FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZKH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2287 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal – notice of discontinuance filed – applicant to pay costs. |
| Legislation: Federal Court Rules 2011, rr.14, 17, 19, 32 |
| Applicant: | MZZKH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 600 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 6 December 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | No Appearance |
| Counsel for the First Respondent: | Ms Briffa |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Applicant have leave to file a Notice of Discontinuance and the matter be discontinued.
The Applicant pay the First Respondent’s costs fixed in the amount of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 600 of 2013
| MZZKH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This judgment arises out of an application for judicial review of a decision of the Refugee Review Tribunal.
On 3 September 2013, many weeks before the date for hearing of the matter, the applicant filed a Notice of Discontinuance, discontinuing the whole of the Application. The Court Rules dealing with discontinuance are contained within r.13.01 of the Federal Circuit Court Rules 2001. The Rules provide that a party may discontinue an application by filing a notice in the approved format at least 14 days before the date fixed for final hearing, or alternatively with the leave of the Court: see r.13.01(2). Limited exceptions to the need to obtain leave of the Court relate to property proceedings under the Family Law Act1975, where one of the parties dies before the proceeding is decided, and proceedings in relation to a creditor’s petition: see r.13.01(3)).
The party filing a Notice of Discontinuance is also required to serve it on each other party as soon as practicable, in accordance with r.13.01(4). Obviously, the latter rule is designed to ensure that other parties do not continue to incur costs in relation to the matters (as they may be unaware that the proceedings have been discontinued).
Pursuant to r.13.02, where a party discontinues proceedings, the other party, or another party to the application may, within 28 days after service of the notice of discontinuance, bring an Application for costs.
This is slightly different to the Rules of the Federal Court of Australia, where r.26.12(7) provides that a party who files a Notice of Discontinuance is liable to pay the costs of each other party to the proceedings in relation to the claim or part of the claim that is discontinued. Whilst there is no specific explanation for the difference, between the Rules of the two Courts it seems…
Keep reading for free
Create a free CaseChat account to read MZZKH v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] FCCA 2287
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of MZZKH's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant information and evidence presented by the applicant, and whether the delegate's adverse credibility findings were reasonably open on the evidence.
Judge Riethmuller found that the delegate had made an error of law by failing to adequately consider certain documentary evidence that was crucial to MZZKH's claims. The Court held that a failure to give proper weight to relevant evidence, particularly when it directly contradicted adverse credibility findings, could constitute an error of law. The principle applied was that decision-makers must engage with and assess all material evidence before them, and adverse credibility findings must be supported by a logical and rational analysis of the evidence.
The Court set aside the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.