FEDERAL COURT OF AUSTRALIA

SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 974

SZFDZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1127 OF 2006

MOORE J

4 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of Driver FM of 19 May 2006: SZFDZ v Minister for Immigration [2006] FMCA 717. His Honour dismissed as incompetent an application to show cause why relief should not be granted in relation to a decision by the Minister, or an officer on the Minister’s behalf, not to act on a request to exercise the discretion under s 417 of the Migration Act 1958 (Cth), to substitute a more favourable decision for the decision of the Refugee Review Tribunal of 10 April 1996. An application to review the Tribunal's decision was dismissed by Barnes FM on 3 May 2005: SZFDZ v Minister for Immigration [2005] FMCA 557.

2                     The decision concerning s 417 was communicated to the applicant by letter dated 13 April 2006. It explained that the applicant's case had been reassessed in light of the additional information provided together with information provided previously, but that her case did not fall within the Minister's Guidelines for identification of cases where it may be appropriate to exercise the power.

3                     The Minister submitted below that the Federal Magistrates Court lacked jurisdiction to determine the application because it was a “private clause decision”, in relation to which that Court had no jurisdiction pursuant to s 476(2)(d) of the Act. Specifically, it had been a decision by the Minister not to exercise or not to consider the exercise of the power under  417 of the Act, which, by operation of s 474(7)(a), was a privative clause decision.

4                     Her Honour's reasons for dismissing the application appear at [5]:

“Mr Prince, who appeared as amicus curiae this morning, raised an issue of whether the correspondence attached to the applicant's affidavit disclosed that in fact no consideration at all had been given to the issue in this instance by the Minister. That may well be so, but it appears that the decision by the Minister's department is based on longstanding instructions by the Minister as to how requests of this nature are to be handled. In addition, as is pointed out by Ms Dejean, for the Minister, s 474(3)(j) covers a failure to make a decision. There is, in my view, no doubt that the Court lacks jurisdiction under the Migration Act to entertain this application. I say nothing of the jurisdiction that may be available in the High Court or the Federal Court.”

5                     At the hearing in this Court, the applicant sought that a Mr Toufic Laba-Sarkis speak on her behalf. Mr Sarkis described himself as a “community volunteer” who had made the representation to the Minister on the applicant’s behalf and prepared or assisted the application to prepare the application for leave to appeal and the draft notice of appeal.

6                     Mr Laba-Sarkis pointed to the last sentence of [5] in her Honour’s reason, “I say nothing of the jurisdiction that may be available in the High Court or the Federal Court”, apparently in support of the proposition that this Court could review the Minister’s decision.

7                     The Minister submitted that the application for leave to appeal should be dismissed with costs because there were no reasonable prospects of success. First, the Federal Magistrate was clearly correct in concluding that there was no jurisdiction to review the Minister's decision for the reasons accepted by the Federal Magistrate. This was so regardless of whether the request was referred to the Minister for her personal consideration, and regardless of whether the delegate's decision was affected by jurisdictional error, notwithstanding there was no evidence at all to support such an assertion. Secondly, as was clear from s 417(7) of the Act, the Minister had no duty to consider the power under s 417, and therefore relief could not have been granted in the Court below even if there had been jurisdiction to consider the application.

8                     It is not apparent to me that there was any error in the Federal Magistrate's decision. For the reasons advanced by the Minister, the applicant would have no prospects of success in any appeal. Leave to appeal is refused with costs.

9                     The remaining issue is whether costs should be ordered against Mr Laba-Sarkis. Mr Markus submitted that the Court should consider this course in light of Mr Laba-Sarkis’ admission that he drafted the documents filed in this Court, referring to ss 486E and F of the Act. Section 486E provides:

Obligation where there is no reasonable prospect of success

(1)      A person must not encourage another person (the litigant ) to commence or continue migration litigation in a court if:

(a)     the migration litigation has no reasonable prospect of success; and

(b)     either:

(i)       the person does not give proper consideration to the prospects of success of the migration litigation; or

(ii)     a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.

(2)      For the purposes of this section, migration litigation need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(3)      This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.

10                  Under s 486F(2), where the court finds that the migration litigation had "no reasonable prospects of success", the court must consider whether an order under s 486F (1) should be made. Subsection 486F(1) provides that where a person contravenes s 486E, the court may make one or more of three orders set out in that subsection. Relevantly, the orders include an order that the person pay a party other than the litigant the costs incurred by that party because of the commencement or continuation of the migration litigation: see s 486F(1)(a).

11                  In resisted the making of a costs order against him, Mr Laba-Sarkis referred to the reasons of Bennett J in SZFCX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 394, although he did not identify the basis for his reliance. In that case, Mr Laba-Sarkis was granted leave to speak on behalf of an appellant who successfully appealed from a decision of a Federal Magistrate dismissing an application for review of a decision of the Tribunal. In granting leave for Mr Laba-Sakis to speak on the appellant's behalf, her Honour said at [16]:

"A court has an inherent right in regulating its own proceedings to allow a person, not being a party or a party´s lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice. However such an application is not granted as a matter of course; Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481. While there are no disciplinary measures available for any lay advocates, in this case it was relevant that the case was complex, the appellant had genuine difficulties in representing himself. Mr Laba-Sarkis was familiar with the matter and I was of the view that Mr Laba-Sarkis would be able to present the case better and more efficiently than the appellant could. In these unusual circumstances, I was satisfied that Mr Laba-Sarkis would be of assistance to the appellant and to the Court and to the efficiency of the hearing. I granted leave for Mr Laba-Sarkis to speak on behalf of the appellant."

12                  However, the outcome of another case in which Mr Laba-Sarkis has also spoken on behalf of a migration litigant has no real bearing on the appropriate costs order to be made in this case. It does not affect an assessment of whether he gave "proper consideration to the prospects of success" under s 486E(1)(a) to the application now before the Court.

13                  At the hearing, it was not clear to me that Mr Laba-Sarkis understood the basis on which Mr Markus made his application for a costs order against him. I propose to reserve on costs and direct that Mr Laba-Sarkis file any written submissions and any affidavit in support on the question of costs within 14 days.

Associate:

Dated: 4 August 2006

The Applicant appeared in person assisted by Mr T Laba-Sarkis