S70 of 2002 v Minister for Immigration - [2004] FMCA 538

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S70 of 2002 v MINISTER FOR IMMIGRATION

[2004] FMCA 538

MIGRATION – Application to set aside court orders dismissing application – effect of legal adviser’s advice – whether there is power in Rules to grant application – whether discretion should be exercised in light of delay and failure to demonstrate a possible claim.

Federal Magistrates Court Rules 2001

NAIJ v Minister for Immigration [2002] FMCA 225
Capital Web Works Pty Limited v Adult Shop.com Limited v Adult Shop.com Limited and Others [2002] FCA 389
Bizumeh v Minister for Immigration [2000] FCA 126

Applicant:

S70 of 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 888 of 2004

Delivered on:

12 August 2004

Delivered at:

Sydney

Hearing date:

12 August 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Notice of Motion dismissed.
Applicant to pay respondent’s costs which I assess in the sum of $1,135.00 in accordance with Part 21, Rule 21.02(2)(a) and Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 888 of 2004

S70 of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There comes before me today a Notice of Motion filed by the applicant seeking orders setting aside a judgment made by consent on 5 July 2004 and entered in the court on 9 July 2004 pursuant to which I ordered that the substantive application be dismissed and that the applicant pay the respondent's costs assessed in the amount of $350.
The grounds of the application are set out in an affidavit sworn by the applicant which were spoken to by him before me today. In short, the applicant states that he enlisted the services of a solicitor to conduct his appeal against a decision of the Refugee Review Tribunal and paid that solicitor $2000.
The solicitor filed an application on 7 April 2004 but at some time in June of 2004 advised the applicant that his case did not have any reasonable prospect of success and that he should sign consent orders dismissing the proceedings. This would have the effect of reducing any costs payable by the applicant and, it would seem from what the applicant told me, obviating placing the solicitor at any risk of having to pay the respondent's costs personally. The applicant accepted this advice and signed the consent orders which were later made into the orders which I have previously described.
The applicant believes that he was placed under undue influence and pressure by the solicitor, that he was never provided with the type of advice that could be expected of a proper legal adviser and that he believed that the solicitor's action was primarily motivated by a desire to protect himself from a disadvantageous personal costs order. The applicant is convinced that he has grounds upon which review of the decision of the Tribunal can be given.
The only provision under which the court can set aside or vary a judgment or order after it has been entered are those grounds set out in Rule 16.05(2) of the Federal Magistrates Court Rules 2001. The only two of those grounds which have any relevance whatsoever to this case are grounds:
(a) the order is made in the absence of a party, or
(b) the order is obtained by fraud.
Without wishing to put words in the mouth of the applicant I can assume that he is attempting to suggest that the action of the solicitor was fraudulent for the purposes of this rule and that he was not present at the hearing.
Mr Markus who appears on behalf of the respondent submits that a consent order can never be an order made in the absence of a party. I think he must be right. The applicant is not arguing that he did not sign the consent orders and that his solicitor acted without his authority. He is arguing that had he been properly advised and not placed under pressure he would not have accepted the advice given by his lawyer.
Likewise, I am not able to find that the actions complained of constituted fraud. No fraud is established from the evidence given by the applicant even if it could be said that the fraud of his legal adviser was a relevant matter. What occurred here is that the legal adviser gave him advice he didn't like and which may have been contrary to an opinion expressed before the application was filed as a result of which the applicant parted with a substantial sum of money, albeit reluctantly.
In those circumstances it does not appear that there is provision in the rules for me to set aside the orders. This case has some similarities with that decided by me in October 2002; NAIJ v Minister for Immigration [2002] FMCA 225 where I considered the authorities and in particular the judgment of Nicholson J in Capital Web Works Pty Limited v Adult Shop.com Limitedv Adult Shop.com Limited and Others [2002] FCA 389.
Mr Markus, helpful as always, has referred me to a decision of the Federal Court in Bizumeh v Minister for Immigration [2000] FCA 126 where the Full Bench accepted that in circumstances where a consent was given without authority or mistakenly there might be grounds to set it aside if the interests of justice required it. The Full Bench did not go so far as to suggest that accepting advice from a legal practitioner which a party later feels to have been in error would constitute mistake for the purposes of that exception to the rules.
I am satisfied that in the circumstances this court does not have the power to set aside the consent order. If there was any discretionary element remaining it could only be invoked if the applicant was able to convince me that there was a clear example of jurisdictional error in the decision of the Tribunal. I say this because I am mindful that migration cases and in particular cases relating to the status of refugees are different from all other cases dealt with in this court in that they revolve around the possibility that that person may be refouled into a country where his life will be in danger. That should never be forgotten, even though it is easy to do so given the vast number of cases which come before this court without very much in the way of merit.
But the applicant was unable to articulate any ground upon which the Tribunal may have fallen into jurisdictional error. He told me that the Tribunal had not taken all his circumstances into account and that his life would be in danger if he returned to India. He stated that his daughters were at school in this country and they regard this country as their home. He stated that it would be very difficult for his daughters to settle down back in their own country if they were returned. These are not matters which goes to the manner in which the Tribunal came to its decision and I am unable to take them into account.
Finally, I note that the Tribunal decision in respect of which the applicant seeks review was handed down on 14 August 2001. The applicant did not make his application for judicial review until April 2004. The existence of this delay would be a matter that should be taken into account in the exercise of any discretion by the Court.
I dismiss the Notice of Motion. I order that the applicant pay the respondent's costs which I assess the sum of $1,135.00 in accordance with Part 21, Rule 21.02(2)(a) and Schedule 1 of the Federal Magistrates Court Rules, this being an interim or summary hearing under stage II of the cost schedule.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: