Ngo v Minister for Immigration & Anor [2010] FMCA 32 (2 February 2010)

Last Updated: 9 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGO v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 32

MIGRATION – Applicant abandoning FMC application in favour of s.351 application to Minister – unsuccessful – application to set aside consent orders dismissing FMCA application – application in the alternative to extend time for review of Registrar’s decision.

Federal Magistrates Court Act 1999, s.104(2) Migration Act 1958, s.351 Federal Magistrates Court Rules 2001, r.16.05

SOK v Minister for Immigration and Citizenship & Anor [2008] HCA 50 NATE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1312

Applicant:

BOI DIEP NGO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 996 of 2008

Judgment of:

Burchardt FM

Hearing date:

30 November 2009

Date of Last Submission:

30 November 2009

Delivered at:

Melbourne

Delivered on:

2 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms G. Crafti

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr R. Knowles

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) That time be extended to the extent necessary to enable the applicant to review the decision of Registrar Allaway made on 29 September 2008.
(2) A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent signed on 26 June 2008.
(3) A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review.
(4) The First Respondent pay the Applicant’s costs fixed in the amount of $2,935.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 996 of 2008

BOI DIEP NGO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks relief in the alternative by her amended application dated 23 November 2009.
2. The first relief she seeks is that the order of Registrar Allaway be set aside pursuant to the Court’s Rules. In the alternative, she seeks that time be extended to enable her to apply for review of the decision of Registrar Allaway pursuant to s.104(2) of the Federal Magistrates Court Act 1999.
3. For the reasons that follow, I do not think I have power to set aside the decision of Registrar Allaway pursuant to the Court’s Rules, but do think that I can, and should, extend time to review the decision of the Registrar.
4. I will also, for the reasons that follow, exercise my discretion favourably to the applicant and order that the decision of the Tribunal be set aside and the matter remitted for re-hearing.

The facts

5. It is not possible to understand the peculiar situation in which the applicant finds herself without a fairly detailed recitation of the facts. What follows is taken from the chronology set out in the first respondent’s written submissions.
6. On 30 December 2005, the applicant was a granted a provisional spouse visa to come to Australia, and she arrived on 15 January 2006.
7. By about 1 June 2007, the second respondent became aware that the relationship between the applicant and her husband had broken down. This prompted an application for the continuation of the visa on the footing that the applicant had been a victim of domestic violence at the hands of her spouse. That application was rejected by a delegate of the first respondent on 27 September 2007.
8. On 12 October 2007, the applicant applied to the Migration Review Tribunal (“the Tribunal”) for a review of that decision, and on 18 July 2008 the Tribunal’s adverse decision was handed down.
9. On 13 August 2008, the applicant applied to the Federal Magistrates Court for judicial review of that decision although prior to this it seems clear that she had been sent advice about the possibility of an appeal in the case of SOK v Minister for Immigration and Citizenship & Anor [2008] HCA 50 (“SOK”), which was heard in the High Court on
   25 September 2008.
10. On 26 September 2008, the applicant met a solicitor, a Mr Grossman, who according to the applicant advised her to abandon the FMC application and instead pursue an application to the Minister directly under s.351 of the Migration Act 1958 (“the Migration Act”). Effect was given to this intention by the orders made by consent before Registrar Allaway on 29 September 2008.
11. On 16 October 2008, the High Court’s decision in SOK was handed down.
12. On 20 October 2008, Victoria Legal Aid wrote to the applicant advising her of the outcome of that appeal. In October and November 2008,
    Mr Grossman prepared and forwarded the application under s.351 of the Migration Act to the Minister, who on 14 September 2009 indicated that the application was refused.
13. It was only on 16 October 2009, clearly as a result of the s.351 refusal, that the application to this Court, which is now before the Court, was made.
14. It should be noted that the applicant does not speak or read English, and that she has deposed that at all material times she relied on
    Mr Grossman. Although Mr Grossman knew about the progress of the matter of SOK and clearly understood the effect of that decision, it is clear that he never advised the applicant of these matters
    (see applicant’s unchallenged affidavit filed 23 November 2009).
15. It should also be noted that the Tribunal did not give the applicant an opportunity to appear directly before it. This was important because the applicant’s original application failed on a relatively narrow technical ground.
16. It is a requirement of the Migration Act and the Regulations that any domestic violence application be supported by two declarations by relevantly qualified persons deposing to their conclusions as to the existence of domestic violence.
17. The applicant’s application contained one such declaration, but the second declarer neither expressly declared her qualification nor expressly indicated domestic violence.
18. Nonetheless, the material forwarded by the second declarer, a Dr Lien, would on its face suggest very strongly that Dr Lien was indeed an appropriately qualified person. It is possible, although it is certainly not clear from Dr Lien’s report of 4 September 2007, that she might have supported a finding of domestic violence. Further, it would, if the Tribunal had made the matter clear to her, have been open to the applicant to seek another appropriately qualified person to express the relevant opinion.
19. Had that matter been attended to, it would seem likely that the applicant’s application in respect of domestic violence would have been successful.

The Court’s Rules as to the Setting Aside of Judgments

20. There is no doubt that the decision of Registrar Allaway gave effect to what on the face of it were consent orders prepared by the parties. The Court’s power to set aside such a judgment is contained in r.16.05 of the Federal Magistrates Court Rules 2001. The circumstances of r.16.05(2), which prescribe the various matters which entitle the Court to vary or set aside its judgment after it has been entered, clearly do not obtain here.
21. What the applicant submitted was that subrule (3), which entitles the Court to “vary or terminate the operation of an order by a further order”, taken in conjunction with r.1.06, which entitles the Court, in the interests of justice, to dispense with compliance or full compliance with any rules at any time, gave the Court power to set aside the consent orders made by Registrar Allaway.
22. I do not accept that that is the case. The power contained in r.16.05(3) is limited to what might be described as alterations to an order. In this regard, the remarks of Lindgren J, in NATE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1312 at [9], seem to me to be directly on point.
23. Furthermore, the weight of authority referred to by the first respondent strongly suggests that the Court has no power to set aside a final judgment entered in this fashion.
24. I do not propose to traverse such authority in any greater detail, as I have come to the conclusion that the applicant should have the relief she seeks on the alternative basis upon which it is sought.
25. I would only say for finality that the general rule as to non-compliance and dispensation with rules (r.1.06) does not in my view empower the Court to go behind the clear and explicit orders limiting the Court’s authority generally, i.e. r.16.05.

The Application under Section 104 of the Act

26. Section 104 of the Act provides that a review of a decision of a Registrar is a hearing de novo (r.20.03).
27. Here, the first respondent strongly opposes the extension of time. Counsel points, as was the case in submissions relating to the application to set aside pursuant to the Court’s Rules, to:
    1. the prejudice to the Minister if consent orders are to be routinely set aside;
    2. the lengthy delay occasioned by the applicant between the decision of Registrar Allaway and the application now before the Court; and
    100. the fact that the applicant made a tactical decision not to proceed with the original application which has proved unsuccessful.
28. I readily accept the force of all the submissions made in this regard, and the strong statements made by the Federal Court in the cases referred to by the first respondent going to the desirability of ensuring that an applicant who makes a tactical decision be required to abide by its outcome.
29. Given that this is so, it is not necessary to traverse the authorities in support of the preceding propositions in detail.
30. Nonetheless, this is a case in which in my view the proper interests of the administration of justice require that time be extended to enable the application for review to be brought. In this regard, there are two things that in my opinion stand out. First, whatever the state of mind of Mr Grossman, this is an applicant who does not speak or read English. On the materials as filed, it is not open to me to conclude that she made an informed decision to proceed in the way that she did. It seems more probable than otherwise to me as a matter of ordinary experience that she simply did what her advisor suggested she do.
31. Second, the applicant would, had she proceeded with her application, (in the light of the way that the events transpired), been able to rely upon the High Court’s decision in SOK in her favour. This would have meant more probably than otherwise in my view that the decision of the Tribunal would have been set aside. The Tribunal did not give the applicant an opportunity to address it and this would in my view have constituted jurisdictional error.
32. Given that these are all conclusions clearly open on the materials and given the wholly exceptional nature of the circumstances of this case, I therefore am entitled to, and indeed I do, re-exercise the discretion exercised by Registrar Allaway. There was no opposition by the first respondent to my re-exercising the discretion in the event that I decided it was appropriate to do so.
33. In exercising this discretion, I take into account the fact that the applicant has clearly withdrawn her consent to the consent orders dismissing her action. Rather, it is clear she seeks judicial review.
34. While the Minister is correct to talk about possible prejudice as to negotiation of settlements generally, the circumstances of this case are so unusual, and the merits of the application on their face so strong, that it is not likely there will be many such cases in the future.
35. With this single exception, the Minister was not able to point to any prejudice other than the general desirability of finality in litigation. I accept the force of that submission, but in my view it is outweighed by the matters in the applicant’s favour.
36. I should note, finally, that there has been criticism of the Minister for proceeding with the consent minutes in the face of the fact that it was known at the time that Registrar Allaway made the consent orders that the decision in SOK was reserved.
37. I do not think there is any force to this criticism. The decision had not been handed down, and the decision of the Full Federal Court in SOK was still good law at that time. The Minister was entitled, and on one view obliged, to deal with the application according to the law as it stood at the time.
38. There is no proper room for criticism of the first respondent’s conduct of the proceeding generally. Rather, there is ample room for criticism of the applicant, albeit that as I have already found, the criticism redounds perhaps more to her advisor than to her.

Conclusion

39. In all the circumstances, I will extend the time for the application for review of Registrar Allaway’s decision and I will make the necessary orders to remit the matter to the Tribunal for hearing according to law.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 2 February 2010