Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396

Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396

The Court declined to order costs against Mr Fonua because, although he prepared documents for an appeal that was in fact hopeless, he acted without fee or reward, did not contravene the Migration Act or New South Wales legal profession legislation, was not shown to have known the appeal was hopeless, and was not shown to have acted simply to prolong the appellants' stay in Australia or otherwise knowingly participate in an abuse of process. Those circumstances were insufficient to justify the exceptional remedy of a non-party costs order.

Jurisdiction
Australia
Judgment Date
05 December 2002
Procedural Posture
Motion for a Costs Order Against a Non Party in a Migration Appeal / Full Court After the Appeal Was Dismissed as Incompetent and an Application for Leave to Appeal Was Dismissed
Outcome
The Minister's application for Mr Fonua to pay the costs of the appeal was dismissed.
Legal Topics
['non Party Costs Orders' 'hopeless Appeal' 'abuse of Process' 'migration Assistance by Non Lawyer' 'section 78 B Notices' 'ministerial Intervention Under the Migration Act']
['costs' 'migration Law' 'administrative Law' 'federal Court Procedure'] ['non Party Costs Orders' 'hopeless Appeal' 'abuse of Process' 'migration Assistance by Non Lawyer' 'section 78 B Notices' 'ministerial Intervention Under the Migration Act']

Case Brief

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Procedural Posture

Motion for a Costs Order Against a Non Party in a Migration Appeal / Full Court After the Appeal Was Dismissed as Incompetent and an Application for Leave to Appeal Was Dismissed

Legal Issues

  1. 1 ["Whether the Court should order a non-party who was neither a legal practitioner nor a registered migration agent to pay the Minister's costs of a hopeless appeal." "Whether Mr Fonua knowingly participated in or contributed to an abuse of the Court's process by preparing appeal documents and s 78B notices." 'Whether unpaid assistance by Mr Fonua contravened the Migration Act 1958 (Cth) or the Legal Profession Act 1987 (NSW).']

Ratio Decidendi

The Court declined to order costs against Mr Fonua because, although he prepared documents for an appeal that was in fact hopeless, he acted without fee or reward, did not contravene the Migration Act or New South Wales legal profession legislation, was not shown to have known the appeal was hopeless, and was not shown to have acted simply to prolong the appellants' stay in Australia or otherwise knowingly participate in an abuse of process. Those circumstances were insufficient to justify the exceptional remedy of a non-party costs order.

Court Disposition

The Minister's application for Mr Fonua to pay the costs of the appeal was dismissed.

Orders

  • ["The Minister's application for Mr Fonua to pay the costs of the appeal be dismissed."]