Bizuneh v Minister for Immigration & Multicultural Affairs

THE COURT 1 This is an application for leave to appeal from the decision of a judge of this Court, made on 10 November 1999, directing the Registrar not to accept a notice of motion lodged by the applicant for filing in the New South Wales District Registry of the Court. The direction was given on the ground that the applicant's notice of motion was frivolous or vexatious in that the application made by it, to set aside a previous order which had been entered by consent, "would be bound to fail". 2 The question raised by the appeal is whether the learned primary judge erred in so doing. That question may be seen as involving a wider one, namely, whether the consent order should be set aide. If the consideration of that question required further procedural orders, we would propose the making of such orders. It may be, but in the view we take it is unnecessary to pursue this problem, that there are procedural difficulties: see de Lasala v de Lasala [1980] AC 546 at 561. 3 The applicant is a national of Ethiopia. He was born in Addis Ababa. He arrived in Australia as a visiting academic on 6 July 1997. On 15 August 1997, he made application for a protection visa. His application relied upon the contention that he was a non-citizen in Australia to whom Australia had protection obligations under the well-known United Nations Refugees Convention as amended by the Refugees Protocol. That is to say, it was an application in which it was asserted that he was a refugee to whom the Convention applied. 4 On 21 May 1998 a delegate of the Minister refused the applicant's application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal (RRT). The RRT affirmed the decision of the Minister's delegate on 12 May 1999. 5 On 1 June 1999 the applicant applied to the Federal Court for judicial review of the RRT's decision. The applicant's grounds for review included an allegation that the Tribunal was biased and that the RRT had not provided sufficient opportunity for his case to be presented. 6 On 4 June 1999 the respondent's solicitor forwarded to the applicant a copy of a memorandum of appearance to that application under cover of a letter in which he was "strongly urged" to obtain legal advice and representation. Also enclosed with that letter was a list of agencies which might provide legal assistance. It appears that the applicant unsuccessfully sought legal aid from the Law Society of New South Wales. The applicant was not represented in his application for judicial review. It was submitted on his behalf that he had "fruitlessly tried all avenues" to obtain legal representation for his application for judicial review. 7 Some time after filing his application for judicial review, the applicant wrote to the Minister for Immigration and Multicultural Affairs requesting that the Minister exercise his discretion under s 417 of the Migration Act 1958 (Cth) (the Act). In an affidavit sworn on 28 October 1999 the applicant states that he expected a favourable response from the Minister. 8 On 1 August 1999 the applicant wrote directly to the learned primary judge to explain that he was "dropping" his application for judicial review because he was not able to obtain legal representation and due to the fact that he was "much exhausted by the lengthy process for the last two years". 9 On 9 August 1999 the applicant attended the offices of the Australian Government Solicitor and met with the respondent's solicitor, Ms Nanson, for approximately an hour. In an affidavit sworn 20 January 2000 Ms Nanson states that the applicant informed her that he wished to discontinue his application for judicial review. The affidavit further states that Ms Nanson and the applicant discussed the applicant's lack of legal representation and that Ms Nanson suggested that the applicant contact the New South Wales Bar Association for assistance, a suggestion to which Ms Nanson says the applicant's response was "I don't want to". Ms Nanson says that she then confirmed with the applicant that he wished to discontinue his application. Finally, Ms Nanson swears that she drafted a consent order which she explained to the applicant and which was subsequently signed by Ms Nanson and the applicant. The applicant makes no challenge to this affidavit. 10 On 13 August 1999 Tamberlin J directed that orders be entered in terms of the consent order ("the Consent Order") which was signed by the applicant and Ms Nanson on 9 August. The orders were entered on 30 August 1999. 11 On 14 October 1999 the Department of Immigration and Multicultural Affairs wrote to the applicant to inform him that the Minister had decided not to consider exercising his discretion under s 417 of the Act. The letter requested that the applicant attend the offices of the Department to discuss his "status in Australia". After receipt of the letter the applicant attended the offices of the Department and has since been in detention. 12 On 28 October 1999 the applicant filed a notice of motion seeking an order that the consent orders be set aside. 13 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 reasons published on that date, ordered that the Registrar refuse to accept or issue the notice of motion on the ground that it was frivolous or vexatious. 14 On 10 December 1999 the applicant lodged a notice of appeal and an application for an extension of time to file and serve notice of appeal. The applicant's grounds of appeal included an assertion that the primary judge had not taken into account the fact that the applicant was not represented when the consent order was signed and that he had relied upon the Court for assistance which was not forthcoming. The applicant's grounds for an extension of time to file and serve the notice of appeal included contentions that: (a) the applicant was not represented; (b) the applicant had no knowledge of the appeal process; (c) the applicant was in detention and did not have access to the necessary information; and (d) the applicant's notice of appeal was mistakenly sent to the High Court of Australia.