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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant - Applicant a citizen of Bangladesh - where Applicant files a notice of discontinuance three days before the hearing.

SZDPM v Minister for Immigration [2004] FMCA 820 (15 November 2004)

SZDPM v Minister for Immigration [2004] FMCA 820 (15 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPM v MINISTER FOR IMMIGRATION
[2004] FMCA 820




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant - Applicant a citizen of Bangladesh - where Applicant files a notice of discontinuance three days before the hearing.




Judiciary Act 1903 (Cth), s.39A

Migration Act 1958 (Cth), s.424 A

Federal Magistrates Court Rules 2001, Part 13

Applicant:
SZDPM




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1502 of 2004




Delivered on:


15 November 2004




Delivered at:


Sydney




Hearing date:


15 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Solicitors for the Applicant:


In Person




Counsel for the Respondent:


Mr Smith




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The Applicant is granted to leave to discontinue the Application.

(2) The Applicant is to pay the Respondent's costs in the sum of $4,500.00.

(3) The Application is discontinued.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1502 of 2004

SZDPM



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 5th October 2000. The Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicant.

2. The Applicant filed his application on 20th May 2004. He filed an amended application on 7th October 2004. The Application was listed for final hearing today.

3. The Respondent has prepared the Court Book and has briefed counsel. The Respondent has filed an outline of submissions. It appears that the Respondent, at least, was ready to commence the hearing today.

4. The Applicant has now decided to discontinue his application. He filed a Notice of Discontinuance by forwarding it by facsimile on Saturday 13th November. The Notice of Discontinuance only came to the attention of the Court and the Respondent's solicitors yesterday.

5. Part 13 of the Federal Magistrates Court Rules allows a party to discontinue an application. Rule 13.01(2) allows the notice of discontinuance to be filed:

a) at least 14 days before the day fixed for the final hearing of the application; or

b) with the leave of the Court or a Registrar, at a later time.

6. The Applicant has filed his notice of discontinuance almost at the last minute. By faxing it on Saturday, he has given only one working day's notice of his intention not to proceed with his Application. Clearly, it is too late to list another matter and the Respondent's counsel would be unlikely to obtain another brief at such short notice. Obviously, costs have been thrown away.

7. Rule 13.02 allows the Respondent to apply for costs in such a case. In my view, this is an appropriate matter for a costs order. The Respondent's solicitors seek the sum of $4,500.00, which is within the range that I would have ordered if the matter had gone to its anticipated half day hearing. Due to the lateness of the notice, there has been no time for the Respondent's lawyers to do anything to mitigate their loss.

8. In the circumstances, I propose to order that the Applicant pay the Respondent's costs fixed in the sum of $4,500.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 16 November 2004
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