MZXPC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT INTRODUCTION 1 The first respondent has objected to the competency of an appeal filed by the appellant against a decision of a Federal Magistrate given on 26 April 2007. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 2 April 2004 affirming a decision of a delegate of the first respondent not to grant the appellant a protection visa. 2 The appellant did not appear at the hearing today. The first respondent filed an affidavit of service sworn on 20 July 2007 by Mihajla Mima Kocijan. This made it plain that the first respondent had forwarded the requisite documents to the address for service the appellant had provided. Further, my Chambers had also sent another notice of today's hearing by registered post to a second address provided by the appellant to the Court Registry. My associate has also tried unsuccessfully to telephone the appellant over the past week. There has been no communication from the appellant over recent weeks. Having regard to these matters, the procedural history of the matter as related below, the apparent impossibility of the appellant's case, and the appellant's failure to make any attempt to explain his absence from the hearing today, the Court proceeded with the hearing in the appellant's absence. 3 The first respondent's objection to competency is supported by an affidavit sworn on 21 June 2007 by the first respondent's solicitor, Ms Udara Asangi Jayasinghe. This affidavit details the extensive procedural history of the proceeding. 4 On 22 May 2003, the delegate refused to grant the appellant a protection visa. The Tribunal made a decision as long ago as 11 March 2004 to affirm the decision of the first respondent's delegate to refuse the appellant a protection visa. This decision was handed down on 2 April 2004. The Tribunal found that the appellant was an Indian citizen, who claimed to be a Hindu. He had applied for a protection visa on 20 March 2003, claiming to have a well-founded fear of persecution because of his dealings with an extremist communist group known as the Naxalites. The appellant claimed that he would be killed by the Naxalites if he returned to India. He also claimed to fear religious persecution. The Tribunal did not accept the appellant's claims in either regard. 5 On 3 May 2004, the appellant applied for an order of review in the Federal Magistrates Court. The Federal Magistrates Court dismissed this application on 29 April 2005 and the appellant was ordered to pay the first respondent's costs fixed in the amount of $6,300. The Magistrate summed up her reasons by saying: "In essence the applicant wishes to challenge the merits of the Tribunal's decision which is not open to this court…The Tribunal made findings of fact uniquely within its jurisdiction and such findings of fact were supported by probative material before it. The Tribunal's conclusion that the applicant's claims disclose no Convention nexus was open to it on the evidence before it and discloses no error of law, let alone jurisdictional error. I accept the respondent's submission that the applicant has demonstrated no proper basis for criticism of the process adopted by the Tribunal or its decision. Accordingly the application should be dismissed with costs." 6 On 12 May 2005, the appellant filed a notice of appeal from the Federal Magistrates Court. This appeal was heard on 1 August 2006. Jessup J dismissed the appeal and ordered that the appellant pay the first respondent's costs. His Honour gave detailed reasons for judgment. The appellant subsequently filed an application in the High Court for special leave to appeal. On 8 February 2007, Gummow and Heydon JJ dismissed this application. 7 In the same month, on 23 February 2007, the appellant applied again to the Federal Magistrates Court for review of the Tribunal's decision. The solicitors for the first respondent subsequently wrote to the appellant, advising that the appellant was, in their view, estopped from bringing the application. On 26 April 2007, the Federal Magistrates Court dismissed the appellant's review application and ordered that he pay the first respondent's costs in the sum of $500. The appellant filed a notice of appeal in this Court appealing from the judgment of the Federal Magistrates Court on 15 May 2007. This is the appeal that is the subject of the first respondent's notice of objection to competency. 8 The grounds of the appellant's notice of appeal read as follows: a. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction and is a denial of natural justice. PARTICULARS I had telephoned the Federal Court Registry on Thursday 26 April, 2007 just after 9 am and informed them that I was ill and would be attending a doctor. Therefore, I was unable to attend the hearing set for 26 April 2007 and that I would need an adjournment. The Court is being very unfair by not granting me an adjournment. I also say that I have a good case because I say that the Tribunal is clearly wrong when it says that there is no nexus between my fear of persecution on return to India and the Refugees Convention. In my original claims I stated that the police became aware of me having contact with the Naxalites and threatened to charge me for having approached the Naxalites. The police were of the belief that I supported the Naxalites in their political beliefs. I was in fear of the police because of this imputed political opinion. 9 In the notice of objection to competency, which is dated 22 May 2007, the first respondent objected to the competency of the appeal on the basis that the decision of the Federal Magistrate was interlocutory and could not be the subject of an appeal without leave. At the hearing today, Ms Jayasinghe, who appeared for the first respondent, also submitted that the appeal was incompetent because it was either the subject of res judicata or issue estoppel. DISCUSSION 10 The judgment that the appellant seeks to appeal was apparently made under O 13.03A of the Federal Magistrates Court Rules. Order 13.03A(c) permits the Court to dismiss an application if a party fails to appear at a hearing. The judgment is in the nature of an interlocutory judgment: see recently, for example, MZXMD v Minister for Immigration and Citizenship [2007] FCA 769 at [7] per Weinberg J and the cases there cited. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the appellant requires leave to appeal. The appellant has not sought leave, notwithstanding that the defect is apparent from the first respondent's notice of objection to competency. I note too that leave must be sought within 21 days of the pronouncement of the interlocutory decision or an extension of time sought in which to seek such leave. The appeal is incompetent in the absence of a grant of leave. 11 Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15]. Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal. 12 For these reasons, at the hearing of this matter on 23 July 2007, I ordered that the notice of appeal be struck out as incompetent. I also accepted the first respondent's submission that the appellant pay the first respondent's costs fixed in the sum of $1,500.