DZAAY, DZABD, DZABH and DZABJ v Minister for Immigration - [2012] FMCA 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAY, DZABD, DZABH and DZABJ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 744

MIGRATION – Judicial review of Independent Merits Review of claim for refugee status – claim for costs by applicants following compromised outcome of proceedings – Minister concedes error of law made in review process – applicants seek taxation of costs – Minister proposes cost be awarded pursuant to provisions of fixed event scale prescribed by Federal Magistrates Court Rules – matters to be considered – fixed event scale costs ordered.

Migration Act 1958 (Cth), ss.5, 46A
Federal Magistrates Act 1999, s.79
Federal Court Rules, rr.23, 25
Federal Magistrates Court Rules

Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14

Applicants:

DZAAY, DZABD, DZABH and DZABJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT MERITS REVIEWER

File Numbers:

DNG 32 of 2011, DNG 38 of 2011, DNG 42 of 2011 and DNG 45 of 2011

Judgment of:

Brown FM

Hearing dates:

13 December 2011

Date of Last Submission:

13 December 2011

Delivered at:

Adelaide

Delivered on:

23 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Hanley

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the first Respondents:

Mr Prince

Solicitors for the first Respondents:

Australian Government Solicitor

ORDERS

The order for costs in each of these matters which was previously made is confirmed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

DNG 32 of 2011, DNG 38 of 2011, DNG 42 of 2011 and DNG 45 of 2011

DZAAY, DZABD, DZABH and DZABJ

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

Each applicant in these proceedings is an off shore entry person, as defined by section 5 of the Migration Act 1958 (Cth) (hereinafter referred to as “the Act”). This designation arises because each of them arrived in Australia, by boat, at Christmas Island, without the authorised travel documents.
On arrival, each applicant claimed to be a person to whom Australia owed protective obligations, as a result of being a refugee, as defined by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Each applicant claimed to be an Afghan citizen of Hazara ethnicity and Shia religion, who had been persecuted in Afghanistan as a result of his religion and race. As a consequence of these claims, each applicant was interviewed by a departmental officer of the first named respondent to ascertain whether Australia was under a duty to protect them pursuant to the Refugees Convention. This process is known as a Refugee Status Assessment “the RSA”.
Following the RSA, in each case, it was determined that Australia did not have an obligation to provide any of the applicants with protection. Accordingly, thereafter each applicant was entitled to seek an independent merits review “the IMR” of the original decision refusing refugee status.
Again, in the case of each applicant, the IMR was unsuccessful and in each case the reviewer recommended to the First Respondent that Australia not provide refugee protection to any of them. It being the case that the Minister is provided with a discretion to grant an off shore entry person a protection visa to remain in Australia pursuant to section 46A(2) of the Act.
The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[1] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions.
[1] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
In addition, in Plaintiff M61/2010E the High Court held that decisions in respect of applications for protection visas, arising at the IMR stage, were subject to judicial review in the original jurisdiction of the High Court as a consequence of paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
Following their respective IMR decisions, each party commenced proceedings in this court seeking a judicial review of the decision not to afford each of them refugee status. Each party was represented by the same legal aid organisation – the Northern Territory Legal Aid Commission, which prepared and filed the necessary application and supporting affidavit material.
The proceedings were filed in respect of each applicant on 25 July 2011; 29 July 2011; 12 August 2011; and 26 August 2011. In each case, following a directions hearing on 9 September 2011, the matter was listed for hearing before me in the sittings of the court at Darwin in the week commencing 12 December 2011.
Each case was estimated to take up to half a day to hear. In each case the Minister was represented by the same solicitors – the Australian Government Solicitor, who was ordered to prepare the necessary casebook in anticipation of the hearing. The same generic procedural orders were made in each case.
On arriving in Darwin for the circuit on 12 December 2011, I was advised by the legal representatives for each of the parties that the various applications for judicial review had been consensually resolved. As such, in each case, I was invited to make the same declaratory order, namely:
The Court declares by consent that:
In recommending to the first respondent that the applicant was not a person to whom Australia owes protection obligations the second respondent made an error of law.
Following this declaration, in each case, there was a short notation which categorised the error of law, which both parties accepted had arisen in the respective case.
In DZAAY the notation read as follows:
“The first respondent accepts that the second respondent failed to afford procedural fairness to the applicant by failing to consider the applicant’s submission dated 12 June 2011.”
In DZABD the notation was in the following form:
“The first respondent accepts that the second respondent made an error of law in determining that it was not possible to characterise a particular social group as ‘persons with Pakistani accent and look’”.
In DZABH it was as follows:
“The first respondent accepts that the second respondent made an error of law in failing to consider the applicant’s claim that the State of Afghanistan was unwilling or unable to protect him, after finding that Hazara-Kuchi violence would not be for a Convention reason.”
Finally, in DZABJ the notation was as follows:
“The second respondent made an error of law by failing to give consideration to the applicant’s claim that should he return to any part of Afghanistan he would suffer persecution involving serious harm in the form of significant economic hardship that would threaten his capacity to subsist.”
In each case, it was appropriate that I make the consent order, with the applicable notation, on which the parties had agreed. In each case, the consent order finalised the proceedings, other than in respect of the issue of costs.
It was the position of Mr Prince, counsel for the Minister, that the Court should make the same order for costs in each case on the basis of the schedule of costs contained in the Federal Magistrates Court Rules. In each case, he submitted the appropriate sum was $3,123.00.
On the other hand, it was the position of Ms Hanley, counsel for each of the applicant’s concerned that the costs applicable should be determined by means of a taxation, in the event the parties themselves were not able to agree the costs.
On 13 December 2011, following brief submissions from each of the parties, I decided to accede to the position propounded by Mr Prince. Accordingly, I fixed costs in each case in an amount of $3,123.00. I indicated that I would provide brief written reasons in support of this decision at a later stage. These, belatedly, are those written reason. I apologise for the delay in providing these reasons.

The legal provisions applicable

The Federal Magistrates Court has jurisdiction conferred upon it in respect of both family law proceedings and matters of more generalised federal jurisdiction. In regards to matters arising under its general federal law jurisdiction, the Court is awarded the authority to make an order for costs by virtue of section 79 of the Federal Magistrates Act 1999.
The relevant provisions read as follows:
“(2)The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.”
The applicable Rules of Court are set out in part 21 of the Federal Magistrates Court Rules. In particular, pursuant to order 21.02(2), in making an order for costs, the Court may do any of the following:
“(2)In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
In section 3(2) of the Federal Magistrates Act, the Commonwealth Legislature has set out the objects of the Federal Magistrates Court in the following terms:
to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
to enable the Federal Magistrates Court to use streamlined procedures; and
to encourage the use of a range of appropriate dispute resolution processes.
No doubt, the intention of the Legislature in this regard was to reduce the cost of court proceedings pursuant to Federal legislation and provide litigants with a cheap and cost effective means of accessing justice within the Federal jurisdictional sphere. Rule 21.10 creates a scale of costs by reference to the occurrence of fixed events. In my view, the creation of such a scale was designed to help achieve these objects. In my view, this scale is a streamlined procedure exemplar.
The fixed event scale enables litigants to readily calculate the costs by references to the stages reached in proceedings. Necessarily it is a quick process. In this regard, the fee allowable at the relevant time for these proceeding, in respect of a general federal law matter, for opposing an application up to the completion of the first court day was fixed in the sum of $3,123.00.
However, it is implicit in the applicable rules that the court retains a discretion regarding both the quantum and calculation of any costs awarded in proceedings. The circumstances of the particular case concerned may render the application of the fixed scale of costs inequitable.
Essentially, it is Mr Prince’s position that matters of public policy and comity with other refugees cases, where the Minister is successful, dictate that the fixed event scale should be adopted to calculate costs arising.
On the other hand, it is Ms Hanley’s position that it is appropriate in these particular matters to adopt an idiosyncratic method of calculating the costs arising. Essentially, she says that the subject matter of each of the cases is different, although each has followed the same procedural path, and as such it is just that the costs arising should be calculated individually.

Discussion

The Federal Magistrates Court is a busy first instance court with an extensive jurisdiction in both Family Law and matters of General Federal Law Application. In regards to matters in the latter category, judicial review case of decisions arising under the Migration Act form a significant component of the court’s work.
In the Second Reading Speech, which introduced the bill which ultimately became the Federal Magistrates Court Act the then Attorney-General, Mr Williams said as follows:
“While the Commonwealth judicial structure has served Australia well, the changes that have occurred in Australian society over recent years have lead to an increasing range of matters coming before Commonwealth courts. Many of these matters are not complex and do not need to be dealt with by superior court judges…The need for a court which can handle less complex federal matters more efficiently and effectively is now pressing.”
In this regard, the Attorney-General encouraged the federal magistrates to “develop a new culture, with an emphasis on user-friendly, streamlined procedures.” It was anticipated that such an emphasis would be reflected in the rules of the court.
In cases involving the judicial review of refugee decision, the Minister is, for obvious reasons, always funded by the public purse. The applicant seeking the review is, almost invariably, due to his or her circumstances in coming to this country, a person of limited means. This is particularly so in the case of persons who are categorised under the applicable legislation as “off shore entry person” because they arrived in Australia by boat.
Accordingly such applicants are either self-represented or represented pro bona or by an appropriate legal aid organisation. In the case of legal aid organisations, they have agreements with the Commonwealth regarding arrangements for their funding, including in the case of matters involving clients claiming refugee status. Each applicant in the present matter is represented by the Northern Territory Legal Aid Commission.
Accordingly, it is frequently the case in matters involving judicial review of decisions arising under the Migration Act that either directly or indirectly both parties are funded by the public purse.
In addition, it is a frequent occurrence that the applicants for refugee status are being held in refugee detention. In these circumstances, it behoves everyone concerned with such matters to act expeditiously. In this regard, as a model litigant, officers of the Commonwealth are both required and encouraged to concede promptly in cases where error is acknowledged to have arisen.
In exercising its jurisdiction in these types of matter, the court has adopted a practice of awarding fixed event costs to the Minister, in cases where the Minister is successful in resisting the claim of jurisdictional error. The success of the Minister in these cases cannot be regarded as an isolated or extraordinary occurrence.
The reality of these cases is that the Minister is unlikely to ever recoup these costs, given the indigent circumstances of the applicants concerned. The award has potentially only administrative significance in the event of any future application under the applicable legislation by the person concerned.
In a jurisdiction characterised by a high volume of matters, where the majority of the parties concerned are publically funded in some form or other, it is likely to be helpful to the parties concerned that there is a consistency in the amounts of costs awarded, regardless of which party is ultimately successful. Such an approach is also likely to be supportive of an expeditious resolution of matters, which is also in the public interest.
In all the circumstances of these cases, it seems to me to be a proper exercise of my discretion to award costs that I adopt a practice which is consistent with what occurs when the Minister is successful on judicial review. That is costs are awarded in accordance with the fixed event scale arising under the Federal Magistrates Court Rules.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 23 August 2012