Bizuneh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1560

FEDERAL COURT OF AUSTRALIA

Bizuneh v Minister for Immigration & Multicultural Affairs [1999] FCA 1560

PRACTICE AND PROCEDURE – exercise of discretion to refuse to accept or issue Notice of Motion on the ground that it is frivolous or vexatious – application to reopen case and vacate consent orders – whether application misconceived and bound to fail

Migration Act 1958 (Cth) s 417
Federal Court Rules O 46 r 7A

Bird v Free (1994) 126 ALR 475 considered

David James Roderick v Australian & Overseas Telecommunications Corporation Limited (von Doussa J, 6 May 1997, unreported) considered

TAFESE ESHETU BIZUNEH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 508 OF 1999

TAMBERLIN J

SYDNEY
10 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 508 OF 1999

BETWEEN:	TAFESE ESHETU BIZUNEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The Deputy Registrar is directed not to accept the applicant’s Notice of Motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 508 OF 1999

BETWEEN:	TAFESE ESHETU BIZUNEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter Consent Orders were made on 13 August 1999 dismissing the application.  The present Notice of Motion now shown to me was faxed to the Federal Court Registry on 28 October 1999 and was accompanied by an Affidavit by the applicant of the same date.

2. In his affidavit the applicant states that he was expecting a positive outcome from a letter to the Minister requesting that the Minister exercise his discretion under s 417 of the Migration Act 1958 (Cth) (“the Act”). In fact the Minister decided on 8 September 1999 not to consider exercising his power. The Department for Immigration and Multicultural Affairs informed the applicant of the decision by letter, and required that he contact an office of the Department to discuss his status in Australia. The applicant says that owing to his trust for the Department he went to the office on 19 October 1999 and was thereafter detained. He is at present in the Villawood Detention Centre. He expresses strong dissatisfaction with the conditions in that Centre.

3. On 1 August 1999, the applicant had written a letter directly to me in which he referred to his problems in obtaining legal assistance.  He referred to his dissatisfaction with the service provided to him in the course of seeking legal assistance and representation over two years; the lack of attention to his case by his legal representative; the need for expertise in presenting his case; his respect to the Court; and the complicated and highly professional procedure of the Court making it very difficult for him to prove his case.  Finally he referred to his exhaustion by the lengthy process over the last two years.  Accordingly, he said he dropped the matter “involuntarily”.  He says that even though he dropped the case the opportunity to tell some of his difficulties gave him great satisfaction.  He also thanked the Court for its attention to his case at an earlier directions hearing.

4. Eight days after this letter, on 9 August 1999, the applicant signed Consent Orders dismissing his application.

5. In my opinion, nothing has been shown to warrant the Court setting aside the Consent Orders.

6. The Deputy District Registrar has now applied to me under O 46 r 7A of the Federal Court Rules for an Order directing him to refuse to accept or issue the Notice of Motion presented by the applicant.  I have considered that rule and the comments of this Court thereon in Bird v Free (1994) 126 ALR 475 at 480 per Drummond J, and in David James Roderick v Australian & Overseas Telecommunications Corporation Limited (von Doussa J, 6 May 1997, unreported) at 10.  The present application is misconceived and would be bound to fail for the reasons I have given above.  I am not satisfied that there is any evidence which could vitiate or warrant reconsideration of the earlier Consent Orders.

7. Accordingly, I direct the Registrar to refuse to accept or issue the Notice of Motion presented by the applicant dated 28 October 1999 on the ground that it is frivolous or vexatious.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             10 November 1999

Reasons given ex parte in chambers
Date of Judgment:	10 November 1999