FEDERAL COURT OF AUSTRALIA Applicant M67/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 76 MIGRATION – leave to appeal – applicant failed to appear at hearing before Federal Magistrate – no satisfactory reason given for failure to appear at hearing – no reasonable prospect of success – application for leave to appeal dismissed Federal Magistrates Court Rules 2001, r 13.03A, 16.05(2)(a) Federal Court Rules 1979 (Cth), O 19 r 2(2) Federal Court of Australia Act 1976 (Cth), s 24(1A) VBAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1614 discussed Hall v Nominal Defendant (1966) 117 CLR 423 referred to NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 referred to Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to Energex Limited v Alstom Australia Limited [2005] FCAFC 215 referred to Applicant M67 of 2003 v Minister for Immigration [2005] FMCA 1347 referred tp NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79 referred to NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 referred to Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 discussed Thayananthan v MIMIA [2003] FCA 1054 referred to Blair v Curran (1939) 62 CLR 446 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to APPLICANT M67/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL VID 1234 OF 2005 KENNY J 10 FEBRUARY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1234 OF 2005 BETWEEN: APPLICANT M67/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: KENNY J DATE OF ORDER: 10 FEBRUARY 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondents costs of and incidental to the application. 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 1234 OF 2005 BETWEEN: APPLICANT M67/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: KENNY J DATE: 10 FEBRUARY 2006 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a citizen of the Russian Federation. He arrived in Australia on 23 October 1998. On 19 November 2001, he applied for a protection visa (class XA) while in immigration detention (although he is not currently in detention). A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused that application. On 17 January 2002, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. 2 Before the Minister's delegate and the Tribunal, the applicant claimed that he had been subject to beatings and intimidation after he reported corrupt practices at a power plant. The Tribunal described the applicant's claims as "far fetched and implausible". The details of the applicant's claims are discussed by Gray J in VBAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1614 ("VBAF"). Accordingly, there is no need to repeat them here. 3 On 14 February 2002, the applicant filed an application in this Court for review of the Tribunal's decision. Gray J dismissed the application in a judgment delivered on 10 December 2002: see VBAF. His Honour noted that the application "was apparently based on a standard form, stating a number of grounds for review of the Tribunal's decision": VBAF at [14]. The applicant provided no particulars of any alleged errors on the part of the Tribunal. At the hearing, the applicant's submissions focused on the Tribunal's fact finding: see VBAF at [16]-[23]. His Honour found that the applicant had not established any basis upon which the Tribunal's decision might be set aside. 4 On 24 April 2003, the applicant initiated a new proceeding by filing an application in the High Court of Australia for an order nisi for writs of prohibition, certiorari and mandamus and an injunction including an application for extension of time. This application was remitted to the Federal Court and then to the Federal Magistrates Court. The applicant failed to appear when the matter came before the Federal Magistrates Court on 6 October 2004. A Federal Magistrate then dismissed the application under Rule 13.03A of the Federal Magistrates Court Rules 2001. 5 On 17 November 2004, the applicant filed an application seeking another hearing date. The Federal Magistrate took the application to be made pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules which allows the court to set aside an order made in the absence of a party. In support of this application, the applicant provided a document purporting to be a tax invoice from an ambulance service dated 6 October 2004. 6 The learned Federal Magistrate found two grounds for dismissing the application to set aside his earlier order. First, he found that the applicant failed to provide an adequate explanation of his absence on 6 October 2004. Secondly, he found that the underlying application for an order nisi had no prospect of success. With respect to the first ground, his Honour noted inconsistencies in the applicant's story. Most significantly, although the applicant had first claimed that the ambulance took him to hospital, he later claimed that he had not taken an ambulance because of the cost. With respect to the second ground, his Honour found that res judicata applied as the application was in substance the same as that heard by Gray J. In the alternative, McInnis FM found that issue estoppel and/or Anshun estoppel would apply. In the latter regard, his Honour held that the applicant's arguments could and should have been advanced before Gray J. 7 On 7 October 2005, the applicant filed a notice of appeal against the Federal Magistrate's decision given on 16 September 2005. He presents four grounds of appeal: "1. That the learned Federal Magistrate should have accepted the appellants [sic] explanation for not attending on the schedule hearing date for his application for orders nisi. 2. That the learned Federal Magistrate erred in being satisfied that res judicata applies. 3. That the learned Federal Magistrate erred in finding that Anshun estoppel applies. 4. That the learned Federal Magistrate erred in finding that it would be futile to reinstate his case." The applicant filed an affidavit with his notice of appeal. In this affidavit he stated that he seeks leave to appeal against the judgment of the Federal Magistrates Court given 16 September 2005. On 24 November 2005, the applicant filed a document headed, "Application for Leave to Appeal", which also sought an order under O 52 r 5(3) of the Federal Court Rules ("the Rules"). 8 I consider the matter upon the assumption that the applicant made his application for leave to appeal within the time permitted by O 52 r 5(2) of the Rules, by way of his affidavit filed on 7 October 2005. This approach is in the interest of justice as the applicant is self-represented. 9 The matter came on for hearing on 25 November 2005 but was adjourned at the applicant's request because the applicant stated that he wanted to obtain the assistance of counsel. The matter again came on for hearing today. The applicant did not appear. The respondent filed two affidavits, sworn by her solicitor 24 November 2005 and 10 February 2006. Those affidavits make it clear that the Minister has served all relevant documents on the applicant and confirmed the date of today's hearing. The Applicant also received notice of this adjourned hearing date at the hearing of 25 November 2005. Given this notice, and the absence of any prior explanation from the applicant, the Court proceeded to hear the matter in the applicant's absence. The respondent relied on her submissions filed in the Court earlier. 10 The judgment of 16 September 2005 was interlocutory in nature. "[A]n order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only": Hall v Nominal Defendant (1966) 117 CLR 423 at 440 per Taylor J. Under this test, the 16 September 2005 judgment is interlocutory: see NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J (reaching the same conclusion with respect to a dismissal of a very similar application for reinstatement). As the judgment is interlocutory, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 11 In Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ("Décor"), the Full Court of this Court established a two-part test for the granting of leave to appeal an interlocutory judgment. Under this test, leave should be granted if: (1) the decision is attended with sufficient doubt to warrant being reconsidered by an appellate court; and (2) substantial injustice would result if the leave were to be refused supposing the decision to be wrong: see also Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [49]. 12 It is clear that the applicant cannot satisfy the test established in Décor. While the applicant might be able to satisfy the second prong of the test, he is unable to satisfy the first part of the test. The decision of the Federal Magistrate is not attended with sufficient doubt to warrant being heard on an appeal. 13 When considering the application to set aside his earlier order, the Federal Magistrate required the applicant to demonstrate a satisfactory reason for failing to appear and that he had an arguable underlying case: see Applicant M67 of 2003 v Minister for Immigration [2005] FMCA 1347 ("M67") at [23]-[25]. This was the correct test: see eg MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] per North J. Moreover, the applicant has not shown any basis for concluding that there might be any appealable error in his Honour's finding that the applicant satisfied neither prong of this test. 14 With respect to the first requirement, it was clearly open to the Federal Magistrate to find that the applicant had failed to provide a satisfactory explanation for his non-appearance on 6 October 2004. As his Honour noted, there were serious inconsistencies in the applicant's story. In support of his application to set aside the order of 6 October 2004, the applicant swore an affidavit on 17 November 2004 stating that he was "unable to be on the hearing at 10am on 06.10.04 because of my illness at that time." He attached a document purporting to be a tax invoice from the Metropolitan Ambulance Service, which referred to 6 October 2004 as the "transport date". The matter was heard on 12 January 2005 and the applicant made statements from the bar table claiming that he had attended Alfred Hospital on 6 October 2004 for a problem with his kidneys. The Federal Magistrate advised the applicant that he would need to provide more details of his condition and ordered that the applicant file further submissions. The applicant subsequently filed written submissions and an affidavit sworn 31 January 2005. In this affidavit he affirmed that an ambulance attended on 6 October 2004 but did not take him to the hospital because he could not afford the costs. 15 As the Federal Magistrate noted, the affidavit of 31 January 2005 was inconsistent with the applicant's claim from the bar table on 12 January 2005 that he was in hospital. Moreover, his affidavit of 17 November 2004, together with the purported tax invoice, created a clear inference that the applicant had been conveyed to hospital by ambulance. His Honour found that it would have been known to the deponent that the affidavit would create such an inference. There is no error shown in this approach. Accordingly, the Federal Magistrate was entitled to conclude that the applicant had presented inconsistent and misleading evidence in support of his failure to attend the hearing. In these circumstances, it was open to his Honour to find that the applicant had not provided an adequate explanation of his absence on 6 October 2004. His Honour's decision is consistent with earlier decisions of this Court: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79 at [1]-[7] and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10]. 16 Further, the applicant has shown no error in the Federal Magistrate's conclusion that the applicant did not have an arguable case. This provided a separate ground for refusing to set aside his order of 6 October 2004. 17 The draft order nisi submitted to the High Court sets out a lengthy list of general grounds including bad faith, failure to accord natural justice and error of law. There are no particulars. The applicant's first application to the Federal Court also set out an equally broad list of grounds. Gray J remarked that these grounds for review were "as broad as can be imagined": VBAF at [14]. In this situation, there is no appealable error shown in the Federal Magistrate's conclusion that res judicata applied because the two proceedings are in substance the same. 18 In Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, Merkel J discussed the tests to be applied for res judicata and issue estoppel in cases where an application for judicial review is followed by an application for constitutional writs. He noted, at 688, that "the primary question is whether the cause of action in the later proceeding is the same as that which was litigated in the former proceeding." In determining that question the Court should focus on the substance of the proceedings rather than their form: Somanader at 689-90; see also Thayananthan v MIMIA [2003] FCA 1054 at [33]. In Somanader at 692, Merkel J concluded that res judicata applied because there was a "commonality of the causes of action", since 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"; and the "right to relief in each case is informed by the same substantive law principles". This reasoning can be applied in this case. Its application leads to the same outcome as Somanader. 19 It was also open to the Federal Magistrate to conclude that, if res judicata did not apply, then issue estoppel would preclude the applicant from obtaining the substantive relief that he sought in the constitutional writ proceeding: see Blair v Curran (1939) 62 CLR 446 at 532. When regard is had to the applications filed by the applicant in the two proceedings, it is apparent that the order for dismissal made by Gray J finally disposed of the subject of the litigation, which was the broad unparticularised grounds of review stated in the application before him. These grounds covered the grounds relied on in the constitutional writ proceeding. Accordingly, it was open to his Honour to conclude that issue estoppel barred the application in the later proceeding. The fact that a later action takes the form of an application for constitutional writs does not prevent res judicata or issue estoppel from applying following the disposition of an earlier judicial review proceeding: see Somanader at 692-3. 20 In summary, it is clear that the present case is, in substance, the same as that litigated before Gray J. The applicant has identified no grounds of review in this action that were not agitated before Gray J. 21 In the circumstances it is unnecessary to consider the application of Anshun estoppel, although there is nothing shown to indicate that his Honour was in error in holding that "in the alternative Anshun estoppel applies": see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 22 As the judgment of the learned Federal Magistrate is not attended by sufficient doubt, the Court would not grant leave to appeal: see Décor. Accordingly, I would order that the application for leave to appeal be dismissed. The applicant should pay the respondent's costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 10 February 2006 Solicitor for the Applicant: The applicant failed to appear Counsel for the Respondent: Mr G Carroll Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 February 2006 Date of Judgment: 10 February 2006