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MIGRATION - Review of Minister's decision not to consider substituting a more favourable decision - application found incompetent by consent.

SZABB v Minister for Immigration [2003] FMCA 130 (19 February 2003)

SZABB v Minister for Immigration [2003] FMCA 130 (19 February 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABB v MINISTER FOR IMMIGRATION
[2003] FMCA 130



MIGRATION - Review of Minister's decision not to consider substituting a more favourable decision - application found incompetent by consent.

COSTS - Consideration of the potential for a costs order to be made against a non-party.



Plaintiff S157 0f 2002 v Commonwealth [2003] HCA 2

Applicant:
SZABB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1041 of 2002



Delivered on:


19 February 2003



Delivered at:


Sydney



Hearing date:


19 February 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:


Mr A Markus

Australian Government Solicitor



THE COURT ORDERS, BY CONSENT THAT

(1) The application is dismissed.

THE COURT ODERS THAT

(1) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $1,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1041 of 2002

SZABB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. In this matter, having heard submissions from Mr Markus, for the respondent Minister, on a notice of objection to competency filed on 4 November 2002, the applicant has consented to an order that his application be dismissed. I am satisfied, having heard from Mr Markus and having read comprehensive written submissions prepared on behalf of the respondent, that the application is incompetent and that it should be dismissed. I will therefore order by consent that the application be dismissed.

2. Mr Markus has sought an order for costs on behalf of the Minister and has indicated that, in his submission, an order for costs in the sum of $1,000 would be appropriate. That submission takes into account the concession made by the applicant, however late, and a concession on behalf of the respondent that representation both by a solicitor and an advocate at hearing in this context of this matter may not have been necessary.

3. I am conscious of the fact that there have been a number of applications for review from persons of Tongan nationality which have sought to review a decision plainly excluded from review in this Court and the Federal Court. It has, for a significant period of time, been plain that such applications are hopeless and that position is not altered by the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2. There is an issue whether any person other than the applicants in such matters should be responsible for payment of costs. I have indicated to Mr Markus that I would be prepared to entertain an application for costs to be ordered against a non-party if it could be established that such an application was, in effect, being controlled by someone other than the applicant.

4. While I can understand that there may be persons in the Tongan community who may wish to assist applicants to pursue matters in the Court, it is of no assistance to applicants to encourage them to pursue applications which have no prospect of success and a person, whether they are a legal practitioner or migration agent or simply a person wishing to become involved in legal proceedings to assist another, needs to be aware that the potential exists for non-parties to be ordered to pay costs where the non-party is, in substance, controlling legal proceedings. In this matter, I have nothing before me that could satisfy me that anybody other than the applicant is responsible for the application. I will say nothing further on that matter in these proceedings.

5. In my view, having regard to the clarity of the legal issue, the relative simplicity of the facts and the concession, however late, made by the applicant, an order for costs in the sum of $1,500 would be appropriate. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,500.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 April 2003
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