NAZB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 267

FEDERAL COURT OF AUSTRALIA

NAZB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 267

NAZB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1999 of 2003

MADGWICK J
2 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1999 of 2003

BETWEEN:	NAZB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	2 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        By consent leave is granted to the applicant to discontinue the proceedings.

2.        The parties are to pay their own costs.

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	N1999 of 2003

BETWEEN:	NAZB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. In this case the applicant has sought judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’).  During the currency of the proceedings, it appears that she and her husband have been able to arrange entry to France under a laissez passer arrangement, which apparently gives them greater security of residence in France than here.

2. The applicant seeks leave to discontinue the proceedings, which the Minister does not oppose, whether or not ultimately the Court orders that her costs be paid.  However, the Minister seeks costs.

3. The matter has some history.  This is the second time the applicant has come to the Court complaining of decisions of the Tribunal.  The first application was remitted by consent for further hearing and determination by the Tribunal (NAFE v Minister for Immigration & Multicultural & Indigenous Affairs – N1296 of 2002).

4. The applicant was again aggrieved at the second Tribunal determination and again asserts jurisdictional error on the part of the Tribunal.  It is not necessary to dilate upon the nature of her claims, but it is clear that she brought the application in good faith.  It was not simply, as regrettably so many such applications to this Court are, an exercise in buying time in Australia manifestly without warrant.

5. In the earlier proceedings, Mr Prince of counsel appeared pro bono for the applicant, and has taken the view that, so appearing, he should not have sought to benefit by asking that the applicant’s costs, which Branson J ordered the Minister to pay, should include his own fees.  That is a high-minded and, perhaps, excessively self-denying position to have taken.  In any case, the Minister had the advantage of Mr Prince’s charity, and the only costs that the Minister had to pay in connection with the earlier proceedings were, in substance, the costs of an interpreter.

6. The applicant was in a position of human uncertainty.  Once she and her husband began negotiating with the French authorities, it was suggested that they could have sought to put the present proceedings ‘on hold’ until the attitude of the French government was known.  That is true.  However, the general interest of the Minister in trying to progress applications for judicial review in a timely fashion, one can infer, would have impelled the Minister to oppose such a course and, in such event, it seems to me that the Minister would likely have been successful.  Thus, having launched the proceedings, the applicant had, as a matter of self-protection, no practical choice but to continue them.

7. The Minister’s object in defending the proceedings in this Court was to seek to uphold the delegate’s and the Tribunal’s decisions that the applicant had no right to stay in Australia.  Through other arrangements she has now gone and the Minister has achieved, with the applicant’s co-operation, the end that the Minister had in mind.

8. Costs are discretionary.  As Mr Prince points out, the applicant could have continued these proceedings notwithstanding her sanctuary in France for the sake of trying to avoid a costs order.  Instead, she has straightforwardly discontinued the matter.

9. The case is a difficult one.  It is unlikely to be repeated or to have any precedential value.  In the circumstances, I exercise my discretion against making a costs order.  Accordingly, the parties will pay their own costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            17 March 2004

Counsel for the Applicant:	Mr Prince
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 March 2004
Date of Judgment:	2 March 2004