SZEOH v Minister for Immigration (No.2)
[2005] FMCA 1346
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOH & ANOR v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 1346 |
| MIGRATION – Young applicant – born and lived in Australia – application dismissed – costs application – whether appropriate in these circumstances. |
| Federal Magistrates Court Rules 2001, r. 21.02(2)(a) |
| Applicant: | SZEOH & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3075 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 May 2005 |
| Date of Last Submission: | 13 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J. Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The applicant pay the respondent’s costs set in the fixed amount of $4000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3075 of 2004
| SZEOH & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 26 August 2005 I dismissed an application filed in this Court on 14 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 August 2004 and handed down on 21 September 2004 to affirm the decision of a delegate of the respondent Minister made on 5 January 2004 to refuse protection visas to the applicants. The applicants were mother and daughter.
At paragraph [20] of my judgment (SZEOH and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1178) I noted, with the greatest respect to the Minister, that in the case of a 9 year old girl (the second applicant) who had been born in and who had lived her entire life in Australia, that this may have been a compelling case for the exercise of Ministerial discretion pursuant to s.417 of the Migration Act. In this context, and after an application from the respondent for a costs order in the fixed sum of $4000, I felt it appropriate to seek written submissions from both parties as to whether, in such circumstances, it was appropriate to make an order for costs, and consequentially an order in the amount of $4000. Written submissions were received from the respondent on 2 September 2005 and from the applicant mother on 13 September 2005.
I accept the written submissions made by the respondent with the exception of paragraph [7]. There, Mr. Bird for the respondent Minister submits that:
“In any event, the Minister will not ordinarily consider cases for intervention under section 417 of the Act where there is “migration-related litigation that has not been finalised”. The Minister deems such cases to be “inappropriate for consideration” on the basis that Court proceedings “may affect the exercise of [her] public interest powers:” see Migration Series Instruction 386 at [3.3.1 and 3.4.1]”.
I note that this is a policy position taken by the Minister and it was always open to the Minister to intervene and act in a contrary fashion. The word “ordinarily” supports my view.
In any event, I have considered the applicant’s submissions and note that impecuniosity, the only factor put forward by the applicant, is not a sufficient reason not to make a costs order in the circumstances of this case. I accept the submissions (except for paragraph 7) of the respondent and for these reasons I find it appropriate, in all the circumstances, to make an order for costs and that $4000 is a reasonable and appropriate amount given the nature of the work undertaken by the respondent’s solicitors. I make that order accordingly.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 16 September 2005
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