SZICV v Minister for Immigration and Anor (No.2) - [2006] FMCA 1363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICV v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1363

MIGRATION – RRT decision – jurisdiction of Court to review – failure of applicant to apply for extension of time – inappropriate actions of Minister’s solicitor – test case elements – application ruled incompetent – no order made as to costs.

Judiciary Act 1903 (Cth), s.55ZF
Migration Act 1958 (Cth), ss.477, 477(2)

Migration Litigation Reform Act 2005 (Cth)

Hunt v Minister for Immigration & Ethnic Affairs (1993) 41 FCR 380
Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 254
Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 147 FCR 123
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
Wodrow v Commonwealth of Australia [2003] FCA 403

Applicant:

SZICV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG142 of 2006

Judgment of:

Smith FM

Hearing date:

5 September 2006

Delivered at:

Sydney

Delivered on:

5 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms S Thode

Counsel for the First Respondent:

Ms G Broderick

Solicitors for the Respondents:

Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG142 of 2006

SZICV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this matter I published a judgment on 4 August 2006 in SZICV v Minister for Immigration & Anor [2006] FMCA 1063. I explained my reasons for dismissing the applicant’s application as incompetent. I held that, although the applicant commenced his proceeding for judicial review within the mandatory 84 days allowed under s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), it was filed more than 28 days after 1 December 2005 and no application for an extension of time was ever made by him within the 56 days allowed by s.477(2).
In my reasons, I expressed my dismay that the applicant’s omission to apply for an extension of time was not appreciated by him before the expiry of the time for such an application, and that it was not brought to his attention by either the Court or the respondents’ solicitor, in particular, at the first court date on 15 February 2006.
The matter has now been listed today to receive costs applications.
The applicant seeks an order for costs against the first respondent, on the basis that the circumstances provided exceptional reason for not following the usual rule that an award of costs should follow the event. The applicant’s counsel argued that, although generally an opposing solicitor owes no duty to advise another party on points of procedure, this is subject to the solicitor’s duty to a Court and his or her professional duties in relation to unrepresented litigants. Such duties arose in the present case due to the applicant’s unfamiliarity with the English language and Australian law, his unrepresented situation, and his being held in immigration detention by officers of the first respondent. She argued that the first respondent’s solicitor in the present case had a duty clearly to inform the Court and the applicant at the first court date that he had until 23 February 2006 to file an application for extension of time. This duty arose in particular, by reason of the fact that she acquired knowledge outside the Court from the applicant as to his date of actual receipt of the Tribunal decision which showed the necessity for such an application.
Counsel for the applicant also submitted that the Minister, through her solicitor, failed to comply with model litigant requirements which are raised by a direction from the Attorney‑General under s.55ZF of the Judiciary Act 1903 (Cth), and which were quoted by Stone J in Wodrow v Commonwealth of Australia [2003] FCA 403 at [38]. In particular, the obligations under paras.2(f) and (g) of Appendix B to the Legal Services Directions:
2.The obligation requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:
…
(f)not taking advantage of a claimant who lacks the resources to litigate a legitimate claim,
(g)not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement, …
It was submitted that the Minister took a tactical decision not to raise the issue more clearly before 23 February 2006. This gave rise to a large amount of costs which were incurred by both parties when arguing the jurisdictional questions which were addressed in my judgment.
For her part, the Minister also seeks costs, including for today’s application, on the basis that costs should follow the event. It was submitted that her solicitor had no duty to tell the applicant of the need to file an extension of time application before 24 February 2006, and that observance of duties to the Court and to an unrepresented applicant were satisfied by the statement to the Court which I quoted at [42] of my judgment.
However, I have decided that the present circumstances do take the matter out of the normal costs rule.
As I noted in my principal judgment, the solicitor for the respondent became aware outside the Court at the first court date on 15 February 2006, by the use of an interpreter provided by the Court, that this unrepresented applicant produced by the Minister from detention admitted actual receipt of the Tribunal’s decision prior to 1 December 2005. The Minister then took a jurisdictional point in a response filed after the first court date, which asserted that an extension of time was required and that no application for extension had been filed.
My judgment at [41]‑[44] and [69]‑[73] raised the suggestion that the Minister through her solicitors allowed the applicant to fall into an irreversible jurisdictional trap, in circumstances where she was aware that the applicant was unrepresented, held in her custody at an immigration detention centre, and unlikely to appreciate the new jurisdictional limits introduced on 1 December 2005.
In response to this suggestion, the Minister has filed no evidence that the applicant’s attention was clearly drawn to the fact that he could avoid the jurisdictional trap by simply applying to the Court for an extension of time before the expiry of the 84 day period on 23 February 2006.
I accept that the Minister’s solicitor was faced with a situation which was novel due to the recent introduction of the new time limit under the Migration Litigation Reform Act 2005 (Cth) and the new rules of the Court. I also accept that she obliquely sought to alert the applicant and the Court to the issue, by making reference at the first court date to the foreshadowed response. I still, however, regret that she did not expressly alert the applicant to the simple way in which he could have met the foreshadowed point, by applying orally for an extension of time. I also regret that she did not alert the Court to the statement which the applicant made outside the Court, and that this showed that the making of such an application was necessary on his part.
I have concluded that the Minister’s solicitor took a decision not to draw the applicant’s attention to the point beyond the statement made to the Court which I quoted in my judgment, and that she decided at that time or subsequently to take advantage of the applicant’s omission to apply for an extension of time. In my opinion, this was an approach to the Minister’s role in this litigation which was inappropriate to the known circumstances of the applicant. I do not consider it necessary for me to make any judgment on whether it was contrary to the Commonwealth’s model litigant policy or was otherwise open to criticism. However, I consider that it is proper for the Court to mark its disapproval by declining to award costs to the Minister.
I also consider that the matters addressed in my judgment involved significant elements of a test case in relation to the novel time limitation on judicial review of migration decisions which was introduced by the Migration Litigation Reform Act 2005 (Cth). I was greatly assisted when preparing my judgment by comprehensive submissions prepared by Counsel for both sides. I consider that the novelty of the issues in relation to the court’s powers of amendment, and the general significance of these issues to migration litigation, would also justify departure from the normal rule that costs should follow the event (see Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 147 FCR 123 at [3], and compare Weinberg J in Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 254 at [82] citing Gummow J in Hunt v Minister for Immigration & Ethnic Affairs (1993) 41 FCR 380 at 386).
I have therefore concluded that I should not make an order for costs in favour of the Minister in this proceeding.
However, I am not persuaded that I should go further and order the applicant’s costs to be paid by the Minister. As I have indicated above, the incompetence of the applicant’s application was a matter which flowed from his own completion of his application form, including the absence in it or in his affidavit of a statement as to when he had actual receipt of the Tribunal’s decision.
I am not persuaded that the conduct of the Minister’s solicitors in this case should be marked by additional disapproval of the Court by way of a costs order against the Commonwealth, nor, in my view, does the test case elements of the proceeding justify an award against the successful party.
There may be reasons for the Commonwealth to consider making an ex gratia payment towards the legal costs of the applicant, which have provided the Court with contradicting legal arguments which were for the benefit of the Court. I note also that the issue has now gone on appeal, and that the Commonwealth may be contemplating the benefits of the applicant again being legally represented. However, it is not my function to make recommendations in relation to the outcome of any applications for such assistance.
For the above reasons, I propose to make no orders whatsoever in relation to the costs of this proceeding, including the costs of today’s listing.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 September 2006