SZHBK v Minister for Immigration

[2006] FMCA 36

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 36

MIGRATION – RRT decision – application for judicial review dismissed – supplementary judgment following receipt of further submissions.

Federal Magistrates Court Rules 2001, r.16.05(2)

SZHBK v Minister for Immigration & Anor [2005] FMCA 1834

Applicant: SZHBK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2451 of 2005

Judgment of: Smith FM

Hearing date: 8 December 2005

Delivered at: Sydney

Supplementary judgment delivered on: 18 January 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K Morgan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Order 3 made on 19 December 2005 in relation to costs is confirmed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2451 of 2005

SZHBK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

SUPPLEMENTARY REASONS FOR JUDGMENT

1. On 19 December 2005 I made a final order dismissing the application in this proceeding, and published my reasons (see SZHBK v Minister for Immigration & Anor [2005] FMCA 1834).

2. At all times during the proceeding the applicant was held in immigration detention.  He was brought to court for the hearing on 8 December 2005, and declined to seek an adjournment in circumstances I  described in [30]‑[31] of my reasons.  I therefore completed the taking of evidence and submissions on that day, and reserved my judgment.  I did not, however, hear submissions from the parties in relation to issues of costs. 

3. The first respondent was not able to bring the applicant to the court on the day when I published my judgment and made my orders.  Although I considered that it was appropriate to make a costs order in favour of the first respondent, I reserved liberty to the applicant to make a written submission before 13 January 2006 on that topic.  My order clearly did not invite nor allow further evidence or submissions from the applicant in relation to the merits of his application.  

4. As I explained in my reasons, at the time of the hearing the applicant had not received advice from the advisor appointed under the Federal Court’s free legal advice scheme.  However, on 19 December 2005, a copy of my orders and judgment were forwarded by my associate to the appointed advisor as well as to the applicant.  The letter drew the advisor’s attention to paragraph 31 of my judgment.  This explained that I had ordered that my orders would not take effect until 31 January 2006, so as “to allow the applicant an opportunity to get legal advice on my above reasons”.  It was my intent, which I consider should have been clear from the circumstances and from my orders as entered, that such advice would concern rights of appeal from my orders. 

5. Unfortunately, the legal advisor does not appear to have appreciated that I had made final orders when dismissing the application, and that the liberty given to the applicant to make a further submission was limited to the issue of costs. 

6. On 13 January 2006, the advisor sent by facsimile to the Court a document he described as “the Applicant’s submission”.  This consists of factual and legal submissions supporting the applicant’s grounds of review which I had addressed in my judgment.  In significant respects it asserted facts which were not established by the evidence which had been presented at the hearing. 

7. Even if I were able to read this correspondence as an application by the applicant for me to set aside my order dismissing the application, I do not consider that I have power to do this, either under Federal Magistrates Court Rule 16.05(2) or under any implied power.  Moreover, even if I had power, in circumstances where the applicant at the hearing had clearly declined an opportunity which I had offered for him to have an adjournment to obtain legal assistance, and had requested that I complete the hearing and give judgment, I am not persuaded by anything in this correspondence or in the advisor’s submission that it would be appropriate for me to set aside my order and reconsider my judgment.  

8. In relation to costs, the advisor’s submission is: “any orders as to costs would cause immense financial hardship on the Applicant, as the Applicant is currently in Villawood Detention Centre and has no financial support”. 

9. I have considered that submission, and am not persuaded that the circumstances referred to, including the applicant’s impecuniosity, should cause me to depart from the usual approach to costs orders, which was reflected in Order 3 made on 19 December 2005.  That order will therefore be confirmed.  

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

Associate:  Lilian Khaw

Date:  18 January 2006