NAPN of 2002 v Minister for Immigration - [2005] FMCA 149

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPN of 2002 v MINISTER FOR IMMIGRATION

[2005] FMCA 149

MIGRATION – Application to set aside consent orders dismissing application to review decision of Refugee Review Tribunal and to set aside discontinuance of subsequent application.

Harvey v Phillips (1956) 95 CLR 235

Applicant:

NAPN of 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 587 of 2002

Delivered on:

15 February 2005

Delivered at:

Sydney

Hearing date:

15 February 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application to set aside consent orders made in proceedings SZ587 of 2002 on 31 October 2002 and the discontinuance of proceedings SZ1773 of 2003 is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 587 of 2002

NAPN of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed in proceedings SZ587 of 2002 on

17 January 2005 by the applicant who seeks: “(1) An order of the trial judge be set aside and allow me to file notice of appeal; (2) an order that no action is taken to remove the applicant from Australia is – while the decision is pending; (3) an order for costs.” The applicant also filed an accompanying affidavit sworn on 16 September 2004 which states (and it is necessary to set it out in full to clarify the nature of these proceedings):
“1. I am the applicant of the above matter. The matter was discontinued by me.
2. I do not know the consequence of the discontinuance. I have big problem to go back to my country. Please consider my application.”
The background to this application is that on 5 June 2002 the Refugee Review Tribunal made a decision to affirm the decision of the delegate of the respondent to refuse the applicant a protection visa. On 24 July 2002 the applicant filed an application for judicial review of that decision in this Court in proceedings SZ587 of 2002.
A directions hearing was held on 14 August 2002. The applicant had a solicitor acting for him who attended the directions hearing. Orders were made into by consent. The matter was listed for hearing on

14 November 2002. On 30 August 2002 the applicant filed an amended application. In both the original application and the amended application the applicant raised very general grounds which were not particularised.
On 25 October 2002 consent orders were filed in the Federal Magistrates Court dismissing the application with costs. Those orders were signed by the solicitor for the respondent and also by the applicant's solicitor. On 31 October 2002 I made orders by consent as sought.
On 28 August 2003 the applicant filed a second application in this court seeking judicial review of the same Tribunal decision in proceedings SZ1773 of 2003. That application relied on nine unparticularised grounds, the last of which was that more details of grounds would be provided later. It appears that the applicant was self-represented. On 15 October 2003 the respondent filed a notice of motion for summary dismissal on the grounds that the application failed to disclose a reasonable cause of action and abuse of process. The notice of motion was listed for hearing on 19 November 2003. On 10 November 2003 the applicant filed a notice of discontinuance.
Subsequently, on 26 July 2004, the applicant filed a draft order nisi and affidavit in the High Court of Australia in proceedings number S265 of 2004 again seeking review of the Tribunal decision of 5 June 2002. The draft order nisi relied on a number of general, unparticularised grounds. The applicant sought that the matter be remitted to the Federal Court. On 23 August 2004 Heydon J dismissed the application for an order nisi with costs. The transcript of the proceedings before Heydon J indicates that His Honour was made aware of the two earlier proceedings. His Honour noted that there were seven standard form grounds set out in the draft order nisi, which could have been, and to some extent were, run in the proceedings in this Court which were dismissed on 31 October 2002, and in the further proceedings discontinued on 10 November 2003. Heydon J stated that there was no evidence or other material supporting any of the grounds and that it would be futile to remit the proceedings to the Federal Court. They were therefore dismissed.
On 17 January 2005 the applicant filed the application in this Court to set aside orders. In oral submissions he indicated that he wished to have set aside both the consent orders of 31 October 2002 and the discontinuance of 10 November 2002. I am satisfied that the applicant seeks that both proceedings be dealt with in this application. Accordingly, I will consider both his application in relation to the consent orders and his application in relation to the discontinuance. Insofar as necessary I dispense with compliance with the Federal Magistrates Court Rules as it is in the interests of justice that both matters be dealt with in these proceedings (despite the fact that only one application has been filed by the applicant).
The respondent conceded that the Court had the power to set aside both the consent orders and the notice of discontinuance but opposed any such order.
The Court has power to set aside orders in the interests of justice.

I note in that respect, not only Rule 16.05 of Federal Magistrates Court Rules but also Order 35 Rule 10 of the Federal Court Rules which continues to operate in this Court pursuant to Rule 1.05(3) and Schedule 3, Part 2 of the Federal Magistrates Court Rules. I have had regard to the general principles applicable in relation to the setting aside of orders (in particular what the High Court had to say in Harvey v Phillips (1956) 95 CLR 235, in relation to setting aside consent orders). I have also had regard more generally to the interests of justice.
There are, however, a number of factors that convince me that this is not a case in which the Court should set aside either the consent orders or the notice of discontinuance. I am not persuaded that it is in the interests of justice to do so. First, a consideration of the Tribunal reasons for decision indicates that on any of the bases claimed in the first or second applications to this Court, the applicant's case would be hopeless. He relied on very general grounds of review without any particulars. In none of the proceedings he has commenced has he provided any evidence in support of his claims that there was a jurisdictional error in the Tribunal decision. The Tribunal decision was based essentially on its findings in relation to the credibility of the applicant. Apart from the claim that he was a citizen of Bangladesh of the name that he claimed, the Tribunal did not accept any of his claims as being true, and considered that he had manufactured his claims of involvement in the Jatio Party.
It is also relevant to consider the course of conduct of the applicant.

I do not accept the applicant’s submission that he did not understand the consequences of his action and did not understand his solicitor. There is no evidence in support of these assertions. The applicant was represented at all times in the first proceedings. Consent orders were made three weeks prior to the scheduled hearing. The applicant did not seek that the orders be set aside (until these proceedings). Rather he waited 10 months and instituted fresh proceedings. There is no evidence that he complained prior to these proceedings about the consent orders or that he indicated a basis on which they should be set aside.
In the second proceedings there were no particulars of the grounds relied on in the application. The respondent sought summary dismissal. The applicant discontinued ten days before the hearing of the respondent’s notice of motion. He then waited eight months before taking any further action. Again, there is no evidence to suggest that he did not understand the consequences of a discontinuance. On the contrary, the procedures adopted by the applicant suggest that he is in fact very well aware of his opportunities to seek judicial review.
Not only did the applicant commence two separate proceedings in this Court, he then commenced separate proceedings in the High Court some eight months later, without having made any complaint about the notice of discontinuance or the consent orders. He failed in that action. There was then a five month delay before he commenced these proceedings.
Moreover, even if there were some evidence about the circumstances by which the consent dismissal or discontinuance came about that gave cause for concern (and I hasten to add that there is not), the applicant has not been denied justice as he had the opportunity to bring proceedings in the High Court. The High Court considered his application for an order nisi. It was dismissed. No injustice has been caused to him in such circumstances.
I am not persuaded that it would be in the interests of justice to set aside either the consent orders dismissing the proceedings commenced in matter SZ587 of 2002 or the notice of discontinuance of proceedings SZ1773 of 2003. The application should be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing in this case that warrants a departure from the normal rule that the unsuccessful applicant should meet the respondent's costs. His impecuniosity and lack of a job are not reasons for not awarding costs in proceedings of this nature. The amount sought is appropriate.

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

Associate:

Date: 1 March 2005