FEDERAL COURT OF AUSTRALIA

SZMIC v Minister for Immigration and Citizenship (No 2) [2010] FCA 800

THE COURT ORDERS THAT:

1.         The appellants’ application for leave to appeal from the decision of the Federal Magistrates Court dated 29 March 2010, is dismissed.

2.         The appellants are to pay the first respondent’s costs.

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

BACKGROUND

1                          On 27 May 2008, the appellants, whom I will henceforth refer to as the applicants, filed an application for review of the decision of the Refugee Review Tribunal (the Tribunal) of 10 April 2008.  The Tribunal upheld the decision of the delegate of the first respondent to refuse the applicants protection visas.

2                          At the commencement of the hearing of the application for review in the Federal Magistrates Court on 4 August 2008, the applicants made further oral claims.  The hearing was stood over to permit the applicants to make further amendments to their already amended application.  The application was relisted for hearing on 8 December 2008.  However, before that hearing, the applicants filed a minute of consent orders agreeing to the dismissal of the application for review with costs, and on 24 November 2008, the court made orders in terms of the minute.

3                          On 14 December 2009, more than a year after the consent orders had been made, the applicants filed an application before the Federal Magistrates Court seeking to set aside the consent orders.

4                          On 26 February 2010, this matter came before me.  At that stage the matter was characterised as an application for an extension of time within which to file an appeal from the consent orders made by the Federal Magistrate on 24 November 2008, dismissing the applicants’ application for judicial review.

5                          In my decision of 26 February 2010 (SZMIC v Minister for Immigration and Citizenship [2010] FCA 177), I referred the matter back to the Federal Magistrates Court.  It appeared that the merits of the applicants’ application to set aside the consent orders had not been dealt with by the Federal Magistrates Court; and the matter had been instead referred directly to this Court.  I concluded that the status of the application made to the Federal Magistrates Court was uncertain and that the applicants needed to write to the Federal Magistrates Court to seek clarification.  I also adjourned this proceeding sine die with liberty to each party to relist it.

FEDERAL MAGISTRATE’S DECISION

6                          On 29 March 2010, the Federal Magistrates Court heard and dismissed the applicants’ application to set aside the consent orders.

7                          The reasons of the Federal Magistrate reveal that there was only one affidavit which was admitted into evidence in the hearing before the Federal Magistrate.  This was an affidavit of the first applicant affirmed on 13 December 2009.

8                          Paragraph 4 and para 5 of the affidavit read as follows:

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.

9                          The Federal Magistrate made the following finding at [9] of the reasons for decision:

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.

10                        Before the Federal Magistrate, it was accepted by the parties that the applicants could not satisfy the requirements set out in r 16.05(2) of the Federal Magistrates Court Rules 2001 to set aside the consent orders.  However, the applicants contended that it was open to the court to set aside a consent order whenever it was in the interests of justice to do so.  The applicants relied upon certain observations made in the case of Bizuneh v Minister for Immigration and Multicultural Affairs [2000] FCA 126 (Bizuneh).  The Federal Magistrate rejected that contention.  The Federal Magistrate accepted the contention of the first respondent that the appropriate test to apply in the circumstances was that referred to in the following observations of the High Court in Harvey v Phillips (1956) 95 CLR 235 (Harvey) at 243-244:

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 to 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.

11                        The Federal Magistrate found that the applicants had neither contended for, nor established, any of the qualifying grounds referred to in Harvey, which would permit the court to set aside the consent orders.   The Federal Magistrate observed that the question of whether it was in the interests of justice to set aside the consent orders would be a consideration once one of the relevant qualifying grounds had been established.

12                        The Federal Magistrate also said that in any event, it was not in the interests of justice that the consent orders be set aside.

13                        First, the Federal Magistrate recited the history of the proceeding and stated that the applicants had had several opportunities to prosecute their application but had chosen to take a different course which was open to them.  The Federal Magistrate said that there was no evidence before the court proffering any explanation as to the applicants’ delay between the entering of the consent orders and the filing of the application to set aside the consent orders, beyond their decision to pursue Ministerial intervention.

14                        Secondly, the Federal Magistrate said that there was a public interest in having administrative decisions finalised.  The Federal Magistrate observed that the applicants gave only one reason for wanting to set aside the consent orders, namely, that having failed in their application to the Minister, they wanted to pursue the application for review again.  This, said the Federal Magistrate, was not a ground which would allow the court to set aside the consent orders.

APPLICATION FOR LEAVE TO APPEAL

15                        On 6 April 2010, the Court received a facsimile from the applicants enclosing the reasons of the Federal Magistrate of 29 March 2010.  The covering letter requested that this matter be relisted for hearing.

16                        The matter was duly listed and submissions were filed by both parties.  In their submissions, the applicants complained about errors said to have been made by the Federal Magistrate in the decision of 29 March 2010.

17                        The first respondent did not oppose the applicants now characterising their application before this Court, as one challenging the decision of the Federal Magistrate made on 29 March 2010.  Counsel for the applicants agreed that the decision of the Federal Magistrate not to set aside the consent orders was interlocutory and, therefore, required leave to appeal.  The application before me, therefore, proceeded as an application for leave to appeal against the decision of the Federal Magistrate made on 29 March 2010.

18                        The matter proceeded on the basis that the applicants proposed to rely on two grounds of appeal.  These two proposed grounds of appeal were derived from the complaints made by the applicants in their written submissions.

19                        The first proposed ground was that the Federal Magistrate erred in failing to determine that it was in the interests of justice that the consent orders be set aside

20                        The second proposed ground was that the Federal Magistrate erred in not admitting relevant evidence and so had not afforded the applicants procedural fairness.

21                        For the applicants to obtain leave to appeal, they must show that the Federal Magistrate’s decision is attended with sufficient doubt so as to warrant leave being granted, and that substantial injustice will result from a refusal of such leave, assuming that the decision was wrong.

THE FIRST PROPOSED GROUND OF APPEAL

22                        The applicants contended that in failing to determine that the consent orders should be set aside in the interests of justice, the Federal Magistrate:

(a)        failed to consider whether there was merit in the applicants’ application to review the decision of the Refugee Review Tribunal;

(b)        erred in not distinguishing Harvey,because in Harvey, the party applying to set aside the consent judgment had been legally represented at the time of making the consent order, whereas in this case the applicants had not been legally represented;

(c)        erred in concluding that there was an insufficient explanation for why the applicants’ application to set aside the consent orders had been filed some 12 months after the orders had been made.

23                        As to the first error alleged, the applicants contended that the Federal Magistrate failed to have regard to the merits of the applicants’ application for review of the decision of the Tribunal.  As mentioned, before the Federal Magistrate, counsel for the applicants referred to the case of Bizuneh in support of the contention that the court was at large in determining whether to set aside a consent order because the sole criterion was whether it was in the interests of justice to set aside the consent order.

24                        However, as the Federal Magistrate correctly found, the reference by the Full Court in Bizuneh to the interests of justice, was made in the context of whether it is in the interests of justice to set aside the consent orders, assuming one of the qualifying grounds for setting such an order aside has been established.  This is apparent from the emphasis applied by the Federal Magistrate to part of the following observations at [21] in Bizuneh which were set out in the Federal Magistrate’s reasons for decision:

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.  (Emphasis applied by the Federal Magistrate.)

25                        The Federal Magistrate went on to find that the applicants had not established a qualifying ground for setting aside the consent orders.  In those circumstances, the question of whether the consent orders should be set aside on the grounds that it is in the interests of justice to do so, did not arise.

26                        It followed from the Federal Magistrate’s findings that the merits or otherwise, of the applicants’ application to review the decision of the Tribunal also did not arise as a consideration.  In failing to have regard to the merits of that application, the Federal Magistrate did not err.

27                        As to the second error alleged, the appellants contended that the Federal Magistrate erred in relying on Harvey, when it was distinguishable, on the facts, from this case.

28                        The Federal Magistrate relied upon Harvey only for the purpose of adopting the statement of general principle expressed in the observations referred to at [10] above.  The specific facts in Harvey did not impinge upon the statement of general principle adopted by the Federal Magistrate.  Accordingly, there is no merit in this component of the first proposed ground of appeal.

29                        As to the third error alleged, the applicants contended that the Federal Magistrate erred in concluding that there was an insufficient explanation for why the application for setting aside the consent orders, had been filed some 12 months after the orders were made.

30                        The applicants contended that there was evidence providing such an explanation before the Federal Magistrate.  This evidence, contended the applicants, was comprised in the evidence which disclosed that the applicants had decided to pursue an alternative remedy, namely, approaching the Minister directly in order to obtain visas through the exercise of the Minister’s discretion.

31                        In my view, there is no substance in this component of the proposed first ground of appeal.  This is because the Federal Magistrate took that evidence into account.  The Federal Magistrate said that other than evidence of that fact, there was no evidence explaining the delay.  The Federal Magistrate did not err.

32                        Accordingly, there is no merit in the three component elements of the first ground of appeal.

THE SECOND PROPOSED GROUND OF APPEAL

33                        By the applicants’ second proposed ground of appeal, the applicants contended that the Federal Magistrate had denied them procedural fairness by rejecting the tendering of a psychological report on which they intended to rely.

34                        There was no transcript of the proceedings before the Federal Magistrate in evidence.  However, based on the statements of counsel from the Bar table before me, I understand that they accepted the following to be common ground.

35                        At the hearing before the Federal Magistrate, the applicants’ counsel, sought to tender a report from a psychologist, Ms Pearl Fernandes.  Mr Markus, who represented the first respondent, objected to the tender of the report on the grounds that the report was irrelevant.  Counsel for the applicants said he pressed the tender, but made no submissions directed towards establishing the relevance of the report.  The Federal Magistrate rejected the tender of the report.

36                        Although the applicants couched their complaint in terms of a denial of procedural fairness, I understood the gravamen of the applicants’ complaint to be that the Federal Magistrate erred by not admitting the evidence of the psychologist.

37                        Before me, counsel for the applicants said that the evidence of the psychologist went to explaining the delay in setting aside the consent orders, and why the applicants decided to approach the Minister.  However, on the basis of what I understand to be common ground, the applicants made no submissions to that effect to the Federal Magistrate, and simply pressed for the tender of the psychologist’s report in the face of the respondents’ objection as to its relevance.  In the absence of submissions to that effect having been made to the Federal Magistrate, it cannot be contended that the Federal Magistrate erred in rejecting the tender of the psychologist’s report.  It was open to the applicants to have made the submissions they made in this Court, before the Federal Magistrate, but they did not do so.

38                        There is, therefore, no merit in the applicants’ second proposed ground of appeal.

39                        In any event, during the hearing, my attention was directed to a copy of the psychologist’s report.  The psychologist’s report does not address, nor does it provide probative evidence capable of establishing any of the qualifying grounds for setting aside a consent order, nor a justification for not making a timeous application to set aside the consent orders.

40                        I note, for the sake of completeness, that the applicants filed an affidavit dated 6 April 2010 of the first applicant, which was not read by the applicants’ counsel at the hearing.  Mr Markus, who appeared for the first respondent placed on record, however, that had the applicants sought to read the affidavit, he would have objected to it because it was evidence that was not before the Federal Magistrate.  Had the applicants sought to read the affidavit, I would have upheld the first respondent’s objection.

41                        The applicants have failed to show that the decision of the Federal Magistrate is attended by sufficient doubt as to warrant the granting of leave to appeal against that decision.

42                        The applicants’ application for leave to appeal is dismissed with costs.

Associate:

Dated:         29 July 2010