SZQDA v Minister for Immigration and Citizenship

[2011] FCA 817

FEDERAL COURT OF AUSTRALIA

SZQDA v Minister for Immigration and Citizenship [2011] FCA 817

Citation:		SZQDA v Minister for Immigration and Citizenship [2011] FCA 817
Parties:		SZQDA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 883 of 2011
Judge:		PERRAM J
Date of judgment:		15 July 2011
Catchwords:		IMMIGRATION – application for leave to appeal interlocutory decision of Federal Magistrate – application by non-lawyer to appear for applicant who had departed Australia – application dismissed – application for fixed costs
Legislation:		Federal Court Rules   O 62 r 4
Date of hearing:	15 July 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the Respondents:	Ms E Baggett of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 883 of 2011

BETWEEN:

SZQDA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	15 JULY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused with costs.

2.Pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules the costs which are to be paid by the Applicant to the First Respondent in respect of these proceedings, including all costs orders, be fixed at $3000.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 883 of 2011

BETWEEN:

SZQDA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	15 JULY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision given by a Federal Magistrate on Saturday 9 April 2011.  On that day a Federal Magistrate dismissed an application for an interlocutory injunction restraining the deportation of the applicant to Canada.  On Sunday 10 April 2011 the present applicant filed an application for leave to appeal the Federal Magistrate’s refusal to grant the injunction and at the same time applied in an ancillary way for the grant of a further interlocutory injunction restraining his deportation pending the determination of that application for leave to appeal.

2. At some stage on Sunday 10 April 2011 the Duty Judge, Nicholas J, refused the application for the interlocutory injunction.  His Honour, however, did not deal with the application for leave to appeal.  On Monday 11 April 2011 the applicant was removed from Australia.  It is apparent that the proposed appeal is pointless.  The applicant having been deported, no utility would be served by examining whether an injunction should or should not have been issued to prevent his deportation. 

3. On the return of the leave application Mr Satchithanantham sought to appear for the applicant.  Mr Satchithanantham holds a written authorisation from the applicant to appear on his behalf in the application before Nicholas J.  He does not hold any authority to appear today.  He sought to persuade me by reference to the Minister’s notice of appearance, a letter from my associate dated 7 July 2011 and a letter from the National Appeals Registrar dated 23 June 2011 that it was accepted that he had authority to appear.  I do not accept that submission.  Even, however, had I been persuaded that Mr Satchithanantham did in fact hold a written authority to appear today, I would, nevertheless, have declined to grant him leave to appear as the short fact is that the applicant is not here and, consequently, he has no standing to appear as a McKenzie friend.

4. Insofar as he seeks to appear simply in the place of the applicant, Mr Satchithanantham is, to put the matter shortly, not a lawyer and it is only lawyers who can appear on behalf of others.  It was for that reason that I declined to grant leave to Mr Satchithanantham to appear on behalf of the applicant. 

5. The order I will make is that the application for leave to appeal is refused with costs.  I do this because the proposed appeal has no point and hence no prospects.

6. The first respondent applies for a gross sum costs order pursuant to O 62 r 4(2)(c) of the Federal Court Rules.  In support of that application the Minister relied upon the affidavit of Ms Emily Baggett which specified that the costs which had been incurred on the occasion of the interlocutory hearing on 10 April 2011 before Nicholas J were $2,638, that the costs which had been incurred in relation to the preparation for the hearing of the matter today were $2,120.50 and, finally, that the estimated costs for the hearing today were $377.50.  As I understood it, that meant that the Minister’s costs and disbursements on a solicitor/client basis to this point in the litigation were $5,136 inclusive of GST.

7. Ms Baggett, who appeared for the Minister, submitted that it would be appropriate to make a gross sum costs order in the sum of $3,000 which would be slightly less than 75% of that sum.  That, it seems to me, is an appropriate course to take. 

8. I direct, therefore, pursuant to O 62 r 4(2)(c), that the costs which are to be paid by the applicant to the first respondent in respect of these proceedings, that is, including all costs orders, is to be fixed at $3,000.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        15 July 2011