VTAG v Minister for Immigration & Multicultural & Indigenous Affairs

Appeal 8 In March 2004 the appellant was transferred to Baxter Immigration Detention Centre. Counsel who had appeared for him (on a pro bono basis) before Weinberg J told him that he could not act for him any more. 9 On 6 May 2004 the appellant lodged a notice of appeal which he had prepared himself. At the end of August he received from the Court notification that the appeal had been listed for hearing at 2.15 pm on Tuesday 9 November 2004 in Melbourne. The notification required him to provide copies of his outline of submissions five clear working days before the date of that hearing of the appeal. 10 On about 7 September 2004 the appellant received a fax from the Court advising that a video conference would be arranged for the hearing of the appeal on 9 November. He also received a letter dated 3 September 2004 from Clayton Utz, solicitors for the Minister, enclosing a copy of the notice of listing and directions of the Chief Justice requesting submissions. At about this time the appellant resumed contact with the barrister who had appeared for him before the primary judge. This was not one of the counsel who appeared for the appellant (also pro bono) before us. 11 The appellant had problems because he had been moved to another part of Baxter and his documents remained in the part where he had been. The appellant alleges some mistreatment in Baxter. These allegations are, in general terms, denied by counsel for the Minister. No evidence has been put on in response and in the circumstances we need not pursue this aspect further. 12 The appellant had a number of telephone conversations with his barrister. There was no Swahili interpreter involved. The appellant only understood "bits and pieces" of what the barrister said. He did understand that the barrister did not think he would have much chance on the appeal. In the third conversation with the barrister there was discussion as to whether the appellant should write to the Minister and ask for a visa or whether he should keep going with his appeal. The barrister helped him draft a letter to the Minister. The barrister said that he had spoken to the appellant's fiancée about this. The appellant wanted to know if he could write to the Minister and still go ahead with his appeal. The barrister said he did not know. The appellant asked different people about this and got conflicting answers. 13 On about 29 October 2004 the barrister telephoned the appellant. He said something like "Don't worry about the case, but let's take this letter to the Minister". The appellant said he wanted to know about his case and whether it was going to be closed. The barrister said he would get back to him. The appellant's understanding was that he had agreed for the barrister to write the letter to the Minister but no decision had been made about the appeal. 14 Shortly afterwards the appellant received in the mail from the barrister a copy of a fax he had sent to Clayton Utz. The letter enclosed minutes of proposed consent orders dismissing the appeal and a copy of the letter written on behalf of the appellant to the Minister seeking the exercise of discretion under s 417 of the Migration Act 1958 (Cth). He has only recently had the message translated into Swahili and he was "really surprised" as it was not what he thought that he and the barrister had talked about. He did not understand many of the things the barrister was saying to him. He definitely did not agree to close the case. He does not blame the barrister and accepts there was probably a misunderstanding. 15 On 5 November 2004 the appellant sent a fax which he had prepared himself to the Federal Court asking for more time to file and serve the submissions and giving explanations for the delay because of his alleged mistreatment. He did not hear back from the Court. 16 On 29 October 2004 Clayton Utz faxed to the Associate of Gray J minutes of proposed consent orders signed by Clayton Utz and the appellant's barrister. The minutes indicated that the parties consented to the Court making orders that: "1. The appeal is dismissed without adjudication. 2. The appellant pay the respondent's costs." 17 As already mentioned, orders were made in those terms by Marshall J on 4 November 2004 and entered on 9 November 2004 pursuant to Order 36 of the Federal Court Rules.

Can a consent order be set aside by consent? 18 In making the order of 4 November 2004 Marshall J was exercising the jurisdiction of a Full Court conferred on a single judge by s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth). The whole of the sub-section is relevant. It provides as follows: "(2B) A single Judge or a Full Court may: (a) join or remove a party to an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ba) or (bb); or (c) give directions about the conduct of an appeal to the Court, including directions about: (i) the use of written submissions; and (ii) limiting the time for oral argument." 19 The general rule was stated by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530 in these terms: "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have the power to reinstate a proceeding of which it has finally disposed." 20 That statement was recently applied by the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [38]. However, as the statement in its own terms makes clear, the rule is subject to relevant statutory provisions, in the present case s 25(2B)(b). 21 Looking at s 25(2B) as a whole, most of the subject matter seems to be of a nature that one would expect the legislature contemplated that orders made thereunder were not made once and for all. For example, if a single judge or a Full Court gave directions limiting the time for oral argument (par (c)(ii)) it could hardly be suggested that it was beyond the power of the court to extend that time (or indeed shorten that time) should circumstances dictate. 22 We do not see that par (bc) evinces an intention that only orders under (ba) and (bb) can be varied or set aside. Paragraph (ba) was introduced in 2002 by the Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) and pars (bb) and (bc) in their present form in 2004 by the Law and Justice Legislative Amendment Act 2004 (Cth). They cannot alter the meaning of par (b) when it was introduced as part of s 25B in 1994. 23 Section 25(2B)(b) itself is concerned with consent orders which dispose of an appeal; that is to say it empowers the making of consent orders which allow appeals, and set aside orders of single judges, as well as orders which dismiss appeals. An order allowing an appeal (whether by consent or otherwise) is a formal statement to the world by the Court that the primary judge fell into error. If the parties subsequently agree that the allowing of the appeal by consent was itself an error, the public would think it strange if the Court was compelled to perpetuate the formal but erroneous record. People might suspect that legalistic formalism had triumphed over common sense. 24 Statutory powers have on occasions been construed as necessarily conferring a power to unmake or revoke the order for which the statute expressly conferred power: see for example Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 25 ALD 418. 25 In Tresize v National Australia Bank Limited (1994) 50 FCR 134 a Full Court was concerned with an application to set aside a deed of compromise and consent judgment made in consequence thereof on the ground that the compromise had been procured by undue influence. The judgment had been entered. The Full Court upheld the order of Northrop J who had dismissed the application as disclosing no reasonable cause of action. The Full court dealt with the claim on the merits and implicitly proceeded on the basis that there was power to set aside the consent judgment. 26 There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not enquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court. 27 In Permanent Trustee (Canberra) Limited v Stocks & Holdings (Canberra) Ltd (1976) 28 FLR 195 Brennan J when a judge of the Australian Capital Territory Supreme Court had to deal with a consent application to set aside a consent judgment. The judgment had been perfected and regularly entered. The application proceeded on the basis that the agreement under which the consent order was made was not voidable. His Honour (at 198) referred to the general rule that a perfected judgment cannot be recalled or varied but noted some exceptions: "…those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not affect injustice; those which are authorised by statute; and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable." 28 However, as his Honour noted (at 199) the parties "chose another ground" for the application. The question was, in his Honour's words: "Is there jurisdiction to set aside by consent a judgment regular in every respect? And if the court has that jurisdiction, are there any circumstances which ought to condition its exercise?" 29 His Honour reviewed a number of authorities: The Bellcairn [1885] P 161, Hammond v Schofield [1891] 1 QB 453, Ainsworth v Wilding [1896] 1 Ch 673, Firm of RMKRM v Firm of MRMVL [1926] AC 761 at 772, Ivanhoe Gold Corporation Limited v Symonds (1906) 4 CLR 642 at 670 and Re Caithness; Lesley v Caithness (1892) 36 Sol Jo 216. His Honour concluded (at 201) that the better view appeared to be that the court had jurisdiction to set aside a regular judgment if the parties to the judgment consented to the court doing so. However the court should decline to make an order if a third party might be prejudiced. In the event, Brennan J was prepared to make the order sought, subject to enquiries being made as to possible third parties who might be prejudiced. 30 The question in this case is whether the Federal Court can exercise the jurisdiction which Brennan J did in Permanent Trustee. The Federal Court, as a statutory court, does not have any inherent jurisdiction: DJL at [25]. (Although all Australian courts are statutory, in the sense that they have been constituted by legislation, whether Imperial, Colonial, Commonwealth, State or Territory.) On the other hand, the Court has all the "powers expressly or by implication conferred by the legislation which govern[s] it" and has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction of the powers so conferred": DJL at [25]. The extent of the Court's "incidental and necessary" powers are shaped by s 5(2) of the Federal Court Act. Section 5(2) provides that the Federal Court is "a superior court of record and is a court of law and equity". In consequence, the Court's "incidental and necessary powers" are "no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction": Jackson v Sterling Industries Limited (1987) 162 CLR 612, 619 per Wilson and Dawson JJ. It follows that the Federal Court can by consent set aside final orders which have been made by consent. In very limited circumstances, the Court can also set aside final orders made otherwise than by consent.

Should the consent order be set aside in the present case? 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, there is additionally evidence which shows that the consent order only came about as a result of genuine misunderstanding on the part of the appellant. The order should be set aside.

Should leave to amend the notice of appeal be granted? 32 The appellant seeks leave to add a further ground which asserts that the primary judge erred in finding that the decision of the Tribunal was not affected by jurisdictional error. There was jurisdictional error in that: (a) In the circumstances of the present case, the Tribunal was obliged to enquire whether the information it proposed to rely upon to reject the appellant's claim in relation to his apprehended mistreatment on returning to Tanzania because of his illegal departure was still current, relevant and accurate given that it was approximately five years old; (b) Further and alternatively, failure to respond to, and deal with, the express submission made on behalf of the appellant that the country information about treatment of persons who departed Tanzania illegally was out of date and should not be relied upon, including that it predated the violence against CUF members in 2001, was a denial of procedural fairness to the appellant; (c) Further or alternatively, the Tribunal did not decide whether it was satisfied that Australia owed the appellant protection obligations on the basis of the facts that existed when the decision was made, but rather on a critical aspect of the appellant's claims determined this question by reference to the facts as they existed in 1998 and 1999. 33 As already mentioned, these arguments were not put to the primary judge. The arguments that were put to his Honour are, implicitly at least, abandoned. 34 We think leave to amend should not be granted because the proposed grounds have no reasonable prospects of success: see Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [24]. 35 Prior to his departure from South Africa as a stowaway the appellant had left Tanzania illegally. The Tribunal in its reasons noted country information to the effect that persons on return to Tanzania known to have departed illegally can be charged with illegal exit and fined 10,000 Tanzanian shillings (in May 1999 about $A22). In default of payment there is a sentence of a year in prison. 36 After the hearing and before delivering its decision the Tribunal provided that country information to the appellant's agent for comment. The agent responded commenting that the information provided to the Tribunal predated the political violence against CUF members in 2000-2001 and was thus "of doubtful relevance, currency or, indeed evidentiary value in relation to the question of penalties to be imposed on the applicant if returned". The agent also referred to previous submissions concerning the possibility that the appellant's past conduct and political profile were such that he would attract particularly brutal treatment and prolonged detention if he were to go to goal. Official penalties included three years imprisonment. Actual sentences could even be longer than those officially imposed and could be indefinite. The appellant did not agree that he was only likely to face a small fine for illegal departure. He feared that he would be imprisoned for a long period and subject to treatment of a persecutory nature. 37 Senior counsel for the appellant said that the Tribunal had ignored these submissions and made no enquiries to see whether their information was still accurate. The Tribunal's decision was premised on a finding that the appellant would avoid gaol. No consideration was given to the situation and the likelihood of persecutory harm that would confront the appellant if he were gaoled. 38 However, as counsel for the Minister pointed out, the appellant never provided the Tribunal with any information in relation to the return of persons departing Tanzania illegally that demonstrated that the material on which the Tribunal relied was out of date. The Tribunal was plainly aware of the developments in 2000 and 2001. It had considered them in detail and found that they were associated with protests over election results and were accompanied by the arrest and detention of some prominent CUF supporters. However, the Tribunal found that the episode was contained. Two CUF leaders charged with murder in connection with the protests were released in October 2001. The unrest was centred on Zanzibar although there were protests on the mainland. The CUF and the governing CCM party reached agreement on reforms after the violence. Charges of treason against eighty CUF members made in 1998 had been dropped and the accused released in October 2000. The Tribunal said: "I considered the chance of (the appellant) coming to serious harm in the course of such involvement to be remote given the information about the limited incidents of serious harm to CUF people in the period since the episode in early 2001 which was in any event short lived and focused on Zanzibar where (the appellant) has not been." 39 Referring to the appellant's claim of feared persecution on the grounds of his profile as a CUF supporter and its effect on any punishment for illegal departure, the Tribunal said that in view of its conclusions about the treatment of CUF supporters and members in Tanzania and the evidence about the appellant's involvement in the past, it was unable to accept that the appellant would be "singled out for particularly harsh punishment for these reasons" (ie his illegal departure). The Tribunal did not consider it at all probable that the appellant's past political association or present political opinion would be a matter which would determine how he would be treated by officials upon re-entry and that he would be subject to nothing more than the application of laws which are generally applicable. 40 This was in a context where the Tribunal had rejected the appellant's claims about political persecution for reasons unrelated to the 1999 country information about punishment for illegal departure. The Tribunal concluded that the appellant had not been truthful about allegations of detention in Dar Es Salaam in 2000. 41 It followed that the Tribunal was entitled to conclude that any punishment that the appellant might suffer for illegal departure would not be affected by any alleged political profile. In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied. Such information might for example have come from a less reliable source than the old information. There was in the circumstances no obligation on the Tribunal to make enquiries: see VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31 at [25].

Orders 42 There will be orders that the order of Marshall J made on 4 November 2004 be set aside, that leave to amend the notice of appeal be refused and that the appeal be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Finkelstein & Lander

Counsel for the Appellant: D S Mortimer SC and R M Niall