Singh v Minister for Immigration
[2012] FMCA 623
•25 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 623 |
| MIGRATION – Review of decision of Migration Review Tribunal – costs on consent dismissal of judicial review application – observations on the write off and waiver of debts due to the Commonwealth. |
| Federal Magistrates Court Rules 2001 (Cth) Financial Management and Accountability Act 1997 (Cth), ss.34, 47 |
| Applicant: | ARVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | DNG 2 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 25 June 2012 |
| Delivered at: | Darwin |
| Delivered on: | 25 June 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G Phelps Ward Keller Lawyers |
| Solicitors for the Respondents: | Ms S Newman Clayton Utz |
ORDERS
By consent, the application filed on 10 January 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000.
Order 2 is to be suspended for a period of 21 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 2 of 2012
| ARVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application filed on 10 January 2012 seeking review of a decision of the Migration Review Tribunal (the Tribunal). The applicant, Mr Singh, was until today self-represented. Mr Phelps appeared on behalf of Mr Singh today and advised the Court that he had instructions to concede dismissal of the application, save for the issue of costs.
The concession was properly made because Mr Singh would have faced substantial difficulties in circumstances where he had not, in his show cause application, nominated any jurisdictional error by the Tribunal.
On the issue of costs, there is no real doubt that a costs order in some form should be made. The Minister has been put to trouble and expense in dealing with a judicial review application which has come before the Court today on a final hearing. A court book has been prepared as well as written submissions.
Mr Phelps was concerned that he had insufficient instructions in order to put all submissions that might be put before the Court on the issue of costs. He referred to Mr Singh’s employment circumstances in a remote area of the Northern Territory on an Aboriginal community and the possibility that Mr Singh may be successful in seeking an alternative class of visa to that which was the subject of the decision by the Tribunal.
In my view, those are not reasons for the Court to refrain from making a costs order. The issue to resolve is not whether it would be a hardship to Mr Singh or in some way unfair to him to make a costs order but whether costs have been reasonably and properly incurred on behalf of the Minister.
The Federal Magistrates Court Rules 2001 (Cth) (the Rules) prescribe a scale of costs in migration proceedings. Item 1(c), of Part 3 of Schedule 1 to the Rules prescribe an amount of $6,471 for an unsuccessful applicant to pay at a final hearing, which this is. The Minister is willing to concede that, in circumstances where Mr Singh will consent to a dismissal of the application and has been self represented until today, it would be reasonable for the Court to apply the reduced scale amount of $4,530 in item 2(d) of Part 3 of Schedule 1. The Minister’s actual costs, on a solicitor and own client basis, are in the vicinity of $7,500.
Having regard to the work which has been undertaken on behalf of the Minister, I have no difficulty in accepting that costs of at least $3,500 have been reasonably and properly incurred on behalf of the Minister to this point. It is appropriate to recognise the commonsense attitude now taken to the proceedings by Mr Singh following the briefing of Mr Phelps and, no doubt, the provision of advice by him. Mr Singh has come to see that these proceedings serve no real legal purpose. In recognition of that circumstance, I have concluded that it would be appropriate to fix costs in the amount of $4,000. The fixing of the costs removes the need for any further argument concerning the appropriate amount of costs and will establish a debt.
There is a procedure available under Commonwealth law for the consideration of write-off or waiver of such a debt once established[1]. Write-off is an accounting entry and does not extinguish the debt. Write off may be appropriate, in circumstances where a Commonwealth officer concludes that a debt is, for practical purposes, irrecoverable. I do not know whether Mr Singh’s circumstances would fit that description. He is, I understand, in employment and is presumably deriving some form of income.
[1] see. s.47 of the Financial Management and Accountability Act 1997 (Cth)
Commonwealth law also provides for waiver of debts on a discretionary basis[2]. Waiver has the substantive effect of extinguishing a debt and is an exercise of discretion by an appropriately empowered Commonwealth officer. Once a debt is established, it would be open to Mr Singh, with such assistance as he feels he needs, to make representations pointing to facts or circumstances that he considers might support such a waiver.
[2] see s.34 of the Financial Management and Accountability Act 1997 (Cth)
The matters which Mr Phelps felt the need to seek to put to the Court, either today or at some future time would, in my view, be more properly directed to the Commonwealth in relation to an application for waiver of a debt. I do not rule out the possibility that there may be an opportunity for fruitful discussions between the legal representatives of the Minister and Mr Singh following the conclusion of this hearing on the issue of costs. If those discussions do not occur or are not fruitful, there would still be the opportunity for an application for waiver or write-off of the debt.
In all the circumstances, I have come to the view that the appropriate orders for the Court to make are first to order, by consent, that the application filed on 10 January 2012 is dismissed. Secondly, I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,000. I further order that the costs order in order 2 be suspended for a period of 21 days.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 17 July 2012
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