SZHDI v Minister for Immigration and Anor (No.2)
[2007] FMCA 1786
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDI v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 1786 |
| MIGRATION – Review of Refugee Review Tribunal decision – costs – costs above amount in Schedule to Federal Magistrates Court Rules – applicant to pay first respondent's costs. |
| Migration Act 1958 |
| SZHDI v Minister for Immigration and Anor [2007] FMCA 1595 |
| Applicant: | SZHDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2622 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 May 2007 |
| Date of Last Submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms B Nolan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The applicant pay the first respondent’s costs set in the amount of $10,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2622 of 2005
| SZHDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 21 September 2007 I handed down judgment in SZHDI v Minister for Immigration and Anor [2007] FMCA 1595 (“SZHDI”), a matter involving an application brought by a Lebanese national (SZHDI) who sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 January 1998, which affirmed a decision of a delegate of the respondent Minister made on 22 March 1996 to refuse to grant a protection visa to him.
In this matter I upheld the Minister’s objection to competency and made an order dismissing the application (see SZHDI).
The applicant attended in person at the handing down of the judgment and Ms T Quinn appeared for the respondent Minister. Ms Quinn pressed that I also make an order that the applicant pay the Minister’s costs in the fixed sum of $10,000.
Given that the amount sought exceeded the range normally sought and considered for matters of this type, and given that the applicant appeared without the assistance of an interpreter in the Arabic language, I deferred consideration of this issue and gave both parties the opportunity to file any evidence by way of affidavit and or make submissions on this issue. I should note that while there was no relevant interpreter available, the applicant did demonstrate a good level of understanding of English and further note in any event that he has been in Australia for over twelve years. Nonetheless, in all the circumstances I allowed the parties to provide further material on this issue to the Court.
For the respondent, I now have before me the affidavit of Ms Therese Quinn, a solicitor in the employ of the respondent’s solicitors, affirmed on 25 September 2007, with annexures. To date, the applicant has not provided anything further to the Court in this regard.
There is nothing from the applicant before the Court now to argue against the making of a costs order, and nor, in all the circumstances can I discern any reason to depart from the normal course in making an order for costs in favour of the successful party.
As to the amount, I note that in relation to proceedings under the Migration Act 1958 (“the Act”)(see Part 44 of the Federal Magistrates Court Rules 2001 and in particular, Rule 44.15(1) and with reference to Part 2 of Schedule 1), that in circumstances where a proceeding is concluded at a final hearing, an amount of $5,000 may be fixed. I take the view however, that while the amounts set out in the Schedule to the rules to this Court are a guide, ultimately the issue of costs is discretionary in this Court, guided by what is reasonable in all the circumstances.
It was of course, a matter for the applicant as to how he chose to run his litigation before this Court. The applicant was not legally represented but appears to have had some assistance from a person described as a “community worker” who has, for example, assisted with the preparation of the transcript of the Tribunal hearing in this matter.
In my view, what is a reasonable amount in all the circumstances must be determined with regard to the case that the applicant sought to put before the Court and the work done by the Minister’s legal representatives in responding to this case. With this in mind, I note the matter set out in paragraph 4 of the affidavit of Ms Quinn and am satisfied that the work done was done in responding to the applicant’s claims and the manner and conduct in which the claims were put before the Court, and that the Minister should recover a reasonable amount, bearing in mind, what Ms Quinn has set out at paragraph 5 of her affidavit, the numerous listings for hearing and the complexity of the evidence presented in this case. I note in particular, that while the evidence provided, for example, by Mr Laba Sarkis, as to the claimed errors in the interpretation provided at the hearing before the Tribunal, for the most part referred to minor errors of translation and were of no significance, nonetheless, the Minister was put to the expense of having to respond to each and every item.
In all the circumstances, I am satisfied that the amount sought by the respondent (that is, $10,000) is a reasonable amount. The applicant, despite opportunity, has put nothing before the Court to challenge the Minister’s assertion in this regard. I will make the order as sought by the Minister.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 23 October 2007
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