DUH18 and Ors v Minister for Immigration and Anor

In the Federal Circuit and Family Court of Australia, Judge McNab considered an application by DUH18 and other applicants seeking to set aside final consent orders made in their favour. The applicants had arrived by sea at Ashmore Reef and were considered unauthorised maritime arrivals. The dispute centred on whether the court possessed the power to set aside the previously entered consent orders, and if so, whether the circumstances warranted such an action.

The court was required to determine whether it had jurisdiction to set aside final consent orders, particularly when the usual grounds for setting aside such orders, such as fraud or common mistake, were not present. A key legal issue was whether a unilateral mistake made by the Minister, regarding the factual circumstances of the applicants' arrival, could form a basis for setting aside the consent orders, even in the absence of any inducement by the applicants. The court also considered whether the consent orders accurately reflected the true state of affairs and if it was in the interests of justice to set them aside.

Judge McNab reasoned that while the usual grounds for setting aside consent orders were absent, the court retained the power to vary or set aside a judgment or order under rule 39.05 of the Federal Court Rules 2011 (Cth) if, for instance, the order did not reflect the intention of the Court or if there was an error arising from an accidental slip or omission. The judge found that the declarations made pursuant to the consent orders did not reflect the true factual position underlying their making, as the Minister had made an error regarding the factual question of where the second applicant arrived. Despite the applicants not inducing the Minister's mistake and there being no underlying settlement agreement, the court concluded that the declarations did not reflect the true state of affairs, providing a basis for setting aside the orders.