Hussain v Minister for Immigration and Multicultural & Indigenous Affairs

[2005] FCA 1556

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1556

MOHAMMAD MUNIR HUSSAIN & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 107 OF 2005

EMMETT J

11 OCTOBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 107 OF 2005

BETWEEN:

MOHAMMAD MUNIR HUSSAIN
FIRST APPLICANT

BAZLUN NAHAR BILKIS
SECOND APPLICANT

HASIN IMTAZ HUSSAIN
THIRD APPLICANT

MOHAMMAD EBIYAN HUSSAIN
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

11 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion be dismissed.

2.        The first applicant pay the respondent’s cost of the motion in the sum of $300.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 107 OF 2005

BETWEEN:

MOHAMMAD MUNIR HUSSAIN
FIRST APPLICANT

BAZLUN NAHAR BILKIS
SECOND APPLICANT

HASIN IMTAZ HUSSAIN
THIRD APPLICANT

MOHAMMAD EBIYAN HUSSAIN
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:	11 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is a notice of motion filed on 12 July 2005.  The motion seeks the following order:

   ‘I want the fee of $1250 security for cost, waived as mentioned under Order 62 rule 46.  I don't have any income at present.’

   After some difficulty, I now understand that that motion seeks a waiver of the requirements of O 62 r 46(3)(d), relating to review of assessment of costs. 

2. The applicant on the motion is a national of Bangladesh.  He applied with his wife and two sons for temporary business entry (class UC) visas on 14 August 1998.  On 25 February 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant the visas.  The first applicant lodged an application for internal review by a review officer of the Department of Immigration on 10 March 1999.  By the operation of the Migration Legislation Amendment Act (No 1) 1998 (Cth), that application became an application for review to the Migration Review Tribunal (‘the Tribunal’).

3. On 21 April 2004, the Tribunal affirmed the decision, finding that the visa applicants were not entitled to the grant of temporary business entry (class UC) visas. The basis for that conclusion was that the Tribunal found that the visa applicants’ proposed employer had not been approved as a business sponsor, as required by relevant subclauses of clause 457.223 of the Regulations made under the Migration Act 1958 (Cth).

4. The applicants sought Constitutional writ relief in respect of that decision by a proceeding commenced in the Federal Magistrates Court of Australia.  On 22 December 2004, the Federal Magistrates Court dismissed the application and ordered the applicant to pay the Minister’s costs of, and incidental to, the application on an indemnity basis.  The reason for that order was that the application had no substance whatsoever.

5. On 27 January 2005, the applicants filed a notice of appeal in this Court.  The filing fees were waived.  The notice of appeal came before me for directions on 4 March 2005.  Subject to the direction of the Chief Justice, I directed that the matter be listed for hearing on 23 March 2005.  I also directed that the appeal books would be constituted by the application filed in the Federal Magistrates Court on 17 May 2004, the court book filed on 6 September 2004 and the judgment and orders of the Federal Magistrates Court of 22 December 2004.  I gave directions for the filing of written submissions.

6. However, on 10 March 2005, the applicants filed a notice of discontinuance.  Under the rules, they became liable for the Minister’s costs of the proceeding.  On 2 May 2005, the Minister filed her bill of costs, pursuant to the notice of discontinuance.  The bill of costs amounted to a total of $1596.  On 2 June 2005, a Deputy District Registrar wrote to the applicants.  After referring to the bill of costs, the Deputy District Registrar notified the applicants and the Minister’s solicitors that the estimate made of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue, was $1550. 

7. The communication of 2 June 2005 was given pursuant to O 62 r 46(1), which provides that the Registrar has a discretion to apply the provisions of rule 46 and may, for that purpose, decline to give an appointment to tax a bill on its being filed.  Under r 46(2), if the Registrar decides to apply rule 46, the bill is to be assessed in accordance with rule 46(3).

8. Rule 46(3)(a) provides that a taxing officer may, in the absence of the parties and without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.  Rule 46(3)(b) provides that the Registrar will notify each party interested in the bill, in writing, of the estimate made under r 46(3)(a).

9. Rules 46(3)(c) and (ca) then provides that, unless within 14 days of receipt of notice under r 46(3)(b), a party interested files and serves a notice of objection to the estimate, there is to be no taxation and the amount of the estimate is deemed to be the amount for which a certificate of taxation may be issued.  However, O 62 r 46(3)(d) provides that the registrar must not accept a notice of objection unless the party filing it pays an amount of $1250 as security for the costs of any taxation of the bill.

10. It appears that the applicants attempted to file a notice of objection to the minister’s bill, but were informed by the registry of the requirements of O 62 r 46(3)(d).  It is in that context that the applicants filed the notice of motion of 12 July 2005, seeking in effect, waiver of the requirements of O 62 r 46(3)(d).

11. The motion is supported by an affidavit by the first applicant asserting the following:

    ‘(1)At present I don't have any income.

    (2)I am facing serious hardship.

    (3)Friends 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.’

12. The notice of objection simply says that ‘the bill of taxation is not appropriate’.  No attempt is made to impugn the bill of costs in any specific way. 

13. When the motion came on for hearing today, the first applicant reiterated his financial plight and, from the bar table, made assertions as to various matters that he claimed had resulted in that plight.  However, he was unable to articulate any objection to the bill of costs or to indicate any way in which the bill was defective, or was likely to be allowed at a lesser sum than the estimate made by the Registrar.

14. While one may have sympathy for the applicants in their present position, I am not persuaded that any basis has been advanced which would justify waiver of the requirements of O62 r 46(3)(d).  The reasons of the Federal Magistrates Court indicate that the application to that Court was without substance.  There were no substantive grounds in the notice of appeal indicating that the appeal ever had any prospect of success.  The grounds were simply an assertion that the Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and asserted that details would be provided later.  No details were ever provided.  The appeal should never have been filed in the first place.

15. In the circumstances, I am not persuaded there is any basis at all for waiving the requirements of the Rules.  The notice of motion should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             22 November 2005

The First Applicant appeared on behalf of all the Applicants.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 October 2005
Date of Judgment:	11 October 2005