474 of the Migration Act 1958 (Cth) (“the Act”).

   19       Neither the draft order nisi, which was initially filed in the High Court, nor the applicant’s contentions of fact and law, which were filed in this Court, particularise any of the alleged errors.  The draft order nisi and these contentions do no more than restate the merits of the applicant’s claim for a protection visa.  Thus in his contentions, the applicant asserts that he “dispute[s] the decision of the Tribunal” and makes a number of factual assertions about his own situation and the situation in India generally.  In these contentions, he states his disagreement with conclusions drawn by the Tribunal in relation to a number of matters, including the extent and location of communal violence within India and the Tribunal’s conclusions about the incidents described by him.  He also affirms “that the Tribunal is wrong when it says that [he] was not a person of interest to the BJP for any reason”.’

9. It will be observed that the application to the Federal Magistrates Court which led to the present appeal also invoked “error of law” by which the appellant presumably meant to convey jurisdictional error.  Apparently by way of further particulars of the requisite jurisdictional error, he added that the decision of the Tribunal had been made in bad faith and also in breach of natural justice.  However, no details have been supplied of any conduct by the Tribunal which is said to constitute either of those species of jurisdictional error.  It is no answer to the learned Federal Magistrate's application of the doctrine of res judicata, issue estoppel and what is called Anshun estoppel to say that the proceedings before Kenny J had been initiated in the original jurisdiction of the High Court under s 75(v) of the Constitution whereas the proceedings under appeal were instituted by invoking the jurisdiction of the Federal Magistrates Court. As Merkel J pointed out in Somanader v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 670 at 684, [63];

   ‘63 Section 75(v) gives a right to jurisdiction only, not a right to the specified remedies. The remedies must be sought in public law. The cause of action is firmly grounded in the pre-existing substantive law. While certain common law grounds of review remain open under s 75(v), the grounds available under Pt 8 of the Act to impugn a decision of the RRT require that, in general, the entitlement to relief is to be determined by the same principles of substantive law as are applicable to an action under s 75(v). Relevantly, for present purposes the jurisdictional error upon which the applicants are entitled to succeed arises on the basis of the same substantive law that is applicable in the proceeding under s 75(v). Thus, while there need not be a coincidence of causes of action in all cases, in the present case the same cause of action is relied upon in the two proceedings.

   64 This co-incidence is, in a sense, dictated by the orders of Hayne J remitting to the Federal Court that part of the matter in which the grounds of relief sought reflected grounds under Pt 8 of the Act (in accordance with the limitation of the Federal Court’s power to review under s 485(3)) and otherwise adjourned the application, in respect of any wider grounds, to a date to be fixed. Thus, his Honour’s order ensured that the grounds relied upon before the Federal Court would be no wider than those able to be relied upon under Pt 8.

   65       Accordingly, for the above reasons there is a commonality of the causes of action on the basis of each of the various tests discussed above.  The substratum of facts giving rise to the right to 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.  The right to relief in each case is informed by the same substantive law principles.  It is not contended that the parties to the two sets of proceedings differ in any material respect.  Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.’

10. His Honour then proceeded to explain his reasons for concluding that even if res judicata did not arise, “issue estoppel would still preclude the applicants from obtaining the relief sought”.  In the draft order nisi which the present appellant presented to the High Court, there were nine broad, unparticularised grounds of attack on the decision of the Tribunal, namely that the decision;

    ‘(a)was made without jurisdiction or is affected by an error of jurisdiction;

    (b)is affected by an error of law;

    (c)is so unreasonable that no reasonable decision maker could have made it;

    (d)is based on finding for which there was no evidence or other material;

    (e)takes into account irrelevant considerations

    (f)fails to take into account relevant considerations

    (g)was an improper exercise of power conferred by the Migration Act (1958)

    (h)was otherwise contrary to law

    (i)was made in bad faith’

11. Similarly, par 2 of the draft order nisi contained the following three broad, unparticularised grounds of attack on the decision of the Tribunal:

    ‘Further, or in the alternative, the Second Respondents

    (a)      failed to accord the applicant natural justice;

    (b) failed to follow the procedures required by the Migration Act;

    (c)       asked the wrong the question or misconceived her duty’

12. It can therefore be seen that, as far as the present application to the Federal Magistrates Court properly disclosed grounds of review of the Tribunal’s decision, they were mirrored by pars 1(b), 1(f) and 1(i) and 2(a) of the draft order nisi in the High Court.  Accordingly, by parity of reasoning with that outlined in Somanader (supra), I have been led to conclude that the appellant is precluded by res judicata or issue estoppel from pursuing the same grounds of review as were effectively denied to him by the orders of Kenny J of 12 May 2004. 

13. It follows that the learned Federal Magistrate was correct in refusing to entertain the later application to that Court and the appeal from that refusal must be dismissed with costs. Accordingly, the orders of the Court are:

    1.        That the appeal be dismissed.

    2.The appellant pay the respondent’s costs, including any reserved costs, such costs to be taxed in default of agreement.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            1 April 2005

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	Mr B Wee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 April 2005
Date of Judgment:	1 April 2005