SZMIC v Minister for Immigration
[2010] FMCA 231
•29 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 231 |
| MIGRATION – Refugee Review Tribunal – Practice and Procedure – whether orders entered by consent should be set aside. |
| Federal Magistrates Court Rules 2001, rr.16.05, 16.05(2), 16.05(2)(c) |
| Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126 Harvey v Phillips (1956) 95 CLR 235 |
| First Applicant: | SZMIC |
| Second Applicant: | SZMID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1350 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 March 2010 |
| Date of Last Submission: | 29 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1350 of 2008
| SZMIC |
First Applicant
| SZMID |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By motion filed on 14 December 2009, the applicants sought orders that consent orders entered by the Court dismissing the applicants’ application, dated 24 November 2008, be set aside.
The orders made and entered on 24 November 2008 ordered that, by consent, the proceeding commenced by way of application filed on 27 May 2008 be dismissed with costs. Both applicants had signed the consent orders. The consent orders were also signed by the solicitor for the first respondent, initialled and dated by me and annexed to the order entered by the Court.
The first respondent opposes the application on the basis that, in the circumstances of this case, no ground or basis has been established by the applicants for the setting aside of the consent orders.
Rule 16.05(2) of the Federal Magistrates Court Rules 2001 (“the Rules”) makes provision that the Court may vary or set aside consent orders in certain circumstances. Rule 16.05(2) is in the following terms:
“(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a
receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.”
The written submissions of counsel for the applicants, Mr Kumar contend that the orders made by the Court on 24 November 2008 are interlocutory and therefore r.16.05(2)(c) would apply. However, at the outset of the hearing, Mr Kumar conceded that the orders made by the Court on 24 November 2008 were not interlocutory and that the applicants no longer relied on that contention. It was then common ground between the parties that r.16.05 did not provide a ground for setting aside the consent orders.
At the heart of the applicants’ submissions is that it is in the interests of justice that the orders sought be made.
The applicants relied on the affidavit of the first applicant, affirmed 13 December 2009, in support of the application, as follows:
“1.I am the first applicant in the proceedings number SYG 1350/2008 with the pseudonym SZMIC.
2.The application accompanying this affidavit is my Notice of Motion is for reinstatement of the proceedings dismissed by the Federal Magistrates Court per Emmett FM on 03 December 2008 as consented on 24 November 2008.
3.The dismissed proceeding was an application for review of the decision of Refugee Review Tribunal under the Federal Magistrates Court Act 1999, Federal Magistrates Court Rules, 39B of the Judiciary Act, and Migration Act 1958.
4.The proceeding in this Court was dismissed based on the consent between the parties on 24 November 2008. The matter was not heard but was simply procedural step of holding the matter in abeyance and was not finally determined. The consent was not based on the applicants’ concession of the case that the Minister would succeed had the matter gone to hearing but was simply based on previous advice that we should approach the Minister for further intervention.
5.We now wish to prosecute our application and continue with the proceeding that was previously filed. I ask this Honourable Court on behalf of the applicants to restore and re-instate the matter to the list and make Orders sought in the application filed herewith pursuant to Rule 16.05 of the Federal Magistrates Court Rules.
6.I ask the Honourable Court to grant leave to file the Amended application marked Annexure “A” and request the Honourable Court make directions for the conduct of the matter.”
Annexed to the affidavit was a draft “Amended Application”. The affidavit constituted the totality of the evidence provided by the applicants in support of the application this morning to set aside the Court’s order made on 24 November 2008.
It would appear from paragraph 4 of the first applicant’s affidavit that the applicants made a decision around 24 November 2008 that they would pursue approaching the Minister for Immigration and Citizenship for intervention in their case, rather than pursue the application for judicial review of the Tribunal’s decision. That is the only evidence before this Court of any explanation by the applicants for the reasons why those orders were entered into. There was no evidence or submission that the Minister understood that the applicants agreed to have the orders made with the intention that they were to be provisional or dependent on the outcome of some other remedy.
Mr Kumar submitted that a ground upon which the consent orders could be set aside is that it is in the interests of justice to do so. In support of that submission, Mr Kumar referred the Court to Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126 (“Bizuneh”), in particular paragraph 21, as follows:
“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. Nor has the Court been able to find in the decision anything of that sort.” (emphasis added)
The solicitor for the first respondent, Mr Markus, submitted that the applicants had not raised any ground or basis upon which it would have been proper for the consent orders to be set aside. Mr Markus referred the court to Harvey v Phillips (1956) 95 CLR 235, in particular, where their Honours stated that at 243 to 244:
“The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds, for example, such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.” (emphasis added)
Mr Kumar did not suggest that any of the grounds referred to in Harvey v Phillips was available to the applicant in this case. Moreover, Mr Kumar did not identify any other ground or basis that would enable the Court to set aside the order. In Bizuneh, the contention made by the appellants was that the consent orders were entered into by mistake and that, in the circumstances, the interests of justice would demand they be set aside. Mistake is one of the grounds referred to in Harvey v Phillips.
No such contention was put to this Court that the applicants signed consent orders by mistake or any ground either referred to, or similar to, those grounds referred to in Harvey v Phillips. Plainly, if a ground for setting the orders aside is established, the Court must consider whether it is in the interests of justice to do so.
However, in any event, for the reasons below, it is not in the interests of justice that the consent orders be set aside.
The history of this proceeding, as disclosed below, reveals the several opportunities given by the Court to the applicants to prepare and prosecute their application for judicial review of the decision of the Refugee Review Tribunal, dated 10 April 2008. The applicants filed the initiating application on 27 May 2008. The applicants appeared before me on 19 June 2008 at a directions hearing. On that occasion, the applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon and to file and serve any additional evidence, including any transcript of the Tribunal hearing, as well as written submissions in support of their application. The matter was set down for hearing on 4 August 2008. An amended application was then filed on 24 July 2008.
At the commencement of the hearing on 4 August 2008, the first applicant made new oral claims in respect of which he gave oral evidence. As a result, the matter was stood over for directions on 6 August 2008. On 6 August 2008, directions were made, again, giving the applicants leave to file and serve a further amended application, any further evidence, including any transcript of the Tribunal hearing, and written submissions. The matter was then set down for final hearing on 8 December 2008. No further documents were filed by or on behalf of the applicants in accordance with those directions or otherwise.
In the circumstances, the applicants have had several opportunities to prosecute their application. The applicants chose to take a different course which was open to them. There is no evidence before this Court proffering any explanation as to the applicants’ delay between the entering of the consent orders on 24 November 2008 and the filing of the present application, more than 12 months later, on 14 December 2009, beyond their decision to pursue Ministerial intervention.
In considering the overall interests of justice, it is legitimate to have regard to the public interest in having administrative decisions finalised. The only explanation offered by the applicants for seeking to have the consent orders set aside is that they now wish to pursue a course that they have had significant time to pursue, because an avenue that they chose to pursue was unsuccessful. As stated above, that is not a ground that would allow the Court properly to set aside the consent orders and therefore it is not otherwise in the interests of justice that the orders sought today be made.
Accordingly, the application filed by the applicants on 14 December 2009 should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 March 2010
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