Badoui Al Badoui v Minister for Immigration

[2006] FMCA 1064

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BADOUI AL BADOUI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1064

MIGRATION – Application for reinstatement of application – application dismissed by consent – applicant claims he did not understand the consequences of withdrawal from the matter – dismissal by consent is as “efficacious” as orders made by a Court after a hearing – Court does have the power to set aside consent orders – even if orders made by consent were set aside the applicant would not succeed – impermissible merits review – no jurisdictional error – not in the interests of justice to set aside orders made by consent – application dismissed.

Migration Act 1958, ss.351, 417, 477(1A), 483A
Migration Litigation Reform Act 2005 (Cth), s.477(1)
Judiciary Act 1903, s.39
Migration Regulations 1994, Regulation 1.03

Somanader v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1192
Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395

Applicant: BADOUI AL BADOUI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2723 of 2004

Judgment of: Nicholls FM

Hearing date: 17 July 2006

Date of Last Submission: 20 January 2006

Delivered at: Sydney

Delivered on: 17 July 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Solicitor for the Respondents: Ms. C. Gray

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Migration Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $1,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2723 of 2004

BADOUI AL BADOUI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 20 January 2006 seeking, in effect, that orders made on 22 April 2005, by consent, in dismissing an earlier application filed by the same applicant, be set aside. The earlier application filed on 2 September 2004 sought review of the decision of the Migration Review Tribunal (“the Tribunal”) handed down on 10 July 2002 which affirmed the decision of a delegate of the first respondent to refuse a Family (Residence) (Class AO) visa to the applicant.

2. The relevant history in this matter, as derived from the Court Book (“CB”) filed on 12 November 2004 in relation to the earlier application, a Supplementary Court Book (“SCB”) filed on
   8 December 2004, and the Court’s file, is:

   1)The applicant, who is a national of Lebanon, arrived in Australia on 15 April 1996.

   2)The applicant applied for a Family (Residence) (Class AO) visa on 11 April 1997. The applicant’s visa application is reproduced at CB 1 to CB 33, with an attached statement at CB 34 to CB 26.

   3)The decision of the Minister’s delegate to refuse the visa application was made on 16 December 1999 (see decision record at CB 64 to CB 69).

   4)The applicant lodged an application for review to the Tribunal on 12 January 2000 (CB 70 to CB 74).

   5)The Tribunal invited the applicant to a hearing, and he attended on 25 June 2002 (CB 86 to CB 90).

   6)The Tribunal handed down its decision on 10 July 2002, and sent a letter of notification of the decision to the applicant on the same day (CB 94). In any event, the applicant attended at the handing down of the decision on 10 July 2002 (SCB 5).

   7)

   The applicant filed his originating application in this Court on

   
   

   2 September 2004 (with the assistance of solicitors).

   8)The first Court date in this matter was on 22 September 2004. On that day the matter was listed for hearing before me on 3 May 2005. 

   9)

   The applicant filed an amended application in this Court on

   
   

   1 November 2004.

   10)A Notice of Objection to Competency was filed by the respondent on 8 December 2004. This Notice, objecting to the jurisdiction of this Court to hear this matter, asserted that the Court lacked jurisdiction to review the decision made by the Tribunal pursuant to s.477(1A) of the Migration Act 1958 (“the Act”) (the relevant legislation at that time) which provided that an application to the Federal Magistrates Court pursuant to s.39 of the Judiciary Act 1903 and s.483A of the Act must be made within 28 days of the notification of the Tribunal decision. [The relevant section of the Act has now been amended by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”) see s.477(1)].

   11)On 22 April 2005 the applicant’s application to this Court filed on 2 September 2004 was dismissed, by consent. The applicant was represented by solicitors at that time. Both parties’ legal representatives signed draft consent orders which were submitted to the Court. The orders made were in the following terms:

   “1.The application be dismissed.

   2.The applicant pay the respondent’s costs of the proceedings in the sum of $2,600.00.”

   12)On 23 May 2005 the applicant’s legal representative wrote to the Minister seeking that she exercise her power pursuant to s.351 of the Act to provide a more favourable outcome to the applicant (see annexures to the applicant’s affidavit).

   13)On 16 August 2005 the Minister’s Department responded and advised that the Minister’s guidelines in dealing with such requests provide that such requests not be brought to the Minister’s personal attention in circumstances where a previous and similar request had been made, and no additional material has been put forward. The letter advised that the applicant had sought such intervention on two previous occasions and on an assessment any of “additional information you have provided”, this did not bring the applicant’s matters within the guidelines for referral (see annexure to the applicant’s affidavit)

   14)On 20 January 2006 the applicant made a “second” application seeking review of the Tribunal’s decision

3. The basis of the application for the visa was that the applicant sought to remain in Australia to provide care for his brother who had been seriously injured in an accident some years earlier. The applicant’s brother “nominated” the applicant for this visa. The legislative (and regulatory) basis for this visa is as referred to in the Tribunal’s decision record reproduced at CB 96:

   “Item 1115 [Family (Residence) (Class AO) visa] of Schedule 1 to the Regulations

   Part 806 of Schedule 2 to the Regulations

   Regulation 1.03 of the Regulations – definitions of ‘special need relative’, ‘ relative’, ‘close relative’ and ‘settled’.”

4. The definition of “special need relative” at Regulation 1.03 of the Migration Regulations 1994 (“the Regulations”) is as follows:

   “special need relative, in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

   (a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

   (b) the assistance cannot reasonably be obtained from:

   (i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii) welfare, hospital, nursing or community services in Australia.”

   In essence, the regulatory scheme provides that a person be granted a visa if, at the time of application, they meet the provisions set out in clause 806.213 of Schedule 2 to the Regulations. Relevantly, the Tribunal needed to be satisfied that the applicant met the definition of “special need relative”, and that the nominator was “settled” as at the time of visa application. Clause 806.213 required satisfaction of the criteria in this clause, also at the time of decision.

5. The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 100.3 to CB 101.2. The Tribunal found that:

   1)The applicant was not a ‘special need relative’ at the time of the visa application (paragraph 16 at CB 100.4).

   2)The nominator (the applicant’s brother) was cared for by his wife for the eleven years prior to the applicant’s arrival in Australia (paragraph 16 at CB 100.4).

   3)The type of assistance provided by the applicant to the nominator was characterised, based on his own evidence, as “domestic assistance” and “companionship” which did not constitute a “permanent or long term need” as required by legislation (paragraph 17 at CB 100.6).

   4)There was no evidence to suggest that the nominator’s wife, and adult children were no longer able to continue to assist the nominator (paragraph 18 at CB 100.7).

   5)The applicant did not meet the relevant criteria for the grant of a special need relative visa at the time of the application in that he had failed to meet relevant conditions under clause 806.213 of the Regulations. It found therefore, that it was not necessary to consider whether the applicant met the relevant criteria as at time of decision.

6. I note that the grounds of review contained in the applicant’s amended application filed on 1 November 2004, further to the earlier original application, are:

   “1.The Migration Review Tribunal (the Tribunal) made a jurisdictional error in interpreting and applying the term ‘special need relative’ under Regulation 1.03 of the Migration Regulations.

   2.The Tribunal made a jurisdictional error by misdirecting its findings.”

7. The application currently before the Court, supported by an affidavit affirmed by the applicant on 18 January 2006, seeks that the orders made, by consent, on 22 April 2005 be set aside. Relevantly, in his affidavit the applicant contends that:

   -He does not “agree” with the orders made by consent to dismiss his application to this Court.

   -He does not wish to be “deported” as he acts as carer for his brother who is a “paraplegic”.

   -He does not accept the response by the Minister’s office to his request for “intervention” by the “Minister for Immigration” to exercise public interest powers to substitute a more favourable decision for that of the Tribunal, and asserts that the Minister has “failed to act properly”.

   -The Tribunal decision “contains jurisdictional error because it failed to consider favourable material and medical evidence”, and that the Tribunal also failed to consider the “consequences” of the applicant’s brother’s situation without his assistance.

   -The Tribunal, whilst accepting the applicant’s claims about his brother’s disability, failed to assess the fact that he would not be able to receive assistance from “other members of the family”, his wife and “other welfare or hospital or community services”.

   The affidavit annexes:

   -A “Possible Itinerary” for the purposes of the applicant’s departure, by the Minister’s Department.

   -Draft (consent) orders filed by the respondent on 26 April 2005.

   -Sealed (consent) orders filed by the respondent on 19 July 2005.

   -Letters of reply (by the Minister’s Department), to the requests for ministerial intervention, addressed to the applicant’s representatives dated 16 August 2005 and 15 July 2005.

   -The Tribunal’s decision record.

   -A copy of a facsimile from the applicant’s then representatives sent to the Ministers Department, dated 23 May 2005, attaching a request pursuant to s.351 of the Act.

   -The applicant’s brother’s letter to “the Departmental Officer” dated 10 April 1997, attaching medical certificates.

8. Before me today the applicant appeared unrepresented. He was assisted by an interpreter in the Arabic language. Ms. Gray appeared for the respondents. Prior to the applicant making his submissions I granted leave for his affidavit to be read into evidence. Ms. Gray did not object. The applicant stated that the reason why he came to Australia was to act as carer for his brother who is disabled. He referred the Court to a letter annexed to his originating application to this Court, dated

   
   

   10 April 1997, which was written to the Minister’s Department by the nominator.

9. The applicant’s complaints, which he now seeks to have considered by the Court, are that the Tribunal made error in that it:

   -Did not understand the relationship between him and the nominator.

   -Failed to look at his other brother’s and sister’s “inability” to assist the nominator, and the “mentality” of the nominator’s wife and that they did not have “a good relationship”.

   -Ignored the situation of the nominator and how it is the applicant, not other relatives, who has the “ability” and “capacity” to assist him.

10. The applicant stated that he engaged the services of solicitors: “Simon Diab & Associates”, who withdrew his application from the Court, by consent, without his knowledge. The applicant therefore claimed that he did not understand the nature, or the consequences, of what arose from his withdrawing from the matter before the Court. However, the applicant was unable to provide any evidence of such wrong doing on the part of the solicitor.

11. In view of the applicant’s submissions to the Court, I explained to him the difference between the Tribunal and this Court, and that in effect and simply put, the role of this Court is to see if the Tribunal has correctly reviewed the applicant’s claims according to the law. I put to the applicant that the complaints made before me do not address the issue, of any jurisdictional error made by the Tribunal.

12. The background outlined above raises first the issue of whether the dismissal of the applicant’s application by consent is “efficacious”. In Somanader v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1192 His Honour Merkel J. at [36] stated:

    “It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation.”

    As a matter of law the effect of the orders made by the Court to dismiss the applicant’s application, with consent of both parties, is as binding as orders made after a hearing. In my view, had the matter been pursued the Court would have then looked at the application in a substantive manner to assess whether there was any error in what the Tribunal had done. However, in the case before me the application did not continue in this manner, not because of anything initiated by the Minister or the Court, but initiated by the applicant through his legal representatives at the time, with the agreement of the Minister's representatives.

13. In this regard, Ms. Gray submitted that the Court does have power to set aside consent orders, if it is in the interests of justice: see Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126 at [21] where the Court states:

    “The most important issue, as Casey J made clear in Waitemata City Council, assuming that a ground for setting the order aside does appear, is whether the interests of justice, in the circumstances, call for the setting aside of the order. But counsel for the applicant was unable to point to any aspect of the decision of the Refugee Review Tribunal which raises some argument that, in the interests of justice, the applicant ought to be able to rely upon as indicating that the decision should be set aside.”

14. She submitted that, in the case before me, there is no evidence to support the claim before the Court of any wrong doing on the part of the applicant’s representatives. Ms. Gray referred to paragraph 3 of the applicant’s affidavit, and submitted that it does not go far enough to amount to a complaint of “fraud” on the part of his representatives. The respondent argued that the applicant has had ample opportunity to put this particular complaint before the Court, and that he has not done. Even now, the applicant only states that he does not “understand”, and does not “agree”, rather than argue (let alone put evidence before the Court) that he was misled by his legal advisers in such a way and to such a degree that the Tribunal’s decision should be set aside.

15. Ms. Gray submitted, therefore, that it is not in the interests of justice, in the circumstances, to set aside the orders made because the applicant may not have understood why he signed the consent orders, or may not agree with them now. Particularly, as at the relevant time, in the absence of any corroborating evidence to the contrary, he must have been advised by his legal representatives about the consequences of agreeing to such orders. I agree with this submission. There is nothing before the Court, nor was it asserted by the applicant, that there was no attempt by his legal representatives to explain these consequences to him (even though he may not have really understood, or even realised the full implications). The application to the Court was dealt with by consent and the applicant then pursued intervention by the Minister. When this was unsuccessful he has now sought to recommence proceedings before the Court. In my view, it is not open to the Court, in all the circumstances before it, (and without any evidence) to make any assumption that solicitors acted improperly or acted without instruction in this matter. I agree with Ms. Gray’s submission.

16. The respondent pressed that the Court must look at the conduct of the applicant over the last nine months, and also whether there would be any utility in proceeding further with this matter. In respect of these issues the applicant would have to show that there may be the possibility of some jurisdictional error in what the Tribunal has done which would warrant the matter proceeding any further.

17. In this regard Ms. Gray referred the Court to paragraph 5 of the applicant's affidavit where he indicates that he applied to the Minister to exercise a discretion under s.351 of the Act. The respondent submitted that it can be inferred that the applicant was acting on the fact that his proceedings in this Court had been finalised. Ms. Gray argued that there is a “legal impediment” to pursuing judicial review and also pursuing Ministerial intervention. The applicant chose to take the path of Ministerial intervention and was unsuccessful. Moreover, awaiting the outcome of Ministerial intervention is not a satisfactory explanation for delay. The respondent submitted that Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395 is authority for the proposition that an application made by an applicant pursuant to s.351 (or s.417) of the Act can therefore be indicative of the applicant's acceptance of the validity of the Tribunal's decision. To the extent that there has been such a long delay since the consent orders were signed, and since the “Section 351” application was refused on

    
    

    16 August 2005 the applicant had ample time to raise his concerns with the solicitors, and with the Court, and had ample time during that period to seek alternative legal advice. Therefore, the circumstances giving rise to the consent orders mean that the applicant is bound by the actions of his representatives. Further, that he also had legal advice, and he chose to have his matter dismissed by those consent orders. There is nothing to indicate that the applicant's solicitors were acting without instructions. If anything, the applicant appears to understand that consent orders were signed, although he may disagree with the consequences now. In all the circumstances, and after hearing the applicant today, I agree with this submission.

1. In paragraphs 6 and 7 of his affidavit the applicant makes assertions, without any evidence in support, about the Tribunal's findings. He complaints that the Tribunal did not consider “favourable material and medical evidence” and other evidence as to “why other members of [his] family” could not look after the applicant. The complaint is that while the Tribunal accepted that his brother was disabled it variously “ignored” or “failed to understand” matters that were favourable to the applicant. On reading the material before me, and with regard to the Tribunal’s decision record, in my view the applicant’s complaints now about the Tribunal’s decision really take issue with the Tribunal’s findings and go no further than seeking to agitate the merits of his claims to a visa before the Court. In my view, this does not arise above a request for impermissible merits review. The Tribunal’s findings were open to it on what was before it. It considered all of the applicant’s claims, and the situation of the applicant's brother, but was not satisfied that the applicant met the relevant requirements of the Regulations. I cannot see any jurisdictional error in the Tribunal’s decision. Even if the orders made by consent were set aside I cannot see, on what is before me, that the applicant would ultimately succeed.

2. The applicant has not provided any evidence to support, or establish, that it would be in the interests of justice to set aside the consent orders. Nor can I see any reason for so doing. On this basis, the application should be dismissed.

3. In relation to the request made by the applicant for the Minister to intervene in his matter, the scheme of the Act, particularly for visas that are not refugee visas, is that there are very “strict and prescriptive” requirements set out that an applicant must meet.

4. With those seeking refugee protection the very subject matter lends itself to the “safety net” of s.417 provided by the Parliament. But I do not see that any lesser approach was envisaged by the legislature when it came to non-refugee matters. This is particularly so given, now, the highly prescriptive requirements for these visas. The Court cannot compel the Minister nor do anything to assist the applicant in this regard. The Court has had the benefit of hearing from the applicant first hand. The Court was moved by the applicant’s brotherly devotion. While acknowledging freely that it is not for the Court to intervene in any way and not in any way critical of the Tribunal, I do ask Ms. Gray to convey to those that advise the Minister on these matters that this may be a case (irrespective of the guidelines) that should go to the Minister for her personal consideration. I will exercise as strong a voice as possible now through Ms. Gray, with the greatest of respect to the Minister and to those in her Department, that the Court cannot be but moved by the compassionate circumstances that are involved in this case. The Court requests that those who advise the Minister, at least, put before the Minister personally the very strong humanitarian and compassionate elements of this case. The Court does note that in recent times the Minister's Department, through its representatives, has declared publicly their approach, embodied in the slogan: "People are our business". I say this again with respect to the Minister and to her employees, it appears to me to be inconsistent with their slogan that the applicant receive from the Minister's Department something which, with the greatest of respect is what could be described as a formulaic response. It is not apparent that the Minister or her employees in the “ACT and Regions office” would have had the opportunity to have seen the applicant in person. Having seen and listened to the applicant, I would request that those who advised the Minister, at least, put this applicant's compassionate circumstances before her for consideration. I emphasis that I am well aware of the limitations on the Court's power in this regard, and what I have said was with respect to the Minister and her employees, but I could not leave what is clearly a situation that does engage so strongly one's compassionate feelings. I ask Ms. Gray to convey these sentiments to the relevant people in the Minister's Department.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 17 July 2006