Wu v Minister for Immigration

[2008] FMCA 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 296

MIGRATION – Review of decision of Migration Review Tribunal – application to set aside consent orders pursuant to Rules 16.05(2)(b) and/or (2)(e) – person who appeared to sign the consent orders not in fact the applicant in this matter – non-appearance by the applicant – dismissal for non-appearance pursuant to Rule 13.03A(c).

Federal Magistrates Court Rules 2001 (Cth), rr.16.05(2)(b), 16.05(2)(e), 13.03A(c), 1.06(1)

Applicant: ZHONGYUE WU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2846 of 2007

Judgment of: Nicholls FM

Hearing date: 18 March 2008

Date of Last Submission: 18 March 2008

Delivered at: Sydney

Delivered on: 18 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The orders made on 11 March 2008 be set aside pursuant to Rule 16.05(2)(b) and/or (2)(e) of the Federal Magistrates Court Rules 2001 (Cth).

   In lieu thereof, the following orders be made.

2. The application filed on 14 September 2007, as amended on 3 January 2008, be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2846 of 2007

ZHONGYUE WU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. [I have before me an application pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) to set aside orders made on 11 March 2008 on the basis that those orders were either obtained by fraud (sub-r.(2)(b) of the Rules), or that the order does not reflect the intention of the Court (sub-r.(2)(e) of the Rules).

2. The first respondent Minister has been granted leave to file the affidavit of Ms Elizabeth Warner Knight affirmed 18 March 2008. I also have before me a letter sent by the first respondent’s solicitors to the applicant in this matter on 11 March 2008, notifying the applicant of the application before the Court and of the time, date and place of the hearing of that application. I have marked that letter as respondent’s exhibit 1 (“RE 1”).]

3. I am satisfied that, on the evidence that has been put before the Court today, the person who attended Court and represented himself as the applicant in this matter, that is, Mr Zhongyue Wu, was not the applicant in this matter, and I am satisfied, on the evidence before me, that the person misrepresented himself as the applicant. I am also satisfied, on what has been put before me today, that the purported consent to orders that the Court was asked to make on that day (11 March 2008), as represented by short minutes of order that had been signed by a solicitor employed by the first respondent’s solicitors in that matter, was not given by the applicant in the matter but was purportedly given by someone who was not the applicant. On that basis, I am satisfied that the orders made on that day should be set aside, and I am satisfied that the actions of that person, who I understand now to be, from the evidence before me, a Mr Lu, did amount to a fraud, and, therefore, the orders made should be set aside, pursuant to r.16.05(2)(b) of the Rules.

4. Even if it could be said that those actions did not constitute fraud, I am still satisfied that the orders made on that day should be set aside, on the basis that the intention of the Court was to make orders in form and substance consented to by both parties in that matter and, while there was, on the face of it, consent on behalf of the first respondent, the Court, at that time, did not have the consent of the applicant to the making of those orders. Even if it could be said that what occurred on 11 March 2008 did not constitute a fraud, there is a separate and independent basis upon which the orders should be set aside and that is that the Court made orders in circumstances which did not reflect the intention of the Court (r.16.05(2)(e) of the Rules).

5. The intention of the Court was to make orders that had been consented to by both the first respondent and the applicant. For want of a rule, I note that r.1.06(1) provides that:

   “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.”

6. I am minded, therefore, to make orders setting aside the orders made on that day. I note that the first respondent’s application, or intention to make the application, pursuant to r.16.05, was the subject of a communication between the first respondent’s solicitors and the applicant by way of letter sent to the applicant at the only address for service which the applicant himself has provided to the Court. I note in this regard that that is the only address for service provided, the only current address for service provided, by the applicant. I note that the applicant provided an address for service in Levy Walk, Zetland with his application, but in the amended application filed on 3 January 2008 he provided an address in George Street, Sydney. It was to this address that the correspondence from the first respondent’s solicitors dated 11 March 2008 was directed.

7. I am satisfied, therefore, that the applicant has had notice of the proceeding before the Court today and has had about a weeks notice, which I regard as more than reasonable in the circumstances.  When the matter was called outside the Court today, the applicant did not appear.  The scheduled time was 2pm, 18 March 2008.  The applicant, I note, was notified (RE 1) of the place, in particular that the Court is Court 7A, John Maddison Tower, 88 Goulburn Street.  It is now nearly 2.30pm and there has still been no appearance by the applicant.  I am satisfied that the applicant has had notice of the matter called today and that, therefore, I should proceed to make the orders.  The applicant has not provided any explanation to the Court for any inability to attend today, nor has he sought any adjournment of the matter which the first respondent had notified him would be pressed before the Court.  We have otherwise not heard from the applicant and, therefore, I am satisfied in all the circumstances that I should proceed today to set aside the orders made.

8. On the matter of the first respondent’s application that the substantive application made to this Court on 14 September 2007, as amended on 3 January 2008, concerning the decision of the Migration Review Tribunal, be dismissed, I am satisfied that the applicant had notice that, in the absence of the applicant, the first respondent would be seeking that that application, as amended, be dismissed. For all the reasons that I have indicated earlier but which I will repeat again for the record in relation to this matter, the applicant was notified of this matter being listed for hearing as well, at 2pm today before me in Court 7A, John Maddison Tower. I note the time is now 2.38pm. The Court has not received any request for an adjournment of this matter from the applicant, nor any explanation as to the applicant’s failure to appear. In all the circumstances, it is appropriate, therefore, that the application be dismissed, pursuant to r.13.03A(c) of the Rules for failure of the applicant to appear.

9. As to the issue of costs, the applicant again was on notice that the first respondent would seek costs in this matter. The amount sought is $5,000. In all the circumstances, it is appropriate that a costs order be made. There is nothing before the Court to argue against the making of such an order. I note that the matter had been set down for final hearing, that there have been multiple copies of the Court Book prepared and that the Court Book is a quite voluminous volume; I also note various attendances at Court, and that this is the second occasion that the applicant has not attended Court, in circumstances which have occasioned additional costs by the first respondent’s legal representatives in dealing with this matter. Although the final submissions had not been prepared in this case, as is the usual course, I am satisfied that the amount sought is, in all the circumstances, a reasonable amount, given the work that has been done by the first respondent’s solicitors in responding to the application that has been made, an application for which the applicant, on two occasions at least, chose not to attend Court to press his claims.

10. I also should note for the record, I accept submissions made by Ms Warner Knight, who appeared for the first respondent before the Court today, as to the Court proceeding to consider this second application by the first respondent and I was persuaded by those submissions and proceeded on that basis. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  19 March 2008