FEDERAL COURT OF AUSTRALIA

MZXSV v Minister for Immigration and Citizenship [2009] FCA 1025

MZXSV v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 538 of 2008

RYAN J

11 SEPTEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The motion on notice dated 3 September 2009 be refused.

2.         The applicant pay the respondent’s costs, to be fixed in the amount of $1,200.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 15 July 2008, the applicant filed in this Court a Notice of Appeal from orders of the Federal Magistrates Court, MZXSV v Minister for Immigration and Citizenship [2008] FMCA 491. By those orders, the Magistrates Court dismissed an application under the Migration Act 1958 (Cth) (“the Migration Act”) for review of a refusal to grant the application a protection visa. The respondent duly appeared and, on 4 August, a Registrar of the Court gave directions to facilitate the hearing of the appeal. On 17 November, pursuant to a minute of consent orders faxed to the Court on the same day, Sundberg J made orders in these terms:

THE COURT ORDERS BY CONSENT THAT:

1.         The appeal filed on 15 July 2008 be dismissed.

2.         There be no order as to costs.

2                          The applicant now, by notice of motion filed on 3 September 2009, moves the Court for these orders:

1.         That the orders made and entered by Justice Sundberg on 17 November 2008 be set aside, and

2.         That I would be allowed to file and serve my application upon appeal out of time (notice of appeal – leave for filing out of time)

3                          The circumstances in which the applicant moves the Court for those orders are set out in his supporting affidavit which, so far as is relevant, recites;

2.         On 15^th July 2008 I filed application for Appeal with this Honourable Court… This application was processed and accepted as within time…

3.         Subsequently, on 14^th November 2008 by way of consent I withdrew my application for Appeal and on 17^th of November 2008 Justice Sundberg of this Honourable Court accordingly made Orders dismissing my Appeal with no order as to costs.

4.         The reason for the withdrawal of my application for Appeal was that I met a person with whom I fell in love with and we decided to marry and upon advice of a Migration Agent proceeded to solemnize our marriage and I applied for residency in Australia as the spouse of an Australian citizen.

5.         However, the Migration Agent misled me in that my application for residency in Australia is in fact an offshore visa application and I would have to depart Australia for my home country to await the decision on my Spousal visa application.

6.         Due to the fact of my fear of persecution if I were to return home, I cannot return home as such for my application to be processed.

7.         Hence, I am forced to apply to this Honourable Court presently for appeal again, and seek to set aside the Orders of Justice Sundberg made 17 November 2008.

4                          To understand why the orders sought by the applicant cannot be made on the present motion it is necessary to notice something about the nature of orders of the Court made by consent. Order 35 r 10A of the Rules of this Court provides as follows:

Consent orders

(1)        A Judge may make an order in accordance with the terms of a written consent of the parties to a proceeding, or of the legal practitioners on the record as representing the parties, by initialling or otherwise annotating the written consent and placing it on the Court file.

(2)       The order must state that it is made by consent.

(3)        The order is of the same force and validity as if it had been made after a hearing by the Judge.

5                          As is clear from the terms of O 35 r 10A(3), the applicant, having consented to the order set out at [1] above, is in the same position as he would have been had his appeal to this Court had proceeded to a hearing and then been dismissed. To obtain the relief he seeks, it is necessary for him to persuade the Court that the consent orders ought be set aside, or that leave to appeal out of time should be granted.

6                          Order 35 r 7 of the Federal Court Rules deals with the Court’s power to set aside a judgment by providing:

Setting aside

(1)       The Court may vary or set aside a judgment or order before it has been entered.

(2)       The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:

(a)       the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

(b)       the order was obtained by fraud;

(c)        the order is interlocutory;

(d)       the order is an injunction or for the appointment of a receiver;

(e)        the order does not reflect the intention of the Court; or

(f)        the party in whose favour the order was made consents.

(3)       A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.

(4)       Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. (emphasis added)

It will readily be appreciated that it is not now open to the Court to vary or set aside Sundberg J’s order under r 7(1), as it was entered on 17 November 2008. The powers conferred by r 7(2) are similarly unavailable as, here, the Court was exercising its appellate jurisdiction on appeal from the Federal Magistrates Court.

7                          The considerations arising from VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 and DJL v The Central Authority (2000) 201 CLR 226 also need to be addressed. In VTAG, which Mr Cheung, who appeared as counsel for the applicant, cited, and to which the applicant has referred in his affidavit in support of the application, a Full Court of this Court held that the Court has power by consent to set aside final orders which have been made by consent and were the result of a genuine misunderstanding. As their Honours said at 297 [31];

In the absence of anything to put the Court on notice as to any improper purpose, or any rights of third parties which might be affected, it would usually be sufficient for the Court to act on the expressed consent of the parties.

In the present case the Minister does not consent to, but actively opposes, the setting aside of the orders made by Sunderg J. There is therefore no room for application of the principle expressed in VTAG .

8                          In DJL v The Central Authority, the High Court held that a Full Court of the Family Court did not have power to re-open final orders of the Full Court which had been completed and duly entered. Their Honours observed, at 248[46];

A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution. Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution.

9                          For those reasons, I do not consider that the orders made by Sundberg J are susceptible to being set aside, in the absence of grounds of the kind identified in Harvey v Phillips (1956) 95 CLR 235, where it was observed, at 243-4;

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.

10                        I was also referred by Mr Cheung to Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126, a judgment of a Full Court of this court comprised by Burchett, Carr and R D Nicholson JJ, which was published on 17 February 2000. However, in that case, the consent order had been made in the original jurisdiction, not the appellate jurisdiction, of this Court.  Moreover, the Full Court observed at [19] of its reasons:

What is characterized as a mistake is really no more than a tactical decision which failed to yield the desired result.  The applicant hoped that the Minister would exercise his power under s 417 of the Act, whereas, in the result, the Minister did not do so.  There was no mistake in the relevant sense.  The applicant knew perfectly well what the effect of the consent order would be, and in particular, that it would terminate his application to the Court.

In my view, those observations can be paraphrased to apply with equal force to this case, where the applicant – apparently on advice from a migration agent – took a tactical decision which failed to yield the desired result because a spousal visa was not available in his circumstances to be granted while he remained in Australia.  There was no mistake, however, as to the effect of the consent order, which was made on legal advice and, apparently, with full knowledge that it would terminate the applicant’s appeal to this Court. 

11                        I then turn to the applicant’s request for leave to appeal out of time. Unfortunately for him, this relief is not available. By s 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), this Court has jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction, amongst others, under the Migration Act. In this case the appellate jurisdiction of the Court was exercised by a single Judge pursuant to either s 25(1AA)(a) or s 25(2B)(b) of the Federal Court Act. In either event, there is no appeal to a Full Court from orders made by a single Judge exercising the appellate jurisdiction of the Court. That is the effect of s 24(1AAA) of the Federal Court Act, which provides:-

24        Appellate jurisdiction

…

(1AAA)             An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.

As already noted, O 35 r 10A(3) of the Rules of this Court provides that an order made by consent has the same force and validity as if it had been made after a fully contested hearing. Any appeal which lies from the order of Sundberg J exercising the appellate jurisdiction of this Court can only be brought by leave in the High Court.

12                        In reaching the conclusions set out above, I have derived assistance from the reasons of Flick J in SZCZF v Minister for Immigration and Citizenship [2009] FCA 208, in which his Honour was dealing with an application made in similar circumstances. His Honour’s analysis confirms, in my view, the conclusions which I have reached.

13                        Ms Miller, who appeared as counsel for the Minister, indicated, in the response to a question from me during her submissions, that there are discretionary avenues whereby the Minister can mitigate the operation of the requirement which entails that the applicant can only apply for a spouse visa after he has left Australia.  However, the exercise of any discretion of that kind is not compellable by any orders which can be made by this Court.  It follows that, for the reasons I have endeavoured to explain, the applicant is not entitled to the relief he seeks and the motions must therefore be refused with costs.

Associate:

Dated:         14^th September 2009.