DSH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 2283

Federal Circuit Court of Australia

DSH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2283   

File number(s):

SYG 2509 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2020

Catchwords:

 MIGRATION –  where applicant discontinues proceedings – orders at hearing to permit same – costs

Legislation:

Migration Act 1958 (Cth) s 5J (3) (a)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Division:

General Federal Law

Number of paragraphs:

5

Date of last submission/s:

18 August 2020

Date of hearing:

18 August 2020

Place:

Sydney

Counsel for the Applicant

In Person

Counsel for the Respondent

Mr T Lonsdale

Solicitor for the Respondent

Clayton Utz

ORDERS

SYG 2509 of 2019
BETWEEN:	DSH19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	JUDGE STREET
DATE OF ORDER:	18 AUGUST 2020

THE COURT ORDERS THAT:

1.The proceedings are discontinued and the Court dispenses with the need for the filing of a notice of discontinuance.

2.The applicant pay the first respondent’s costs fixed in the amount of $3, 737.00

REASONS FOR JUDGMENT

JUDGE STREET:

1. These are proceedings that were commenced on 30 September 2019 seeking a constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 2 September 2019.  On 30 August 2020, the applicant lodged an originating application, which raised the following grounds which I will outline below:

   Ground 1

   IAA made jurisdictional error by misapplying the well founded fear test.

   Particulars

   Authority failed to consider Applicant will face the same treatment as in the past, namely mistreatment and extortion, as past is a guide as to what wold happen in future.

   Ground 2

   IAA made jurisdictional error by misapplying the complementary protection obligation.

   Particulars

   Authority failed to consider any questioning or interrogation may be attendant with mistreatment.

   Ground 3

   Authority failed to consider whether or not Applicant should modify his behaviour to allay well founded fear of being persecuted pursuant to s5J (3) (a) of the Migration Act 1958 (Cth).

2. This Court explained the nature of the proceedings to the applicant and had identified the relevant evidence. The applicant indicated a desire to discontinue the proceedings. The Authority appears to have correctly identified the applicant’s claims and no argument was advanced in support of the grounds as the applicant pursued his wish to discontinue the proceedings. The Authority on the face of its reasons correctly identified the relevant law in relation to the statutory application of the Refugee Convention and correctly identified the relevant law in relation to complementary protection. The Authority did not make findings based on a modification of behaviour.

3. The grounds identified in the originating application fail to identify properly any arguable case. The first respondent accepted that the grounds failed to raise an arguable case. The first respondent, as a model litigant, could have moved for the proceedings to be dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicant announced that he has decided to go back to his home country and has asked the Court for permission to discontinue the proceedings. The Court is satisfied that the applicant wishes to discontinue the proceedings. Accordingly the Court will make orders to facilitate that discontinuance. The only issue was costs.

4. The first respondent sought costs in the full amount for a final hearing and in the alternative the scale amount relating to a discontinuance.  The Court is satisfied that this is a matter that could have been pursued by a show cause application and accordingly, the lower scale are the appropriate costs in the amount of $3737.

5. For these reasons, the Court orders the costs to be paid by the applicant to the first respondent given the discontinuance ordered by the Court, be fixed in the sum of $3737.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       18 August 2020