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