SZIZE v Minister for Immigration - [2007] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 132

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether time for filing of application for costs by First Respondent be extended.

Federal Magistrates Court Rules 2001, r.13.02(2); sch.1 pt.2

Applicant:

SZIZE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1811 of 2006

Judgment of:

Emmett FM

Hearing date:

7 February 2007

Date of last submission:

7 February 2007

Delivered at:

Sydney

Delivered on:

7 February 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent:

Ms Quinn, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1811 of 2006

SZIZE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Pursuant to an application filed in Court returnable instanter today, the first respondent seeks leave to extend the time for making an application for costs beyond the 28-day period specified in r.13.02(2) of the Federal Magistrates Court Rules 2001.
The first respondent reads in support of the application the following affidavits:
i)The affidavit of Parish Honor Elsegood, affirmed 9 January 2007, annexing a copy of a letter sent to the applicant at her identified address for service and enclosing submissions in relation to costs on behalf of the first respondent;
ii)The affidavit of Leonard Keith Leerdam, affirmed 9 January 2007, annexing a copy of a letter from the first respondent to my Chambers seeking a date for such application;
iii)The affidavit of Therese Mary Quinn, affirmed 6 February 2007, annexing the Department’s records of the applicant’s movements in and out of Australia. That annexure discloses that the applicant departed Australia on 28 December 2006.
Whilst no application was filed by the first respondent prior to today’s date, in light of the notice given to the applicant of the first respondent’s intention to seek those orders, I am satisfied that it is appropriate that leave be given to the first respondent to file in Court an application returnable instanter seeking the following orders:
“1. Leave is granted to the First Respondent to make an application for costs against the applicant pursuant to Rule 13.02(1) of the Federal Magistrates Court Rules 2001 on 7 February 2007, despite being outside the 28 day period specified in Rule 13.02(2).
2. The applicant is to pay the First Respondent’s costs of the application filed on 27 June 2006 fixed in the sum of $3,000.”
Mr Leerdam stated in his affidavit that the reason for the application for costs being made outside the time required under the Rules is in the following terms:
“My reasons for seeking such leave relate to the delay in obtaining instructions from the first respondent’s department over the Christmas period. We sought those instructions on 21 December 2006. However, instructions to pursue costs were not provided until 5 January 2007.”
The first question for the Court is whether or not an extension of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 132
Decision Date: 7 February 2007

CaseChat Overview and Summary

The matter of SZIZE v Minister for Immigration and Citizenship was heard by the Federal Magistrates Court of Australia. The applicant, SZIZE, sought a review of a decision made by the Refugee Review Tribunal. The first respondent, the Minister for Immigration and Citizenship, sought leave to extend the time for making an application for costs beyond the 28-day period specified in Rule 13.02(2) of the Federal Magistrates Court Rules 2001. The court was required to decide whether the time for filing the application for costs should be extended, and if so, whether the amount sought was appropriate.

The court considered the affidavits provided by the first respondent, including the affidavit of Parish Honor Elsegood, which enclosed submissions in relation to costs, and the affidavit of Leonard Keith Leerdam, which outlined the reason for the delay in obtaining instructions from the first respondent's department. The court found that the delay was due to the Christmas period and that the applicant had been on notice since 9 May 2006 of the first respondent's intention to seek costs. The court accepted the explanation for the delay and granted the first respondent leave to file an application for costs on 7 February 2007. The court also ordered that the applicant pay the first respondent's costs fixed in an amount of $3000.

The court directed the first respondent to notify the applicant at their last address for service of the orders made by the court, together with a copy of the application filed in court. The court also ordered that the name of the first respondent be amended to Minister for Immigration and Citizenship.

Orders