BZZ15 v Minister for Immigration

[2016] FCCA 1878

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZZ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1878

Catchwords:
MIGRATION – Application for judicial review – application incompetent.

Legislation:

Migration Act 1958 (Cth), s.486D

Applicant: BZZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2230 of 2015

Judgment of: Judge Riethmuller

Hearing date: 17 June 2016

Date of Last Submission: 17 June 2016

Delivered at: Melbourne

Delivered on: 17 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 1 October 2015 be dismissed.

2. In regards to matter number MLG743/2014 any application to withdraw the notice of discontinuance or reinstate or set aside the order made on 15 July 2015 be filed and served within 28 days of today’s date.

3. The applicant pay the respondent’s costs fixed in the amount of $3606.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2230 of 2015

BZZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore & Revised)

1. In this matter, the application is incompetent as a result of the effect of section 486D of the Migration Act 1958, which provides that an application cannot be brought if there has been previous proceedings unless the previous proceedings are disclosed. The previous proceedings are not disclosed in the application. The application is therefore incompetent. The representative for the applicant today agreed the application is incompetent and did not oppose the Minister’s submission for the application to be dismissed.

2. The cause of that, I am told, is as a result of another lawyer who is not currently acting having assisted the applicant, although having the applicant sign the form himself. If a lawyer has given inappropriate advice about commencing proceedings that has caused defective proceedings to issue, then that lawyer may well have an obligation to their client to indemnify them for the costs caused by any negligence or inappropriate conduct. 

3. That, however, is not a basis for the court not ordering that the applicant pay the respondent’s costs. In this case, there is no suggestion that the lawyers for the respondents have acted in any way inappropriately and, indeed, it appears from the court file that they have undertaken the matter in the usual way that one would expect for a case of this type, having the matter listed early for a show cause hearing so that unnecessary costs were not incurred of having it go to a final hearing and filing their material and so forth on time.

4. In these circumstances, the costs should follow the event, and the applicant will need to pursue his remedies against the lawyer that he says was the cause of the issues separately from the proceedings that are being determined in this court.  I therefore dismiss the application and order costs in the sum of $3,606.00.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 22 July 2016