Sochoroza v Minister for Immigration
[2008] FMCA 1544
•9 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOCHOROZA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1544 |
| ADMINISTRATIVE LAW – Application seeking financial remedy under s.476 of the Migration Act 1958 – claim for damages as a result of delays in processing permanent residency visa. |
| Migration Act 1958, s.476 Human Rights and Equal Opportunity Commission Act1986, s.46PH(2) Federal Magistrates Act1999, s.18 |
| Applicant: | TEREZIE SOCHOROZA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 514 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 9 September 2008 |
| Date of Last Submission: | 9 September 2008 |
| Delivered at: | Cairns |
| Delivered on: | 9 September 2008 |
REPRESENTATION
| The Applicant appeared in person by her friend Mr Moder |
| Counsel for the First Respondent: | Mr Pack |
| Solicitors for the First Respondent: | Clayton Utz |
| Solicitor for the Second Respondent: | Mr McIntyre |
| Counsel for the Second Respondent: | DLA Phillips Fox |
ORDERS
That the application filed 1 August, 2008 be dismissed.
That the applicant pay the first respondent's costs fixed in sum of $1,000.00.
That the applicant pay the second respondent's costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
BRG 514 of 2008
| TEREZIE SOCHOROZA |
Applicant
And
| MINISTER OF IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
This application was filed on 1 August 2008. The application is headed "Application under Migration Act Rule 44.05". In the application the applicant applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of certain decisions that are specified in the application.
The applicant appeared this morning represented by her brother who was, according to the documents before me, responsible for the completion of the relevant application. As he explained this morning, the applicant does not challenge any particular decision of the Migration Review Tribunal or the Department of Immigration & Citizenship but rather, she challenges a series of decisions and actions by that Department and the Tribunal. In submissions he described the complaint as mal-administration of his sister’s claims over a seven year period. He says that the mal-administration has caused grievous harm to his sister and to himself.
The grounds of the application set out in the document filed on
1 August 2008do not really identify the basis upon which the application is brought. The grounds assert that the applicant has been deprived of certain things, most particularly, money.
The applicant seeks orders that she be compensated by the respondents jointly for the money that it is said she lost and for damages for injury to her health and her "existential wellbeing". This morning the applicant's brother indicated that the relief that is sought by her in these proceedings is not sought under the Migration Act. Indeed, as the submissions and the material filed by the second respondent make clear, there is no basis under the Migration Act for relief.
It was said for the applicant, however, that relief is sought under provisions of the Human Rights and Equal Opportunity Commission Act1986 and this Court being one of a number of courts which exercises jurisdiction under that Act, it is therefore properly seized of these proceedings.
The difficulty for the applicant, however, is that the Court's jurisdiction under the HREOC Act is only engaged once a notice of termination is issued by the President of the Commission pursuant to s.46PH(2) of the HREOC Act.
That requires, first of all, a complaint to be made to the Commission. The Commission must then deal with the complaint in accordance with the processes set up under the HREOC Act and ultimately for the complaint to be terminated, again in accordance with the processes set up under the Act. None of that has occurred here. There is no notice of termination under s.46PH of the Act. This Court’s jurisdiction under that Act is not engaged.
The Court, of course, pursuant to s.18 of the Federal Magistrates Act1999 may exercise jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. In short, the associated jurisdiction is a jurisdiction in non-federal claims that accrues to the Court when it is otherwise exercising jurisdiction in a federal claim and which is based upon the same or similar circumstances. The Court also has an accrued jurisdiction aside from the associated jurisdiction but to engage either of those jurisdictions, the associated or accrued jurisdictions, there must be before the Court properly constituted federal claim in respect of which the Court has jurisdiction. There are no such proceedings before the Court in this case and so the associated or accrued jurisdictions do not arise for consideration.
The application before me is fatally flawed. There are two options open: the first is to adjourn the proceedings and permit the applicant to file an amended application which properly engages the jurisdiction of the Court; the second is to dismiss the proceedings now.
As to the first option, it is sometimes appropriate to permit amendment to rescue proceedings which otherwise might be doomed to failure. If there is reason to think that there is some hope for the proceedings, it might be that an amendment either to the originating process or to the documents that support it can bring the case, not otherwise within the jurisdiction of the Court, within it. But this does not seem to be one of those cases.
I am not satisfied that amendment to the originating process will save these proceedings primarily because the source of the Court's jurisdiction has been identified by the applicant as the HREOC Act and until there is a notice of termination of a properly constituted complaint under that Act there can be no proceedings in this Court. It seems to me therefore that the only option which is open in this case is to dismiss the proceedings. Amendment could not save the proceedings.
Were I to keep the proceedings alive for what seems to me to be the inevitable end of them, the respondents would be put to additional and unnecessary cost. Any costs order may go unsatisfied. The applicant swears in her affidavit filed in support of her application that she has no assets or income apart from her pension from the Czech Republic.
To put the respondents therefore to further costs in these proceedings seems to be neither fair nor just. In those circumstances the application filed on 1 August 2008 will stand dismissed.
RECORDED : NOT TRANSCRIBED
In answer to a claim for costs the applicant says that she has no capacity to pay them. These are proceedings within the general jurisdiction of this Court. Under the Migration Act, orders for costs can be made. Under the Human Rights and Equal Opportunity Act, orders for costs can be made. The Court has a general power to make an order for costs under the Federal Magistrate's Act 1999.
Ordinarily unsuccessful parties to proceedings meet the costs of the successful party on a party and party basis. It is often said that one or other of the parties cannot afford an order for costs nor have the capacity to meet an order for costs and therefore no order for costs ought to be made. But that is only one matter that needs to be considered. There is no good reason, in my view, for costs not to follow the event.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
Schedule 1 of the Federal Magistrate's Act 2001 prescribes the costs that are ordinarily payable in this Court. In an application in the general federal law jurisdiction of the Court for the event described in the schedule as initiating or opposing an application which includes interim orders up to the completion of the first Court day, the lump sum amount is $2,505. The first respondent seeks an order in the sum of $1000 which is less than half of the amount allowed in the scale.
The second respondent seeks a similar amount. In my view it is appropriate to order the amounts claimed by each of the respondents, those amounts being less than half of the amount allowed by the scale in the circumstances of this case. That claim seems to be generous given the amount of material that has been filed by the applicant which each of the respondents need to have perused.
ORDERS DELIVERED
I will order that the applicant pays the first respondent's costs fixed in sum of $1000. Further order that the applicant pay the second respondent's costs fixed in the sum of $1000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
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