Hossain v Minister for Immigration
[2015] FCCA 2363
•7 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSSAIN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2363 |
| Catchwords: COSTS – Migration – where relevant change of circumstance – grant of another type of visa – failure to advise of relevant change of circumstance until shortly before hearing – whether other steps might have been taken. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02, 21.2, 44.15(1) and (2), Schedule 1, Part 1, Item 9, Part 2, Division 1, Item 3 and Division 2 Federal Circuit Court of Australia Act 1999 (Cth), s.79 Migration Act 1958 (Cth), s.476 Migration Regulations1994 (Cth), Schedule 2, cl.572.223, Schedule 5A, cl.5A405 |
| Ann Street Mezzanine Pty Ltd v KPMG [2011] FCA 453 Sir David Napley, The Technique of Persuasion (4th Edition) (London: Sweet & Maxwell, 1991) |
| First Applicant: | MUHAMMAD SADEK AL HOSSAIN |
| Second Applicant: | RAHAN AFROZ |
| Third Applicant: | JANNATUL FERDOUS USHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 288 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | On the papers |
| Date of Last Submission: | 23 June 2014 |
| Delivered at: | Perth |
| Delivered on: | 7 September 2015 |
REPRESENTATION
| For the First, Second and Third Applicants: | Mr MSA Hossain in person, and by leave for the second and third respondents. |
| Counsel for the First Respondent: | Mr PJ Hannan |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
The applicant pay the first respondent’s costs in the sum of $8531 by 7 October 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 288 of 2013
| MUHAMMAD SADEK AL HOSSAIN |
Applicant
| RAHAN AFROZ |
Second Applicant
| JANNATUL FERDOUS USHA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Costs are in dispute in these proceedings. On 24 October 3013 the applicant applied for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) made on 27 September 2013. The Tribunal Decision is at Court Book (“CB”) 282-293. On 26 May 2014 the Court dismissed the Judicial Review Application, and made programming orders with respect to the determination of the issue of costs.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicants are from Bangladesh: CB 6-8. The first applicant is married to the second applicant: CB 26. The third applicant is the daughter of the first and second applicants: CB 113;
b)on 21 March 2011 the applicants applied to the Department for Student Visas: CB 23 and 118;
c)on 19 May 2011 a delegate (“Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) refused the application for Student Visas (“Delegate’s Decision”): CB 108-112;
d)on 7 June 2011 the applicants applied to the Tribunal for a review of the Delegate’s Decision: CB 112-120. The applicants were assisted by a registered migration agent: CB 121, 151, 178, 181, 185 and 273;
e)on 21 May 2012 a child (“Australian Born Child”) of the marriage of the first and second applicants, and who is not one of the applicants, was born: CB 188 and 287 at [23];
f)by letter dated 14 August 2013 the Tribunal invited the applicants to appear before the Tribunal (located in Sydney) by video link from Perth: CB 169;
g)on 6 September 2013 the Tribunal conducted a hearing at which the applicants and their migration agent attended: CB 185;
h)on 20 September 2013 the applicants’ migration agent provided various documents to the Tribunal: CB 273 and 288-289 at [36];
i)on 27 September 2013 the Tribunal handed down the Tribunal Decision: CB 282-293 in which the Tribunal affirmed the Delegate’s Decision not to grant the applicants Student Visas: CB 282;
j)on 24 October 2013 the applicants filed the Judicial Review Application;
k)on 13 November 2013 a Registrar of the Court made the following orders:
1.The first respondent shall file two copies and serve one copy of the Court Book on the applicants on or before 11 December 2013.
2.Other than the Court Book, all evidence relied upon by the parties must be presented by way of affidavit and in the event that a party seeks to rely on evidence of the contents of any sound recording, the party must file and serve a transcript verified by affidavit.
3.The applicants shall file and serve on or before 24 February 2014:
3.1 an amended application giving particulars of the grounds of review; and
3.2 any further affidavits upon which they intend to rely at the hearing of the matter.
4.A hearing under rule 44.12 of the Federal Circuit Court Rules 2001 be dispensed with.
5.The application be listed for final hearing at 2.15 pm on 26 May 2014 before a Judge.
6.The applicants file and serve an outline of submissions not less than 14 days before the hearing.
7.The first respondent file and serve an outline of submissions not less than 7 days before the hearing.
8.There be liberty to the parties to request that the proceedings be listed for further directions or for the hearing of an application in a case on a date allowing five working days’ notice to the other parties.
9.Costs be reserved.
l)on 14 January 2014 the applicants and the Australian Born Child applied to the Department for subclass 457 visas (“457 Visas”);
m)on 24 February 2014 the applicants filed an amended Judicial Review Application (“Amended Judicial Review Application”);
n)on 7 March 2014 the Department granted 457 Visas to the applicants and the Australian Born Child;
o)the applicants did not file submissions in accordance with the Registrar’s orders of 13 November 2013, or at all;
p)on 20 May 2014 the Minister’s outline of submissions for hearing (“Minister’s Hearing Submissions”) were filed in this Court;
q)on 26 May 2014 the matter came on for hearing before the Court in accordance with the Registrar’s orders of 13 November 2013;
r)on 26 May 2014 the Court dismissed the Judicial Review Application and made programming orders for the filing of any affidavits and submissions on costs;
s)the applicants have filed no affidavits or submissions pursuant to the Court’s orders of 26 May 2014; and
t)on 23 June 2014 the Minister filed submissions on costs (“Minister’s Costs Submissions”).
Particular facts relevant to costs in this matter
It is not in dispute that on 26 May 2014, in the court room, shortly before the matter was called on for hearing, the first applicant informed Counsel for the Minister of the granting of the 457 Visas to the applicants.
It is also not in dispute that at no time prior to 26 May 2014 did any of the applicants, or anyone on behalf of the applicants (eg a migration agent):
a)inform the Minister’s solicitors or the Department of Immigration and Border Protection’s (“Department”) Litigation Section that the applicants and the Australian Born Child had applied for 457 Visas;
b)inform the Minister’s solicitors or the Department’s Litigation Section that the applicants and the Australian Born Child had been granted 457 Visas; or
c)inform the Minister’s solicitors or the Department’s Litigation Section that the applicants wished to discontinue this matter.
At the hearing on 26 May 2014 the first applicant informed the Court of the granting of the 457 Visas to the applicants, and sought the dismissal of the Amended Judicial Review Application. On that basis the Court dismissed the Amended Judicial Review Application, subject to the issue of costs.
Costs – some principles
Relevant principles with respect to costs include the following
a)costs are awarded not to punish an unsuccessful party, but rather to indemnify, at least partially, the successful party in respect of the costs of bringing or defending the litigation: Cachia v Hanes (1994) 179 CLR 403; (1994) 68 ALJR 374; (1994) 120 ALR 385; CLR at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ;
b)costs usually follow the event: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship [2013] HCA 53; (2013) 251 CLR 322; (2013) 88 ALJR 324; (2013) 304 ALR 135; (2013) 136 ALD 457 at [241] per Kiefel and Keane JJ (“Plaintiff M76/2013”);
c)special features are necessary to justify departure from the usual rule that, unless good reason to the contrary is shown, a wholly successful respondent should receive costs: NAMU of 2002 v Secretary, Department of Immigration & Multicultural &Indigenous Affairs [2002] FCA 961 at [8] per Beaumont ACJ (“NAMU”);
d)because the discretion to award costs must be exercised judicially, “good reasons” mean reasons connected with or leading up to the litigation: NAMU at [8] per Beaumont ACJ; Latoudis v Casey (1990) 170 CLR 534; (1990) 65 ALJR 151; (1990) 97 ALR 45; (1990) 50 A Crim R 287; CLR at 557 per Dawson J (“Latoudis”);
e)a party seeking an order different from that which reflects the usual rule that costs follow the event, bears an onus to convince the Court that the usual order ought not issue: Latoudis at 569 per McHugh J;
f)the opportunity to challenge the decision of a Minister or Commonwealth agency does not mean that the Minister or Commonwealth agency should be deprived of a costs order: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No. 2) [2011] FCAFC 84; (2011) 280 ALR 91 at [12] per Emmett, McKerracher and Foster JJ; and
g)lack of legal knowledge is a misfortune and not a privilege: Gallo v Dawson (1990) 93 ALR 479; (1990) 64 ALJR 458 at 459 per McHugh J, and a self-represented litigant cannot rely on that status as an excuse for noncompliance with court directions: Jewel & Jewel [2013] FCWA 108 at [39]-[43] per Walters J.
The Court does not usually undertake a hypothetical trial for the purposes of determining who should bear the costs of a matter which has not proceeded to trial (eg because a notice of discontinuance has been filed). Where, however, there are no complex issues of fact, and the Court is able to form a clear view of the merits of the case without a trial, a costs order may nonetheless be made against a party: see the cases cited in Ann Street Mezzanine Pty Ltd v KPMG [2011] FCA 453 at [24]-[26] per Kenny J.
Costs in migration proceedings in this Court
Costs in migration proceedings in this Court are fixed by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), but where circumstances make it justifiable or reasonable for costs to be awarded in an amount greater or lesser than the fixed amount, the Court may do so in the exercise of its discretion under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.21.2 of the FCC Rules. The circumstances need not be exceptional, but rather such as to justifiably or reasonably warrant the setting of costs in an increased or decreased amount: Bunnag v Minister for Immigration & Anor (No.2) [2008] FMCA 430 at [9]-[18] per Lucev FM (“Bunnag (No.2)”) (and the cases there cited); SZQOG v Minister for Immigration & Anor (No.2) [2013] FCCA 689 at [9] per Judge Lucev.
Applicants’ case
The applicants filed no affidavits or submission in relation to costs.
The Minister’s Costs’ Submissions were as follows:
a)the applicants had the right to pursue the Amended Judicial Review Application despite the applicants and the Australian Born Child having applied for, and ultimately been granted, the 457 Visas. Therefore:
i)the Minister had the right to defend this proceeding; and
ii)the Department should not be criticised for not giving notice to the Minister of the application for or grant of the 457 Visas to the applicants;
b)the Minister was obliged to comply with the orders made by the Court on 13 November 2013. The Minister did so and Counsel for the Minister was ready to argue the Amended Judicial Review Application on 26 May 2014. Costs were thereby incurred;
c)the grounds of review pleaded in the Amended Judicial Review Application were bald assertions unsupported by any kind of particulars, detail or explanation. None of those grounds disclosed an error by the Tribunal capable of review by this Court: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [18]-[19] per Emmett FM (see too: WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev, from which an appeal by the applicant, WZATH, was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969);
d)the grounds of review pleaded in the Amended Judicial Review Application lacked merit and would in any event have been dismissed for the reasons set out in the Minister’s Hearing Submissions;
e)it would have been improper for the Department to attempt to dissuade the applicants from pursuing the Judicial Review Application or Amended Judicial Review Application. Even if the Department had done so, and the applicants filed a notice of discontinuance, the applicants would have been obliged to pay the Minister’s costs up to that point unless the Court otherwise ordered: see r.44.15(2) of FCC Rules;
f)the applicants were assisted by a registered migration agent up to the Tribunal Decision. The grounds of review pleaded in the Amended Judicial Review Application were, nonetheless, obviously drafted by someone with a degree of legal knowledge. If the application for and the grant of the 457 Visas were to form the basis of a submission resisting costs, then those assisting the applicants should have made sure the Minister’s solicitors were advised, in a timely fashion, that the applicants and the Australian Born Child had applied for and been granted the 457 Visas. Lack of legal knowledge is not a privilege;
g)aside from the Amended Judicial Review Application, the applicants did not file any material between the date of the Registrar’s orders on 13 November 2013 and the hearing date of 26 May 2014 fixed by the Registrar’s orders. Being a self-represented litigant does not excuse non-compliance with Court orders; and
h)there is no reason in this case why the usual rule should not be applied: Manatiy v Minister for Immigration & Multicultural Affairs (No.2) [2007] FCA 267 at [3]-[5] per Finn J (“Manatiy (No.2)”).
Consideration
Costs usually follow the event, with the unsuccessful party paying the successful party’s costs: Plaintiff M76/2013 at [241] per Kiefel and Keane JJ; Manatiy (No.2) at [3]-[5] per Finn J; and that rule generally applies to migration proceedings in this Court, notwithstanding the existence of an event-based fixed costs schedule, with fixed costs capable of variation in the exercise of the Court’s discretion under s.79 of the FCCA Act: FCC Rules, r.44.15(1) and (2); Bunnag (No.2); WZAQP for Minister for Immigration & Anor [2012] FMCA 187 at [4] per Lucev FM.
The applicants were cognisant of what was occurring with both this application and their 457 Visas application. As the applicants, they bore the onus to take such steps as were necessary to bring these proceedings to an end once their 457 Visas had been granted on 7 March 2014, that is, more than two and a half months before the hearing listed for 26 May 2014, which hearing had been listed on 13 November 2013 as a consequence of the Registrar’s orders of that date.
The applicants might have sought to get the Minister to consent to an order dismissing the application. Such an order is not unusual in this Court, and consent is given in a variety of circumstances. The applicants might also have sought a consent order as to costs – with no costs or with costs reduced, bearing in mind that had an order for dismissal by consent been sought before the Minister’s Hearing Submissions were filed, and without the need for a hearing, the Minister’s costs would have been very significantly reduced. But the applicants took no steps in these regards.
The applicants might also have sought to discontinue the proceedings, and could have done so pursuant to rr.13.01 and 13.02 of the FCC Rules. The effect of r.13.01 of the FCC Rules is to allow a party to discontinue without leave more than 14 days before the day fixed for the final hearing of an application, or with the leave of the Court or a Registrar, at a later time, with r.13.02(1) providing that where a party discontinues an application the other party in the proceedings may apply for costs. Generally speaking, a notice of discontinuance will be acceded to by a court, although a court’s discretion to grant leave is unfettered and not automatic: Bunbury Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174. Leave to file a notice of discontinuance would generally be acceded to where an applicant does not wish to proceed, it not being desirable that an applicant should be compelled to litigate against the applicant’s will, as was observed in Trade Practices Commission v APM Investments Pty Ltd (No.2) (1983) 74 FLR 276; [1984] ATPR 40-434 where Woodward J cited earlier observations in the United Kingdom in Covell Matthews & Partners v French Wools Ltd [1977] 2 All ER 591; [1977] 1 WLR 876. And a notice of discontinuance being filed in these circumstances would generally be acceded to where there is no injustice to a defendant.
Discontinuance either with leave (if the discontinuance application was brought less than 14 days before the scheduled hearing on 26 May 2014) or without leave would have resulted in a significant reduction in the costs which the Court might award on the fixed event scale: see Division 1 of Part 3 of Schedule 1 of the FCC Rules and WZAUT v Minister for Immigration [2015] FCCA 418 at [33] per Judge Lucev.
The consequent failure of the applicants to take any steps to seek a consent order to dismiss the application, or to discontinue the application, meant that the Minister’s Hearing Submissions were filed, and Counsel for the Minister attended at the time set down for hearing on 26 May 2014. That the applicants intended to proceed at hearing might have been inferred from their filing the Amended Judicial Review Application on 24 February 2014.
The Court also notes that the applicants filed no hearing submissions. From this it might be inferred that at least as early as 10 May 2014 the applicants knew that they were not going to argue their case before the Court. The failure of applicants to file hearing submissions, and their subsequent attendance at hearing to put oral submissions, the opportunity to do so not usually being denied by this Court, is not an unusual occurrence, and so it could not be said that the Minister was on some form of constructive notice of an intention by the applicants not to argue their case as a consequence of their failing to file hearing submissions.
If it be true that “going to law is a great deal like going to war”: Sir David Napley, The Technique of Persuasion (4th Edition) (London: Sweet & Maxwell, 1991) page 74, then the Minister’s Counsel was armed, loaded and ready to fire at the 26 May 2014 hearing. But it was not necessary for the Minister to fire any shots at hearing as the applicants sought to withdraw from the field as a consequence of the earlier grant of the 457 Visas on 7 March 2014. The Court permitted the applicants to do so, dismissing the application, subject to submissions on costs.
It is plain that the failure of the applicants to take any earlier steps at all to withdraw meant that the Minister had no opportunity to minimise his costs of the application, and in the Court’s view it is fair, and in the interests of the proper administration of justice, that the Minister should be paid his costs.
The fact that the applicants were effectively self-represented at the hearing, the first applicant appearing, and by leave appearing for the other applicants, does not reduce the liability of the applicants to pay costs as the unsuccessful party in these proceedings. Indeed, having filed the Amended Judicial Review Application on 24 February 2014, and less than two weeks later on 7 March 2014 being granted 457 Visas, courtesy and common sense alone would indicate that the applicants should have advised the Minister that they were not proceeding with this application. Even more so, when on 20 May 2014 the Minister’s Hearing Submissions were filed and served. Even at that late stage some costs, in particular in relation to Counsel and final preparation for hearing, might have been saved had the applicants, at the very least, telephoned the Minister’s solicitors and advised that they did not intend to proceed at the hearing of the application on 26 May 2014. But that was not done, and the Minister’s Counsel and solicitors did not become aware that the applicants did not intend to proceed until they were in the courtroom shortly before the scheduled time for hearing. It is plain that the applicants’ failure to indicate that they were not proceeding with the application, or the hearing of the application, caused the Minister to incur costs unnecessarily.
It is unnecessary to deal with the merits of the substantive application, but for the sake of completeness, the Court observes that, for the reasons set out in the Minister’s Hearing Submissions, the Amended Judicial Review Application would not have succeeded, and had the Amended Judicial Review Application been heard, the Minister would have been entitled to costs on the fixed event scale accordingly.
In all of the above circumstances, it is evident that the Minister ought to be paid costs by the applicants. The issue then becomes for what and in what quantum. Given the considerations and conclusions set out above the Minister ought to be paid the costs of the Amended Judicial Review Application as if it had gone to hearing on 26 May 2014. Those costs are $6825: FCC Rules, Schedule 1, Part 3, Division 1, Item 3. The Minister, however, also seeks the costs of the hearing on the papers of the costs application.
The fixed event scale in Part 3 of Schedule 1 of the FCC Rules for costs in relation to migration proceedings deals only with costs for migration proceedings that have been concluded: FCC Rules, Schedule 1, Part 3, Division 1, or migration proceedings that have been discontinued: FCC Rules, Schedule 1, Part 3, Division 2. There is no separate sum for an interim or summary hearing as a discrete event, as there is for general federal law (other than migration) and family law proceedings in FCC Rules, Schedule 1, Part 1, Item 3, or for the final hearing costs for the attendance of a solicitor at hearing to take judgment and explain orders, as there is for general federal law (other than migration) and family law proceedings: FCC Rules, Schedule 1, Part 1, Item 9.
The fixed quantum of costs for an interim or summary hearing as a discrete event is $1706 plus a daily hearing fee. The daily hearing fee is clearly not applicable in these circumstances where the hearing was on the papers. In the Court’s view the separate costs hearing on the papers can be viewed as the equivalent of an interim or summary hearing as a discrete event, and in those circumstances, the Court considers that the sum set for such an event in relation to general federal law proceedings (without the daily hearing fee), that is $1706, is appropriate.
Conclusions and orders
The Court has concluded that the applicants should be ordered to pay the Minister’s costs of the proceeding, including the costs of making the Minister’s Costs Submissions. Those costs are $6825 for the hearing on 26 May 2014, which was a proceeding concluded at final hearing, subject to the issue of costs, and $1706 for the separate hearing on the papers of costs. That is a total of $8531. The Court will order that the applicants pay the Minister’s costs in the sum of $8531 by 7 October 2015.
By reason of the Tribunals Amalgamation Act 2015 (Cth), s.3, Schedule 2 the name of the Tribunal must be amended to “Administrative Appeals Tribunal”. There will be an order accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 7 September 2015
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