SZAVD v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 In this matter, I delivered judgment last year on 21 July 2005 extempore acceding to argument put by Mr Braham, who appeared as amicus curiae after an order under order 80 had been issued. 2 The consequence of my acceptance of the arguments of Mr Braham was my conclusion that there has been jurisdictional error by the Tribunal. I made an order in the nature of certiorari and an order in the nature of a mandamus on 26 July 2005, those being the orders proffered by the parties pursuant to order 3 made on 21 July 2005. 3 The parties neglected, and I neglected, to address attention to the subsistence of the orders of the learned Federal Magistrate. The solicitors for the Minister drew this to my associate's attention in late December, and correctly asked that those orders of the Federal Magistrate be attended to. 4 It was agreed, as it obviously had to be agreed, that order 1 of the Federal Magistrates Court of 17 September 2004 be set aside. That order had been an order dismissing the application. It was not agreed, however, that the costs order should be set aside, and the Minister put the submission today that she should have her costs assessed in the sum of $5000 because the arguments were new on appeal and that the Minister had rightly won below. 5 Whilst not wishing to be disrespectful in the slightest of the submissions of Ms Mak, to a degree this submission is redolent of the sporting theory of justice to which I made reference in White v Overland [2001] FCA 1333. The fact is that the Tribunal's decision was infected with jurisdictional error. The litigant before the learned Federal Magistrate was unassisted by legal counsel. The point was not illuminated by counsel for the Minister. That is not a criticism of the competent and always fair Mr Smith, who appeared below for the Minister. 6 Nevertheless, in circumstances where I have concluded that there was an available argument, though not pursued, I think it would be an injustice not to set aside the costs order. 7 Given that the appellants below were not represented, it is unlikely that there would be any costs in their favour, though there may be disbursements which they could legitimately claim. 8 In my view, the appropriate additional orders to make are that orders 1 and 2 of the Federal Magistrates Court made on 20 September 2004 be set aside. Orders 1 and 2 made on 26 July 2005 stand in their place, together with an order that the first respondent pay any out of pocket disbursements of the appellants in the court below and on appeal. 9 Once again I apologise for the inconvenience to the parties in overlooking making the order, although I think the Minister's solicitors share a little of the responsibility with me, but it is my fault. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.