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MIGRATION - Application to set aside consent orders - applicant signed consent orders on basis of advice received - conflicting advice received following the filing of the orders - consideration of grounds upon which the Court may set aside orders.

NAIJ v Minister for Immigration [2002] FMCA 225 (1 October 2002)

NAIJ v Minister for Immigration [2002] FMCA 225 (1 October 2002)
Last Updated: 7 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIJ v MINISTER FOR IMMIGRATION
[2002] FMCA 225



MIGRATION - Application to set aside consent orders - applicant signed consent orders on basis of advice received - conflicting advice received following the filing of the orders - consideration of grounds upon which the Court may set aside orders.



Capital Web Works Pty Limited v Adult Shop.com Limited & Ors [2002] FCA 389

Wati v Minister for Immigration & Multicultural Affairs (1997) 148 ALR 578

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 218

Applicant:
NAIJ



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 492 of 2002



Delivered on:


1 October 2002



Delivered at:


Sydney



Hearing Date:


1 October 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the amount of $1,500.

(3) Orders not to take effect until 21 days after the date of this judgment.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 492 of 2002

NAIJ


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter claims to have arrived in Australia on

8 October 2000. He held what he describes as a tourist visa or temporary resident visa valid for one month, which had been issued in Mumbai. On 13 October he applied for a protection visa (class XA sub-class 866). His application was considered by a Delegate of the Minister who, on 27 October 2000, declined to grant him protection. On 21 November 2000 he applied to the Refugee Review Tribunal for a review of the Delegate's decision. The Refugee Review Tribunal considered the matter.

2. On 28 March 2002 the Refugee Review Tribunal made a decision affirming the decision of the Departmental Delegate, refusing the grant of a protection visa. This information was provided to the applicant probably around 24 April 2002. On 16 May 2002 the applicant lodged an application with the Federal Court of Australia for review of the RRT decision, and on 5 July 2002 that application was transferred to this Court by order of Lindgren J. It was set down for hearing on Friday, 16 August 2002.

3. On 5 July 2002 the respondent was notified by the Federal Court that a Mr Asuzu, a barrister, had been appointed under the pilot scheme promoted by the Minister to assist the applicant. The applicant then advised the respondent that he wished to withdraw his application and on 12 August 2002 consent orders were filed with this Court dismissing the application and ordering that the applicant pay the respondent's costs agreed in the sum of $1000. That order was entered the next day, on 13 August 2002.

4. On 2 September 2002 the applicant took out a further application in this Court to set aside the orders made on 13 August. He also filed a short affidavit in support as required by the rules. That affidavit was in the following form:

"I have been lodged an application in Federal Court file number SZ492 of 2002. I have withdrew the above application based to apply an appeal in the High Court of Australia. When I went to the High Court they not considered my appeal unless a decision made from Full Federal Court. So I am requesting to be consider my application again in the Federal Court of Australia."

5. When the matter came before me on 1 October 2002 I asked the applicant to explain to me the reason why he was making this application. Although the applicant was not on oath I accept that what fell from him from the bar table as evidence of his understanding of the situation. However, I do note that in certain important respects there was no corroboration of that evidence.

6. It would appear that the applicant sought legal advice from time to time. He received some advice from Mr Asuzu. As best as I could understand the applicant he claims that Mr Asuzu suggested to him that he might easily obtain permanent residence in this country without a need to make an application for protection and suggested that the applicant withdraw the application for review to the Federal Magistrates Court.

7. I also understood the applicant to have said that he thought that Mr Asuzu's proposed fees for acting on his behalf were excessive and so he took other advice. This advice at first appeared to confirm what Mr Asuzu had said. Bearing this in mind he agreed to withdraw the application and sign the consent orders.

8. It would appear that after the applicant had withdrawn the application the advice he received from the immigration consultant was no longer so sanguine. He was told that there may be some difficulties in obtaining permanent residence in this country even though he is married to an Australian citizen he claims. During the course of his investigations the applicant was told that he could make an application to the High Court.

9. We have no evidence of the nature of that advice but I would assume that it was an application under section 75(v) of the Constitution. However, when the applicant went to the High Court to process this application he was told that the application could not be made unless it came by way of appeal from the Full Bench of the Federal Court. Having received that advice the applicant decided that he ought to withdraw his consent to the determination of these proceedings so that he could have on foot a claim which could be the subject of a Full Bench appeal and consequently an appeal to the High Court.

10. This history as provided by the applicant is obviously one that causes concern. In the absence of any evidence corroborating his story and in particular from the legal advisers who have been criticised by him, I make no comment or findings in relation to any of that advice. But even if everything which the applicant has told me is correct there still remains for me to decide whether or not the application fits within part 16 of the Federal Magistrates Court Rules where in rule 16.05(2) there is set out the grounds upon which the court may vary or set aside a judgment after it has been entered. These grounds are as follows:

a) The order is made in the absence of a party; or

b) The order is obtained by fraud; or

c) The order is interlocutory; or

d) The order is an injunction or for the appointment of a receiver; or

e) The order does not reflect the intention of the court; or

f) The party in whose favour the order is made consents.

11. There must be super-imposed upon these grounds the fact that the applicant consented to the orders which he now seeks to set aside.

12. It seems to me that none of the grounds set out in that rule are met in the application presently before me. Any failure which exists is the failure of the applicant or his legal advisers brought about by a not unexpected misunderstanding given the applicant's lack of fluency in the English language. One may be sympathetic to the applicant but there is no ground in the rules to set aside consent orders on the basis of sympathy alone.

13. In Capital Web Works Pty Limited v Adult Shop.com. Limited & Ors [2002] FCA 389 Nicholson J gave some consideration to the circumstances in which the Federal Court would set aside an order under the provisions of order 35, rule 7(2) of the Federal Court Rules which are in almost identical terms to those of the Federal Magistrates Court. His Honour noted that the discretionary power entrusted to the court by the order was exceptional and he referred to the decision of the full bench of the Federal Court in Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 where:

"The authorities there referred to stress the need for great caution and the existence of circumstances which are quite exceptional."

14. I do not think that from the evidence before me this case could fit within that category and I would be inclined to dismiss the application. I should also say that I have taken into consideration the applicant's prospects of success in any proceedings. It seems to me that there is absolutely no demonstrable error in the Tribunal's decision which would bring the applicant within the restricted grounds of review recognised by the Full Federal Court in NAAV v MIMIA [2002] FCAFC 228.

15. However, the applicant tells me that he has an appointment with the Legal Aid authorities on 14 October, some two weeks hence. In order to provide him with the best possible opportunity to articulate his case I propose to make the order dismissing the application but to stay it for a period of 21 days. A copy of this judgment will be provided to both the applicant and the respondent and the applicant can take it to the Legal Aid authority.

16. If the Legal Aid authority, having considered the applicant's circumstances, believe that there are grounds for re-opening this application then they are at liberty, on the applicant's behalf, to restore the matter to the list within 21 days of today's date. If the matter is not so restored then the judgment will take effect and the application will be dismissed with an order that the applicant pay the respondent's costs, which I assess pursuant to rule 21.10 in the sum of $1,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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