SZHIX v Minister for Immigration

[2006] FMCA 310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIX v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 310

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – judicial review application discontinued.

COSTS – Injured and impecunious applicant – costs reasonably and properly incurred by the Minister and likelihood of insolvency – consequences of insolvency.

Bankruptcy Act 1966 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Applicant: SZHIX

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG2972 of 2005

Judgment of: Driver FM

Hearing date: Decided on written submissions

Date of Last Submission: 20 February 2006

Delivered at: Sydney

Delivered on: 7 March 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the judicial review application filed on 17 October 2005, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2972 of 2005

SZHIX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By notice filed on 30 January 2006 the applicant in this matter discontinued his legal proceedings. By letter dated 13 February 2006 the Minister applied for a costs order. The Minister seeks costs fixed in the sum of $2,500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”, or such other sum as the Court deems fit. The letter contains submissions supporting the making of a costs order by reference to the work undertaken on behalf of the Minister.

2. The applicant opposes any costs order.  By facsimile letter dated 20 February 2006 the applicant submits that he has been released from the immigration detention centre at Villawood after 20 months detention.  He suffered health problems and was injured in detention and since his release he has been billed for the cost of his detention in the sum of $78,564.20.  He has no money to pay for medical assistance, let alone the existing or future debts to the Commonwealth.

Reasoning

1. Prior to 1 December 2005 there was no presumption that a party discontinuing legal proceedings in this Court is liable to pay an opposing party’s legal costs.  On and from that date a presumption of liability for costs upon discontinuance exists in relation to migration proceedings[1].  The presumption does not apply in this case as the application under the Migration Act 1958 (Cth) was made well before the Rules were amended.

   [1] Rule 44.15(2) of the Federal Magistrates Court Rules.

2. The making of a costs order is a matter for the Court, in the exercise of discretion.  I accept the applicant’s contentions that he is unwell and injured following a lengthy period of immigration detention and that he is impecunious.  The applicant has submitted a medical opinion from Dr Mark Cohen verifying an ankle injury.  The applicant has also submitted documentary evidence of his debt to the Commonwealth of $78,564.20 in respect of his period of detention.  It is distasteful in these circumstances to have to make a costs order against the applicant.  Nevertheless, courts must from time to time do unpleasant things.  Impecuniosity and physical injury are not in themselves reasons for the Court to refrain from making a costs order.  I accept that work has properly and reasonably been undertaken on behalf of the Minister up to the time the proceedings were discontinued, for which the Minister should receive recompense.  I accept the assessment of costs on a party/party basis of $2,500.

3. If the applicant believes that the Commonwealth is responsible for his poor health and his injury he has a remedy.  He can sue the Commonwealth for damages in a court of competent jurisdiction.  If the applicant is unable to pay his debts he also has a remedy.  He can present a debtor’s petition under the Bankruptcy Act 1966 (Cth)[2].  If the applicant is made bankrupt it would have the benefit of protecting him from recovery action in respect of his debts[3].  It would also have the incidental effect of preventing the applicant from leaving Australia during the period of his bankruptcy[4].  That is a matter for the applicant to consider.

   [2] s.55

   [3] s.58(3)

   [4] ss.77(1)(a)(ii) and 272(c)

4. I will make the costs order sought by the Minister.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 March 2006