MZXSV v Minister for Immigration and Citizenship [2009] FCA 1025

MZXSV v Minister for Immigration and Citizenship [2009] FCA 1025

The motion was refused because the entered consent orders dismissing the applicant's Federal Court appeal were final orders made in the Court's appellate jurisdiction, so O 35 r 7 did not permit them to be set aside; the Minister did not consent to setting them aside; the applicant showed no vitiating ground such as relevant mistake or misrepresentation affecting the consent order, but only a tactical decision based on migration advice that failed to achieve the desired result; and no appeal lay to a Full Court from a single Judge's exercise of appellate jurisdiction in an appeal from the Federal Magistrates Court.

Jurisdiction
Australia
Judgment Date
11 September 2009
Procedural Posture
Migration Appeal Concerning Review of Refusal to Grant a Protection Visa / Notice of Motion to Set Aside Consent Orders Dismissing the Appeal and for Leave to Appeal Out of Time
Outcome
Motion refused with costs.
Legal Topics
['protection Visa' 'consent Orders' 'setting Aside Final Orders' 'appeal Out of Time' 'federal Court Appellate Jurisdiction']
['migration Law' 'federal Court Practice and Procedure' 'appellate Jurisdiction'] ['protection Visa' 'consent Orders' 'setting Aside Final Orders' 'appeal Out of Time' 'federal Court Appellate Jurisdiction']

Case Brief

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Procedural Posture

Migration Appeal Concerning Review of Refusal to Grant a Protection Visa / Notice of Motion to Set Aside Consent Orders Dismissing the Appeal and for Leave to Appeal Out of Time

Legal Issues

  1. 1 ["Whether consent orders made by Sundberg J on 17 November 2008 dismissing the applicant's appeal could be set aside." "Whether the applicant could obtain leave to appeal out of time from the orders made by a single Judge exercising the Federal Court's appellate jurisdiction." "Whether the applicant's reliance on migration advice about a spousal visa amounted to a mistake or other ground sufficient to set aside the consent orders."]

Ratio Decidendi

The motion was refused because the entered consent orders dismissing the applicant's Federal Court appeal were final orders made in the Court's appellate jurisdiction, so O 35 r 7 did not permit them to be set aside; the Minister did not consent to setting them aside; the applicant showed no vitiating ground such as relevant mistake or misrepresentation affecting the consent order, but only a tactical decision based on migration advice that failed to achieve the desired result; and no appeal lay to a Full Court from a single Judge's exercise of appellate jurisdiction in an appeal from the Federal Magistrates Court.

Court Disposition

Motion refused with costs.

Orders

  • ['The motion on notice dated 3 September 2009 be refused.' "The applicant pay the respondent's costs, to be fixed in the amount of $1,200."]