Fakhr, Edmond v Minister for Immigration and Multicultural Affairs

[1997] FCA 1262

FEDERAL COURT OF AUSTRALIA

MIGRATION - no question of law.

EDMOND FAKHR v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 29 OF 1997

LEHANE J
SYDNEY
20 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 29  of   1996

BETWEEN:	EDMOND FAKHR APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		LEHANE J
DATE OF ORDER:		20 NOVEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The applicant pay the respondent’s costs of the proceeding.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 29 of 1996

BETWEEN:	EDMOND FAKHR APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	LEHANE J
DATE:	20 NOVEMBER 1997
PLACE:	SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT

This was an application, under s 476(1) of the Migration Act 1958 for review of a decision of the Refugee Review Tribunal. On 31 October 1997 I ordered that the application be dismissed, for reasons which I then published. I expressed the view that there was no obvious reason why costs should not follow the event but, because there had been no argument on the question and the Minister had not explicitly sought an order for costs, I invited the parties to make submissions on costs should they wish to do so. I directed that those submissions be in writing.

The solicitors for the applicant have filed written submissions in which they ask that no order be made as to costs on the ground that the applicant has financial difficulties to which they refer.  There is, in fact, no evidence before the Court as to those difficulties: they are simply put as matters on which the applicant’s solicitors have instructions.

When I published my reasons, the Minister made it clear that he sought an order for costs.  The Court has, of course, a broad discretion as to costs; there are no strict rules.  Nevertheless, ordinarily a successful party is, in the absence of particular circumstances suggesting a departure from the ordinary course, entitled to an order that the unsuccessful party pay its costs.  That practice is ordinarily applied in the case of judicial review proceedings under the Migration Act, and in cases where the Minister is the successful party.  Financial difficulties of the unsuccessful party, where they are established, are not ordinarily seen as a reason to decline an order for payment of costs.

If the circumstances referred to in the applicant’s solicitors’ submissions were established by evidence, I do not think they would justify a departure from the ordinary practice.  Accordingly, the order of the Court is that the applicant pay the respondent’s costs of the proceeding.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:             20 November 1997

Solicitor for the Applicant:	Westside Lawyers
Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 October 1997
Date of Judgment:	20 November 1997