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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - discontinuance of proceedings.

PRACTICE AND PROCEDURE - Costs - whether costs payable when an applicant in migration proceedings discontinues prior to trial.

SZAAU v Minister for Immigration [2003] FMCA 86 (13 March 2003)

SZAAU v Minister for Immigration [2003] FMCA 86 (13 March 2003)
Last Updated: 28 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAU v MINISTER FOR IMMIGRATION
[2003] FMCA 86



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - discontinuance of proceedings.

PRACTICE AND PROCEDURE - Costs - whether costs payable when an applicant in migration proceedings discontinues prior to trial.



Federal Magistrates Court Rules 2001 (Cth)

NAGY v Minister for Immigration [2002] FMCA 189

Applicant:
SZAAU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ972 of 2002



Delivered on:


13 March 2003



Delivered at:


Sydney



Hearing date:


13 March 2003



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Mr Z Chami

Clayton Utz



ORDERS

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ972 of 2002

SZAAU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This matter came before me today on a procedural application made on behalf of the respondent Minister seeking a costs order. The circumstances are that the applicant who had applied for review of a decision of the Refugee Review Tribunal ("the RRT") in October 2002 discontinued his application by filing a Notice of Discontinuance on 7 January 2003.

2. Under the Federal Magistrates Court Rules 2001 (Cth) there is no presumption that a discontinuing party is liable to pay the other party's costs. Accordingly, it was necessary for the Minister, if he seeks an order for costs, to apply for such an order. That is what the Minister has now done. The costs application is opposed by the applicant. Mr Chami submits, on behalf of the Minister, that I should make an order for costs because significant costs have been incurred on behalf of the Minister in responding to the principal application up to the date of discontinuance.

3. Mr Chami told me, from the bar table, that solicitor and client costs and disbursements incurred up to that point were approximately $2,500. The greater part of those costs relate to the preparation of a substantial court book. Some costs also relate to appearance at a directions hearing on 23 October 2002. That directions hearing was conducted before a Registrar. It is appropriate to note that in accordance with usual practice, the Registrar informed the applicant at that time of his potential costs liability should he be ultimately unsuccessful in the proceedings.

4. The applicant was referred for advice under the pilot legal advice scheme instituted by the Minister in New South Wales. He did not receive advice pursuant to that scheme because of illness. The applicant told me from the bar table that his decision to discontinue the proceedings was his own and was not related to any legal advice that he may have received. He asked me to take into account a letter which he wrote to my associate on 17 February 2003, in which he explained the discontinuance. I accepted that letter into evidence, exhibit A1.

5. In the letter, the applicant explained that he is in dire financial circumstances, that he is unable to work, that he had undergone serious heart surgery in November 2002 and that he was concerned to terminate his application before substantial legal costs had been incurred. The applicant also stated that he did not receive a copy of the court book. Mr Chami was able to confirm that the court book was sent to the applicant's proposed legal adviser and not the applicant. Nevertheless, it is clear that the court book was prepared on behalf of the Minister and those costs have been incurred.

6. In the matter of NAGY v Minister for Immigration [2002] FMCA 189,

I considered the circumstances in which it would be appropriate to make an order for costs against an applicant in a migration case where the applicant discontinues prior to a final hearing. In that decision, I observed that applicants are given minimal information about what they can expect in a hearing in the courts on appeal from a decision of the RRT and that they do not have an opportunity to receive independent legal advice if self represented until such time as they participate in the pilot legal advice scheme in New South Wales.

7. I took the view that applicants participating in that scheme should not be subject to a costs penalty if they acted promptly following receiving advice to discontinue their proceedings. I added that if applicants in those circumstances did not act promptly it would be appropriate to make a cost order. In this matter, the applicant did not receive any advice under the pilot advice scheme due to illness. He did, however, act approximately two months prior to the adjourned date for the hearing of this matter to discontinue his application. By doing so, significant costs have been saved and he is entitled to have that factor taken into account.

8. I also note that the applicant states that he is a poor man and that he suffers from a serious health complaint. These are matters of concern, but if I were otherwise persuaded that a costs order should be made,

I would not refrain from making an order simply by reference to the applicant's financial or health circumstances. Those are, in my view, properly matters that the Minister could take into account in deciding whether or not to pursue the collection of costs after a costs order has been made. I have come to the view that it would be appropriate to make a costs order, bearing in mind that significant costs had been incurred by the Minister up until 7 January 2003, and that the Minister was bound to incur those costs following the filing of the application.

9. However, the applicant is entitled to consideration for acting well in advance of the hearing date in discontinuing his application. This leads me to the view that the award of costs should be a modest one. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to his application, including today's proceedings, which I fix in the sum of $500.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 21 March 2003
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