FEDERAL COURT OF AUSTRALIA

SZMIC v Minister for Immigration and Citizenship [2010] FCA 177

THE COURT ORDERS THAT:

1.                  This application is adjourned to a date to be fixed.

2.                  The Federal Magistrates Court’s file in this matter is referred back to the Federal Magistrates Court.

3.                  By 4 pm on 12 March 2010, the applicants are to write to the Federal Magistrates Court forwarding a copy of these written reasons and seeking clarification of the status of their motion dated 14 December 2009.

4.                  Each party is at liberty to relist the application for extension of time on two days written notice to the other parties.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time, within which to file an appeal from a consent order, made by a Federal Magistrate dismissing the applicants’ application for judicial review of a decision of the Refugee Review Tribunal.

2                     On 14 December 2009, some considerable time after the consent order had been made in the Federal Magistrates Court, the applicants filed a motion under r 16.05 of the Federal Magistrates Court Rules 2001.  That rule empowers the Federal Magistrates Court to set aside a consent order in certain circumstances.  The evidence before this Court is to the effect that the Federal Magistrate did not deal with the merits of the motion but said that the matter should go on appeal to this Court.

3                     The Court has possession of the Federal Magistrates Court’s file in respect of the applicants’ application for judicial review.  The applicants’ motion of 14 December 2009, is on the file.  However, I am not in a position to determine, on the evidence and materials before me, the precise status of the motion.  I am uncertain whether the Federal Magistrate formally concluded that the Federal Magistrates Court did not have the power to deal with the motion, and so formally dismissed the motion on that ground, or whether the Federal Magistrate informally declined to deal with the motion at that particular time.

4                     Mr Markus contended that the status of the motion was the same as that in the case of Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126 (Bizuneh).  In that case, a judge in this Court directed a registrar of this Court to refuse to accept a motion filed by an applicant seeking to set aside consent orders.  The applicant appealed against that decision to the Full Court of this Court.  The Full Court, at [12]-[13], described what had happened before the primary judge:

On 28 October 1999 the applicant filed a notice of motion seeking an order that consent orders be set aside.

The Deputy District Registrar made an application under order 46 rule 7A of the Federal Court Rules to the primary judge for an order directing him to refuse to accept or issue the notice of motion filed by the applicant on 28 October 1999.  On 10 November 1999, his Honour considered that application and, for the reasons published on that date, ordered the Registrar refuse to accept or issue the notice of motion on the ground that it was frivolous or vexatious.

5                     However, the circumstances, at least on the face of it here, appear to be different from those in Bizuneh.  First, the notice of motion is on the Federal Magistrates Court’s file and so it does seem to have been accepted.  Further, the Federal Magistrate does not appear to have given formal reasons for the decision.  In Bizuneh, the judge gave reasons for his decision, so there was no doubt as to the status of the motion and why it had been accorded that status.

6                     It is, in my view, important that the applicants be fully apprised of the status of their motion of 14 December 2009.  This is because there is a serious question as to whether this Court has in its appellate jurisdiction, the power to set aside a consent order.  (See, SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037; SZCZF v Minister for Immigration and Citizenship (2009) 107 ALD 138 and MZXSV v Minister for Immigration and Citizenship [2009] FCA 1025.)

7                     If it be the case that this Court does not have jurisdiction to set aside a consent order on appeal, then the only rights that the applicants would have to seek to revisit the consent order would be those that they have before the Federal Magistrates Court.  Whether their rights in the Federal Magistrates Court have been exhausted or not, and if so, why, are important issues for the applicants.

8                     I will adjourn this application sine die so that the applicants can seek clarification from the Federal Magistrates Court, as to whether their rights before the Federal Magistrates Court have been fully exhausted, and, if so, the grounds on which this has occurred.

9                     I make no comment on whether there is any merit in the applicants’ application to set aside the consent order; and by adjourning this application I should not be taken to be suggesting that there is.  However, it does seem to me important – since this may be the only avenue available to the applicants – that clarification be obtained as to whether that avenue has been fully exhausted in the Federal Magistrates Court.

10                  Once the status of the applicants’ motion has been clarified then it would be up to the legal representatives of the applicants to decide what further course, if any, they might take.  That may mean bringing a different type of application and the abandoning of this one, but until the status is clarified, I do not think it is fair to dismiss this application.

Associate:

Dated:         3 March 2010