Morasso Mena v Minister for Immigration
[2005] FMCA 337
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORASSO MENA v MINISTER FOR IMMIGRATION | [2005] FMCA 337 |
| MIGRATION – Application for summary dismissal – application for review of a decision of the Migration Review Tribunal – elderly lady from Chile – adverse opinion from the medical officer relating to her physical condition. PRACTICE & PROCEDURE – Costs – circumstances justifying order – application discontinued on day of hearing – quantum of costs. |
| Migration Act 1958 (Cth), s.417 Federal Magistrates Court Rules 2001 R. 13.10(b) |
| Applicant: | ANA DEL CARMEN MORASSO MENA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3443 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 March 2005 |
| Date of Last Submission: | 9 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ginges |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondent: | Ms Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
By consent the Application is dismissed.
I vacate the hearing date of 10.15am 13 May 2005.
The Applicant is to pay the Respondent’s costs of this Application fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3443 of 2004
| ANA DEL CARMEN MORASSO MENA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The proceedings before the Court today involve an application for a summary dismissal of an application for review of a decision of the Migration Review Tribunal.
The original application sought writs of certiorari and mandamus, quashing the decision of the Migration Review Tribunal and compelling the Tribunal to re-hear and redetermine the matter according to law.
The application arises from the application by the applicant, who is an elderly lady from Chile, who applied for an aged parent residence class BP visa on 27 March 2000. Her application was refused by the delegate Minister, and the Migration Review Tribunal affirmed the delegate's decision.
The problem that the applicant has had in her case relates to an adverse opinion from the medical officer relating to her physical condition, and the possibility of surgery in the future at a cost to the Australian taxpayer.
A review was sought, and the medical evidence differs as to the likelihood in the future of the applicant requiring surgery. The difficulty for the applicant is that the Migration Review Tribunal found that under the legislation it could not review an opinion in relation to public interest criterion 4005. The review, as has been submitted, was effectively restricted to providing an opportunity for a further opinion to be obtained from a review medical officer, and that has been done.
What happened then is that the application was filed back on
24 November 2004. The proceedings were listed for final hearing on a substantive basis before me on the morning of 13 May 2005. There was an appearance before Registrar McIllhatton on the first Court date back on 8 December 2004, and the learned Registrar, as I said, listed the matter for hearing and made appropriate directions.
Those directions included the applicant filing and serving any affidavit containing additional evidence, and filing and serving any amended application by 15 March 2005. That date has not been reached. It is, as we speak, 9 March 2005.
What happened, however, was that the respondent's solicitors prepared the appropriate Court Book. It was filed on 9 February 2005, well within time. Copies were served on the applicant.
The respondent then went further, and, on 24 February 2005, brought an application for summary dismissal on the primary ground that no reasonable basis for the action was disclosed. The application goes on to say:
Further, or in the alternative, the application to be dismissed pursuant to rule 13.10(b) of the rules on the ground that the proceedings are vexatious.
A submission was put on alleging proceedings were not only hopeless, but frivolous and vexatious.
The interlocutory application has come before the Court today. The applicant, through her counsel, has indicated that she will consent to a dismissal of the application at this stage. I intend to dismiss the application, noting that it is by consent. I intend to vacate the hearing date of 10.15 am on 13 May 2005.
I have heard argument from counsel for the applicant and solicitor for the respondent. The respondent seeks costs. Costs that are sought are in the nature of $2500. The applicant is of the view that the figure of $1000 is a more appropriate figure.
The submissions dealt with the nature of the applicant's case, not as to whether it would ultimately be successful, because obviously, if the applicant and her legal advisers were of the view that the application would ultimately be successful, they would have sought to proceed to a hearing.
The application, however, to my mind, was correctly assessed as being one which the applicant was, to say the very least, was unlikely to win. My reading of the documentation indicated that the likelihood of the Court finding that the application disclosed no reasonable cause of action is extremely high. I have already indicated my view that notwithstanding that finding, I did not consider that the application could be regarded as vexatious or even perhaps frivolous as appeared in one of the submissions.
Nevertheless, an application does not have to be vexatious or frivolous, nor does it have to be an abuse of process before it is in jeopardy of being summarily dismissed. If it discloses no reasonable cause of action, no matter how well meant the application is, then it is doomed to fail.
In the circumstances, it was always on the cards that the Court was going to make an order for costs. Costs follow the event. Counsel for the applicant submitted that the respondent's legal advisers have jumped the gun, effectively, by bringing this application before the limitation, or before the expiry of the period provided in the directions, namely the 15th of March. And, it would always have been open to the applicant to file an amended application, and an amended further affidavit.
Although in the circumstances of this case, it is difficult to see what other relief could have been sought, the nature of the inability of the Migration Review Tribunal to review the opinion in relation to public interest criterion 4005, was, to my mind, an absolute question. It either was, or it was not. There were no shades of grey nor was there any space for a discretionary judgment by the Court.
At the same time, the respondent perhaps took a chance on bringing the application this early that the interlocutory application may not succeed, if indeed the applicant were to draw a rabbit out of a hat in the form of an amended application, which disclosed a reasonable application. That, however I think is a risk that one has to take in litigation.
Mr Ginges also submitted that the respondent has taken perhaps a hard line in serving the Court Book and then going straight to bringing an application for summary dismissal.
If the respondent had written a letter warning that summary dismissal would be sought, unless the application were withdrawn, it is highly likely that he would have been briefed to advise on the matter at an early stage, and it is highly likely that he would have given the advice to his client that he clearly has on the matter before me today.
Again, however, that is speculative. There is no minimum time limit on bringing an application for summary dismissal. There was no requirement of a warning or a letter of demand.
The application was filed on 24 February, although I understand it was not served until approximately 2 March. The counsel for the applicant was not in a position to deal with it on 2 March, as he was in another state, and was not back until a day or so later. Nevertheless, a day or so later would have taken the parties up to the end of last week.
It appears to me that it would have been open to the applicant's legal advisers to inform the legal advisers for the respondent on Monday or yesterday that their instructions were not to proceed.
Now, this failure to do so does not, to my mind, lie with counsel for the applicant, who was not in a position to form that view until yesterday and was not able to inform the legal advisers for the respondent until today.
Today was the hearing day. The application had been prepared, the parties were ready to come to Court and come to Court they did, or, their legal advisers did.
To my mind this is a matter for a costs order. Any application that is withdrawn on the day is - or, is consented to being dismissed on the day - is always open to the threat of an order being made covering the costs of the day. It was always open for an order to be made covering the interlocutory application.
Quite clearly, the applicant, who has now withdrawn her application, will return to her native Chile. She is an elderly lady, and unless she applies to the Minister under, I think, s.417 of the Act seeking some ministerial intervention during the next 28 days, then it will be necessary for her to leave Australia.
I am not making any suggestion of an application for ministerial intervention. I am just indicating that that is a process that some people use, and indeed from this morning's newspapers I understand the Minister has decided to exercise her discretion in favour of a lady from China who has managed to reach the age of 104.
I could give no indication at all as to whether, if such an application were made, the Minister would look upon it favourably or unfavourably. The discretion of the Minister is absolute, and no reasons have to be given.
But on the assumption that the applicant returns to Chile, it has been put that a saving of legal costs would enable her funds to be used more appropriately for her support back in her native country.
Mr Ginges referred to the possibility of a costs order of $4000 being made, if the application were to run its course and were heard on a defended basis in May, and the application were to be unsuccessful.
In my view, $4000 is below the going rate that the Court awards.
In my view the range, while in Sydney whilst it is considerably lower than in Melbourne, for reasons that are not clear to me, the range was somewhere between $4250 to $4750, maybe getting up close to the $5000 mark if there is something a little bit unusual. If there has been an adjournment or some further proceedings then a costs order in excess of $5000 is not at all uncommon.
But the situation is that a party who faces a costs order in these circumstances, and who leaves the country, is not pursued by the Commonwealth in his or her native country for the costs. The costs remain as a barrier to a party re-entering from outside the migration zone, but there is no - normally, if a party leaves within 28 days then the costs are no barrier to the party leaving, they are only a barrier to the party returning in the future.
But that is perhaps a general observation. To my mind, it is an appropriate matter for a costs order. Costs are set out in the Federal Magistrate Court's rules, and there is a table of costs in schedule 1 of the rules, and it is customary for my colleagues and I to follow that schedule and to make a lump sum costs order.
Ms Burnett, solicitor, suggested that the solicitor/client costs would reach $3700. This is not a matter where I would be awarding costs on that basis, and indeed, Ms Burnett was seeking the sum of $2500.
To my mind, the appropriate figure for costs is set by first of all stage 1A in schedule 1, as it includes an interim application, and would include a hearing fee on the day which would be a minimum of $190, which would be increased by 50 per cent, because I would apply the advocacy loading for the day, because the solicitor concerned was not required just to instruct but to engage advocacy.
It would in my quick calculations show that even by applying those rules, that a figure of $2660 would be quite easily reached.
Bearing that in mind, the figure of $2500 suggested by Ms Burnett appears to me to be well within the range contemplated by the rules. It is not an unreasonable figure at all. Quite the reverse.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 March 2005
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