Rosson v Tesoriero

REASONS FOR JUDGMENT 1 On 6 May 2011 I made orders setting aside the decision of the respondent to refuse to accept the applicant's application under s 476A of the Migration Act 1958 (Cth) (the s 476A application) without the relevant (in this case, reduced) filing fee being paid: see Rosson v Tesoriero [2011] FCA 449. 2 The application for an order of review sought not only an order setting aside the challenged decision, but also an order remitting the matter for reconsideration. At the time of publishing my reasons for judgment, I raised with the parties the utility of remitting the matter for reconsideration. In that regard I noted that, if there remained any utility in reconsidering the matter, reg 14(2) of the Federal Court of Australia Regulations 2004 (Cth) (the Federal Court Regulations) empowered a Judge of the Court to exercise the discretion in an appropriate case. The material on which the applicant proposed to rely in any reconsideration of his request that the discretion under reg 14(2) be exercised in his favour in respect of the filing of the s 476A application (the applicant's request) was already in evidence before me. 3 On 6 May 2011 I granted leave to the parties to make further submissions, in writing, on the question of what, if any, consequential orders should be made. I said that I would then determine that question on the papers. 4 On 24 May 2011 the applicant provided written submissions on that question. On 27 May 2011 the solicitor acting for the respondent advised that the respondent would not be making any submissions on that question. 5 The applicant's submissions can be summarised as follows: There is no need to remit the matter to the respondent as decision maker, because a Judge of the Court is empowered by reg 14(2) to consider the applicant's request. Section 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is an additional source of power, whereby an order could be made directing the respondent to accept the s 476A application without payment of the relevant fee. All the material necessary to make a decision under reg 14(2) is currently before the Court. It is clear from the material before the Court that the respondent accepted that the applicant was unable to pay the relevant fee and that, but for the respondent's view about the circumstances in which reg 14(2) applied, the s 476A application would have been accepted without payment of the relevant fee. The discretion conferred by reg 14(2) should be exercised in favour of the applicant, in all the circumstances. Given that the relevant fee has in fact been paid, though "under protest", it is also appropriate that the Court order that the amount of $100 paid by Legal Aid NSW on the applicant's behalf be refunded to it. 6 As I noted in my earlier reasons, the s 476A application was heard and determined on 23 February 2011: see Rosson v Minister for Immigration and Citizenship [2011] FCA 194. In those circumstances the question arises whether there is any utility at all in the present matter being reconsidered. However, as I also noted in my earlier reasons, Legal Aid NSW did pay the relevant fee on behalf of the applicant as an extraordinary measure to enable the s 476A application to be filed and, thus, to enable that application to be heard and determined. Should it turn out to be the case that the discretion under reg 14(2) should have been exercised, at the relevant time, to permit the filing of the s 476A application without the relevant fee being paid at that time, the possibility exists that the applicant or Legal Aid NSW might be entitled to a refund of the fee. The significance of this possibility lies in the fact that the applicant was, and remains, contingently liable to Legal Aid NSW under s 46 of the Legal Aid Commission Act 1979 (NSW) to reimburse Legal Aid NSW for the fee that it paid on his behalf. Given that contingency, I am satisfied that there is utility in the applicant's request being reconsidered. I am also satisfied that I have the power to undertake that reconsideration and, in the interests of efficiency, it is appropriate that I do so. 7 In my earlier reasons for judgment I set out the applicant's circumstances as they existed at the time he made his request: see at [5]-[12]. For the avoidance of doubt, I take these matters into account in considering his request afresh. No further evidence of his circumstances at that time has been put before me. In light of those circumstances, I am satisfied that this is an appropriate case in which the discretion under reg 14(2) should be exercised in the applicant's favour. I will make an order to give effect to that decision. 8 However, I am not persuaded that, in this proceeding, I should make any order with respect to the refund of the amount of $100 paid by Legal Aid NSW on behalf of the applicant at the time of filing the s 476A application. I have a number of concerns about that matter. First, no such relief was sought by the applicant in his application commencing the proceeding. I have not heard argument about that matter. I am not convinced that the determination of whether the applicant or Legal Aid NSW is entitled to a refund of that money is straightforward. Secondly, in so far as it asserts its own rights or entitlements, Legal Aid NSW is not a party to this proceeding. Thirdly, no material has been placed before me to indicate that there is any necessity to make such an order. Given the order I propose to make, it may well be that the question of a refund can be dealt with administratively, or otherwise by agreement. If it cannot be, or if there is any dispute about the matter, then the applicant and Legal Aid NSW will retain such rights as he or it has to seek a refund, by separate proceedings if need be. Fourthly, I hold significant reservations about the appropriateness, in any event, of making such an order against the respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.