Hussain v Minister for Immigration
[2005] FMCA 1611
•25 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUSSAIN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1611 |
| MIGRATION – Practice and procedure – costs – objection to payment of security for costs of taxation – whether discretion to waive payment should be exercised – relevance of impecuniosity to exercise of discretion. |
Federal Court Rules, Order 62
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Hussain & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 978
Potier v Minister for Immigration & Multicultural Affairs [2004] FCA 520
Potier v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 288
| Applicants: | MOHAMMAD MUNIR HUSSAIN BAZLUN NAHAR BILKIS HASIN MD IMTIAZ HUSSAIN MOHAMMAD EBIYAN HUSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG1443 of 2004 |
| Delivered on: | 25 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicants appeared via teleconference link with the aid of an interpreter.
| Advocate for the Respondents: | Mr Anthony Carter |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Migration Review Tribunal be joined as second respondent.
The relief sought in the Notice of Motion filed on 23 September 2005 be refused.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the Notice of Motion, fixed in the sum of $750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1443 of 2004
| MOHAMMAD MUNIR HUSSAIN MOHAMMAD EBIYAN HUSSAIN |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 23 September 2005 in the Sydney Registry of the Federal Magistrates Court of Australia, the applicants object to the respondent’s Bill of Costs pursuant to orders made on 22 December 2004 that the costs be taxed pursuant to Order 62 of the Federal Court Rules to be taxed on an indemnity basis. The applicants object to the Bill of Costs taxation as not appropriate.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.
Background
The applicants sought a review of the Migration Review Tribunal (“the Tribunal”) (MRT File No. N99/04288) made by presiding member, Paul Wakim, on 21 April 2004. The Tribunal affirmed the decision of a delegate of the respondent (“the delegate”) that the applicants were not entitled to the grant of temporary business entry (Class UC) visas. That matter was heard by this Court on 8 December 2004 and the decision was reserved. On 22 December 2004 judgment was handed down and the application dismissed. The applicants were ordered to pay the Minister’s costs and disbursements of and incidental to the application on an indemnity basis (Hussain & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 978).
On 14 July 2005 the solicitor for the respondent, Sparke Helmore, filed the respondent’s Bill of Costs pursuant to the orders made on
22 December 2004 for costs to be taxed pursuant to Order 62 and on an indemnity basis. A Certificate of Taxation was issued by the Court Registry on 5 October 2005.
Applicants’ claim
On 23 September 2005, the applicants filed an application which sought the following interim or procedural orders:
1.Notice of Motion to be heard because I can’t pay the security cost at present. No income or job. I need that fee waived.
2.An extention of time for Notice of Objection to file. (Errors included)
On the same date, the first applicant, Mr Mohammad Munir Hussain, filed an affidavit affirmed on 19 September 2005 which contained the following statements:
1.At present I don’t have a job or income
2.I am facing hardship
3.Friend’s are lending me money to survive with family
4.I had two businesses that I had to close because of employee put me in huge amount of debt
5.Notice of objection is attached “A”
Attachment “A” was a document “Notice of Objection” in the following form:
“I want to object for the bill of the cost taxation. The bill of taxation is not appropriate.”
The first applicant also forwarded a letter to the Court requesting the matter be transferred to Canberra on the basis that he could not afford to travel to Sydney and it would be more convenient for him to have the hearing in Canberra. This request was denied and a telephone hearing was arranged with a Hindi interpreter assisting the first applicant. The first applicant also sent to the Court a detailed letter dated 21 October 2005 which raised a number of objections to line items in the respondent’s Bill of Costs. This letter also contained a complaint that on 8 December 2004 the Court granted the applicants an adjournment and then subsequently dismissed the case by judgment on 22 December 2004 without hearing from the applicants.
Reasons
A Hindi interpreter was present in Court to assist the first applicant with the application. It was noted that in the previous hearing in this Court the first applicant was assisted by a Bengali interpreter. However, at the first applicant’s request, the Court provided the services of Mr Rakesh Sani, a NAATI accredited Hindi interpreter. At the commencement of the hearing, the first applicant was requested to clarify whether his objection was to the composition and quantum of the respondent’s Bill of Costs or, alternatively, whether he sought some deferment of payment because of his current financial circumstances. This issue was mentioned because the first applicant had raised both arguments in written submissions and letters forwarded to the Court. The first applicant responded by saying he was currently unemployed but was due to receive a substantial amount from an award in other Court proceedings in respect of an unrelated issue. The payment schedule for the receipt of this payment was unclear and, despite a number of requests to clarify this position, this was not forthcoming.
A substantial part of the first applicant’s submission related to a challenge to the proceedings on 8 December 2004 and the manner in which the proceedings were handled. The second applicant (wife) was also present at the hearing but declined to make any submission to the Court after the first applicant indicated he was in ill health due to depression, precipitated by the proceedings. The second applicant, according to the first applicant, is legally qualified and in a position to seek registration as a practitioner in this country although she has not done so. When it was explained to the first applicant that there was an appeal mechanism available to him if he was dissatisfied with the conduct or the outcome of the hearing before this Court, the first applicant chose to continue to agitate the issues previously decided in the judgment published on 22 December 2004.
Mr A Carter, Solicitor appearing for the respondent, made brief submissions to the Court. However, as the applicant had failed to pursue his application, the respondent was not required to respond. Mr Carter did bring to the Court’s attention authority in respect of the question of payment of security of costs for taxation and whether the discretion to waive payment should be exercised in cases of impecuniosity. These issues were considered by the Federal Court in the decision of Potier v Minister for Immigration & Multicultural Affairs [2004] FCA 520 and by the Full Court of the Federal Court of Potier v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 288.
Despite numerous requests of the first applicant to address the issues raised in his application concerning costs, the first applicant continued to pursue his attempt to re-agitate issues considered by the Court during the hearing. The relief sought in the applicants’ Notice of Motion is refused. The applicants must pay the respondent’s costs on the Notice of Motion.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 27 October 2005
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