SZDIE v Minister for Immigration

[2006] FMCA 135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIE & ANOR v MINISTER FOR IMMIGRATION [2006] FMCA 135

MIGRATION – Visa – protection visa – application for review of RRT decision.
PRACTICE & PROCEDURE – Discontinuance – costs – circumstances justifying costs order.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth)

First Applicant: SZDIE

Second Applicant: SZDIF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1112 of 2004

Delivered on: 27 January 2006

Delivered at: Sydney

Hearing date: 27 January 2006

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Reynolds

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Applicant is to pay the Respondent’s costs fixed in the sum of $6,000.00.

2. I allow eight (8) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1112 of 2004

SZDIE

First Applicant

SZDIF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs. 

2. The Applicants sought a review of the decision of The Refugee Review Tribunal that was handed down on the 27^th January 2004, by coincidence, exactly two years ago. That decision affirmed a decision by a delegate of the Minister not to grant Protection Visas to the Applicants.

3. The Applicants engaged a firm of solicitors to act for them in connection with an application for review of that decision. The application under s.39B of the Judiciary Act came before a Registrar of the Court on 5^th February 2005 and was listed for Final Hearing on

   
   

   5^th May 2006. 

4. On 25^th October 2005 the Applicants withdrew the instructions of their solicitors. 

5. On 14^th December 2005 they filed a Notice of Discontinuance. 

6. Because the Notice of Discontinuance was filed more than 14 days before the Final Hearing the leave of the Court was not required.  Accordingly, the proceedings were discontinued as at the

   
   

   14^th December 2005. 

7. The solicitors for the Respondent Minister are seeking an order that the Applicants should pay the Minister's costs. They seek an inclusive figure of $6,300.00. 

8. The First Applicant has attended Court today. He says that he and his wife came to Australia to assist their daughter in order to look after their granddaughter who is handicapped. He said their lawyer did not tell them about any costs penalty. What he did say apparently was that even if their application was not successful, they would still be able to stay in Australia for two years. They have been looking after the child in order to assist their daughter in return for accommodation and living expenses. Their daughter is in financial difficulties as a result of divorce proceedings. They themselves have no funds to meet a costs order. 

9. For the Minister, Mr Reynolds, solicitor, has submitted that the costs in this matter have been greater than in many other applications of this type. This is partly due to the fact that the application contains some 22 grounds for review and a Notice of Objection to Competency has been filed. 

10. The Applicants filed their Notice of Discontinuance about a year and a half ago and the proceedings have necessitated a lot of work, even though the hearing date is still four months away. 

11. It is the usual practice that where a party discontinues, another party may apply for costs. This is provided for in Rule 13.02.  In my view, this is a case where the Respondent Minister should be entitled to a costs order.

12. The difficult financial situation of the Applicants is not of itself a reason for not making a costs order.  It is however a matter to be taken into account when considering whether time to pay should be granted.

13. Again, I accept the fact that the Respondents have had to prepare a Court Book and have had to prepare the matter for hearing. In my view, the amount sought, bearing in mind the degree of warning that the Respondents received that the application would be discontinued, is perhaps a little bit high. 

14. Costs are discretionary and in my view it would be an appropriate exercise of my discretion to make an order for costs in the sum of $6,000.00. 

15. I propose to order that the Applicants are to pay the Respondents costs in the sum of $6,000.00. Taking their financial circumstances into account, I will allow eight months to pay. I vacate the hearing date on the 5^th May 2006. I require a transcript of my reasons and the application will be removed from the list of cases awaiting finalisation. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  3 February 2006