SZQOG v Minister for Immigration & Anor (No.2)
[2013] FCCA 689
•21 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQOG v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2013] FCCA 689 |
| Catchwords: MIGRATION – Costs –whether costs above the scheduled fixed amount to be awarded. |
| Legislation: Federal Circuit Court Act 1999 (Cth) s.79 |
| Bunnag v Minister for Immigration & Anor (No.2) [2008] FMCA 430 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZQOG v Minister for Immigration & Anor [2013] FCCA 203 |
| Applicant: | SZQOG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1845 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 21 June 2013 |
| Date of Last Submission: | 21 June 2013 |
| Delivered at: | Perth |
| Delivered on: | 21 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms J MacGowan |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Ms K Low |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant pay the first respondent’s costs in the sum of $13 292 by 31 July 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 1845 of 2011
| SZQOG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The Minister makes an application for costs and tenders in support an affidavit of Rowan John White (“Mr White’s affidavit”), sworn 29 May 2013, to which tender there was no objection by the applicant.
Essentially, Mr White’s affidavit breaks down into two substantive areas, in which it says that costs were incurred and on the basis of which an increase in costs from the normal costs of $6646 in proceedings such as this to a sum of $15 000 is sought.
The first of the substantiative areas set out in paragraph 3 are essentially matters which arise in the normal course of proceedings of this type and in part because the applicant is, or was, in detention at a remote location at the behest of the Minister and the remaining work and indeed the second directions hearing were as a consequence of those matters.
With respect to paragraph 4 of the affidavit, it is said that significant costs were incurred in this matter in relation to the applicant’s submissions and amended application which was filed and the five affidavits which were filed, two of which went to interpretation issues and three of which, put broadly, went to a review of merits issues and a review of the applicant’s further amended application.
Reviewing the applicant’s amended and further amended application, with great respect, did not amount to much at the end of the day. There is, however, more substance in the remaining items as set out at paragraph 4 of Mr White’s affidavit. The applicant’s submissions in this matter were very lengthy for a judicial review application. They were 62 pages long and by way of example, the submissions on the first ground of review at 26 pages were in fact as long as the Independent Merits Reviewer’s recommendation itself.
The hearing as a consequence of the length and detail of those submissions, was at least twice as long as an ordinary Independent Merits Review (“IMR”) judicial review hearing, and lasted almost all day. It is fair to observe, and the Court has observed in the substantive judgment: SZQOG v Minister for Immigration & Anor [2013] FCCA 203 (“SZQOG”), that the approach adopted by the applicant in respect to this matter is one which does not have proper regard to the often invoked principle in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259. Indeed, at paragraph 45 of SZQOG the Court said:
The IMR recommendation is an administrative decision at a level of generality not susceptible to minute examination upon judicial review. The reasons of an administrative decision-maker are meant to inform and not to be scrutinised in an over-zealous fashion: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The latter is a significant failing, not only on this ground of review but on most, if not all, of the grounds of review.
The Court was there dealing with ground 1. That minute examination and re-examination essentially amounted to a case where the facts as found by the Independent Merits Reviewer were sought to be impermissibly reviewed as a merits review, rather than judicial review, in the substantive proceedings.
There was also significant additional evidence tendered in these proceedings, and the Court has already observed that there were two affidavits with respect to issues of interpretation, not exclusively of the IMR proceedings, but also the entry interview of the applicant and the Refugee Status Assessment (“RSA”) interview. In that regard, the Court has, but for a minor exception, observed that the time to fix interpretation errors at the entry interview and RSA interview stage is at the IMR stage. But those affidavits, both as to interpretation and substantive issues, were, by and large, objected to by the Minister and those objections were, by and large, upheld by the Court in SZQOG: see paragraphs 10-19 of SZQOG. But those affidavits, of themselves, as has been pointed out by counsel for the Minister this morning, are themselves lengthy and would have resulted in significant additional work.
Overall, the nature of the case was such that it is simply characterised as little more than an application to this Court which sought to have the facts as found by the Independent Merits Reviewer reviewed again by this Court in a manner which, put shortly, constituted impermissible merits review, and it did so at far more length and with a re-examination which was far lengthier than most cases of this type.
In those circumstances, and bearing in mind the Court’s broad discretion with respect to costs under s.79 of the Federal Circuit Court Act 1999 (Cth), and the Court’s judgment in a number of cases, including, for example, Bunnag v Minister for Immigration & Anor (No.2) [2008] FMCA 430, the Court does have the discretion in migration cases to increase or decrease costs, notwithstanding that those costs are ostensibly fixed for most cases by Part 3 of Schedule 1–Costs to the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). In the circumstances of this case, and bearing in mind what the Court has said about Mr White’s affidavit, particularly paragraphs 3 and 4, the Court is of the view that an appropriate uplift in this case would be to double the amount set out for migration proceedings in Schedule 1, Part 3 of the FCC Rules. Therefore, the Court awards a sum of $13 292 by way of costs. So, there will be a further order that the applicant pay the Minister’s costs in the sum of $13 292 by 31 July 2013.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Deputy Associate:
Date: 2 July 2013.
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