Break out the bunting at Villawood

Justice David Yates overturns federal government scheme to block access to justice ... He finds there is plenty of discretion for Federal Court registrars to waive filing fees for impecunious immigration detainees seeking judicial review ... Proceedings can be commenced without the fee ... Rachelle De Jager reports 

Villawood, with bunting

Last year sneaky amendments to the Federal Court regulations had the desired effect of making life more miserable for people in immigration detention.

The amendments abolished waivers and exemptions for Federal Court filing fees and instead introduced a reduced flat fee of $100.

However, even at the reduced rate the flat fees are well beyond the purse of those in immigration detention. 

Refugees banged-up on Christmas Island generally don't have a spare $100 - so they had no chance of commencing proceedings for judicial review. 

Another nifty message to people smugglers and other wretches. 

Naturally, this new fee arrangement was introduced as part of the government's "Strategic Framework for Access to Justice". 

Fortunately, Federal Court judge David Yates in Rosson v Tesoriero has struck a blow against this Orwellian version of access to justice. 

During his time in Australia young Darin Rosson had done a bit of porridge for criminal offences (Justice Yates spared us the details). 

His visa was cancelled on character grounds by a delegate of the Immigration Minister and that decision was affirmed by the AAT. Darin was to be despatched back across the ditch to Nu Zulund. 

He sought a review of that determination, but Federal Court deputy registrar Tony Tesoriero knocked back his application to waive the filing fee.

Under the 2004 Federal Court regs it was open for a person on legal aid or in custody (Rosson was at Villawood at the time) to apply for a reduced fee or for the fee to be waived. 

Represented by NSW Legal Aid, Rosson filed for a review of the deputy registrar's decision. 

He applied for the reduced filing fee to be deferred (reg 10) or, because he was in immigration detention, for his application to be filed without payment (reg 14(2) ). 

Last December Tesoriero advised that a reduced fee would be granted, but that deferment or non-payment were out of the question. 

Legal Aid rode to the rescue and to keep his proceedings alive paid the fee on the applicant's behalf.  

In February, Rosson applied for judicial review of Teseriero's December decision, and this time a deputy district registrar smiled, waiving the fee under Reg 14(2). 

The issue before Yates was whether Tesoriero was mistaken in his decision to disallow filing of the applicant's application and central to that was whether the decision inhibited the applicant's access to justice.

Tesoriero's position was that reg 14(2) is not a separate source of power and in any case allows for discretion only in specific situations, which he did not define.

He thought his authority to file an application without payment is limited, as proceedings were not already on foot and that any discretion is further restricted by the applicant's financial ability to pay the fee.

The respondent effectively upscaled the authority required under the relevant regulations to disable him from exercising discretion.

Even though the 2004 Federal Court regs have been amended and fee exemptions and waivers replaced by flat fees, Yates J held that Tesoriero's interpretation of the waiver regulation was in error and he set it aside.

Yates said that reg 14(2) need not be complicated or limited to a certain situation and it offered a source of power that would have allowed for the filing of the review application, even if the fee could not be paid. The deputy registrar had plenty of discretion and, in any event, the fee is recoverable as a debt owed to the Commonwealth.

Rosson remains liable to Legal Aid for the filing fee, a liability that could have been prevented had the registrar exercised his authority under reg 14(2) in the first instance.

A further amendment to the Federal Court regs this year now makes it clear a registrar can also grant deferral of a reduced fee. 

If the bunting has not exactly been broken out at Villawood and Christmas Island, at least it's open for those in immigration detention to have a shot at judicial review without having to stump-up the filing fees. 

Reporter: Rachelle De Jager