SZFJD v Minister for Immigration

[2007] FMCA 256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 256

MIGRATION – Refugee Review Tribunal – Protection visa.

PRACTICE AND PROCEDURE – Discontinuance – costs - amount fixed.

Applicant: SZFJD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3793 of 2004

Judgment of: McInnis FM

Hearing date: 23 February 2007

Delivered at: Melbourne

Delivered on: 23 February 2007

REPRESENTATION

Counsel for the Applicant: Mr A.L. Hands

Solicitors for the Applicant: Access Law

Solicitor for the First Respondent: Ms U. Jayasinghe

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended by deleting the words “Multicultural Affairs” and inserting in lieu thereof “Citizenship”.

2. The Applicant be granted leave to discontinue the proceedings.

3. The Applicant shall pay the First Respondent's costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3793 of 2004

SZFJD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the Applicant has been granted leave to discontinue proceedings.  The application is an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant. 

2. The proceedings have had a somewhat chequered history in this court, and so much is evident from the affidavit of Udara Jayasinghe which was affirmed by the deponent on 22 February 2007.  That affidavit is in support of the First Respondent's submission that the court should make an order that the Applicant pay the First Respondent's costs to be fixed in the sum of $10,000.00.  I note in that affidavit that the costs and disbursements appear to be a total amount of $11,780.00.

3. Since this application was filed on 31 December 2004, the court has amended its rules so that there is now provision for a fixed amount of costs in the sum of $3,500.00 where proceedings are discontinued.  However, that provision relates to the amended provisions in the rules; that is, part 44.  It is not appropriate to apply that part nor the new costs regime to this application given the application was filed on a date prior to the commencement of the amended rules.

4. That leaves the court in the position of making an assessment of costs and exercising the power it undoubtedly has to fix costs.  I made it clear during the course of the exchange that schedule 1 of the court's rules was introduced at a time when this court did not have jurisdiction to hear and determine applications arising out of the Migration Act, and hence the amount of costs for general federal law applications set out in that schedule is clearly inappropriate.

5. This court, as a matter of procedure, has tended to fix costs in a consistent manner where an Applicant does not succeed and usually it results in costs being fixed in a sum somewhere in the region of $6,500.00.  That amount, however, is an amount which is fixed if the matter proceeds to a fully contested hearing.

6. In this case the history of the matter clearly indicates that both parties have incurred costs as a result of various adjournments and mentions.  However, a delay in this matter has occurred in more recent times, primarily for the very good reason that the participants in these proceedings were awaiting the outcome of the High Court decision in QAAH.  It is upon the delivery of the court's decision in that matter that the Applicant has reconsidered its position and decided to discontinue this application.

7. Applicants should be encouraged in my view to consider their position in the light of current law and should not be discouraged from seeking to discontinue by the imposition of costs which may place a significant and undue burden upon Applicants for judicial review.  In my view that is a matter which is relevant in the exercise of the court's discretion which it undoubtedly has when fixing the amount of costs payable.  It does provide a proper basis upon which costs should not be paid at all but rather is still a matter where the court should be seen to encourage and not discourage Applicants to discontinue applications where, upon review of the current law, an assessment is made of the prospects of success in a manner which encourages an Applicant to then discontinue.

8. I am satisfied that the discontinuance in this case has occurred in a timely manner even though leave has been required to be given to the Applicant to discontinue this proceeding.  In my view it is also relevant to take into account that counsel have not been briefed to appear this day in a contested hearing, even though I note on a previous occasion counsel was briefed to appear and did attend court even though the matter was then adjourned pending the outcome of the High Court's decision in QAAH.

9. Doing the best I can on the material before me, it is my view that the amount of $3,500.00, which is the amount suggested by the Applicant of being an appropriate amount for costs in this matter, is not an amount that would accurately reflect the true circumstances of this application.  However, likewise I do not accept that the amount of $10,000.00 is an amount which this court should award even though I note that it is near to what might be described as solicitor-client costs incurred by the First Respondent.  As the court would normally make an award of costs in the region of $6,500.00, having regard to the fact that counsel is not briefed to appear this day for a contested hearing, it is my conclusion that a reasonable amount in all the circumstances for costs is an amount of $5,500.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  23 February 2007