SZACR v Minister for Immigration

[2003] FMCA 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACR v MINISTER FOR IMMIGRATION [2003] FMCA 263

MIGRATION – Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa.

PRACTICE & PROCEDURE – Hearing – failure of the applicant to appear – applicant’s solicitor advises court that application cannot proceed – no instructions to withdraw application – whether adjournment should be granted – previous adjournment by consent – adjournment refused – application dismissed – costs order.

Applicant: SZACR

Respondent: MINISTER FOR IMMIGATION & MULICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1356 of 2002

Delivered on: 29 May 2003

Delivered at: Sydney

Hearing date: 29 May 2003

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: Mr Churchill
Martin Churchill

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs of the application, assessed at $1,750.00.

3. I allow 28 days to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1356 of 2002

SZACR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This application was adjourned on an earlier occasion until today at the request of the applicant. At that stage it was intended that an amended application would be filed which would state more precisely what decision was sought to be reviewed. That has not in fact taken place. The applicant has not given her solicitor instructions to withdraw the application. The applicant’s solicitor has sought an adjournment which is opposed. There is no evidence or any material before me which to my mind would justify granting an adjournment. I have refused that application.

2. The applicant is not in a position to proceed today. The material before the Court has indicated that the applicant, when a child aged 11, had been granted a visa with a particular condition placed upon it which seems unusual in the circumstances, in that the condition was placed upon the child but not upon her adult siblings. The applicant has an elder sister in Australia who is an Australian citizen. The applicant applied for a protection visa, which was refused on the basis that she did not come within the criteria. She applied for a bridging visa.

3. I have indicated that I had some difficulty in understanding why the applicant applied for the visa for which she had applied and had not sought some other means of residing in this country on a permanent basis. I am also mindful of the fact that on the applicant’s case there would appear to be strong compassionate grounds for consideration. The appropriate course would appear to have been that the applicant should have sought a visa which would meet her particular circumstances, but for some reason this has not been done. Her legal adviser is now seeking other avenues which may be of more assistance to her.

4. I am mindful of the strong compassionate grounds which relate to this young lady’s desire to remain in Australia, but she is not in a position to proceed with her application to the Court today, and it would appear that an adjournment, even if I had granted one, would not have improved the position.

5. I am of the view that the only option available to me at this stage is to dismiss the application. Accordingly, the application is dismissed.

6. The respondent seeks an order for costs. The matter has been before the Court on more than one occasion. It was adjourned until today and is not in a position to proceed. The applicant is a young woman 18 years of age. She has no income, she is not in receipt of a grant of legal aid. Her solicitor has no instructions that she has any assets other than those which would normally be held by an unemployed 18 year old.

   
   

   Mr Churchill for the applicant conceded, with a frankness that does him credit, that the respondent’s legal advisers were not informed until today that the matter would not be proceeding, and, in fact, the respondent’s solicitor was informed of that fact by telephone only in the last couple of hours.

7. At that stage, counsel had been briefed. Counsel had put the time aside and the matter was listed for hearing on a final basis. It seems to me that the respondent has incurred costs which should be the subject of a costs order. If the respondent had been informed a week or more ago counsel could well have taken another brief and there would have been no need for the matter to prepared for hearing today.

8. Against this, the Court is faced with an impecunious applicant, a young woman who has only been an adult since last November, and one who, from the documents before me, appears to have had some difficulties in life. She is one for whom it can be said that there are humanitarian reasons for her case being considered on strong compassionate grounds. There is nothing before me that would indicate that the applicant would have the wherewithal to meet a costs order in the sum of $4,000.00.

9. I would comment that the sum sought is not an unreasonable sum in the circumstances. In the last matter of this nature before me last year I made an order for costs in the sum of $3,500.00. On that occasion, unlike today’s case, neither the applicant nor the applicant’s legal advisers paid the Court the courtesy of appearing. That is a different situation from the case today, where at least the applicant’s solicitor has appeared.

10. In the absence of any other factor, I would have awarded costs in the sum of $3,500.00. In the light of the particular circumstances of the applicant I propose to reduce that amount significantly, but I believe that costs order should still be made. The applicant is to pay the respondent’s costs in the sum of $1,750.00.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  26 June 2003