FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152
Citation: Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 Appeal from: Khadgi v Minister for Immigration [2010] FMCA 381 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v PADMA KHADGI and MIGRATION REVIEW TRIBUNAL File number: NSD 782 of 2010 Judges: STONE, FOSTER AND NICHOLAS JJ Date of judgment: 17 December 2010 Catchwords: PRACTICE AND PROCEDURE – costs – discretion to issue to an unsuccessful respondent on an appeal a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) – discussion of principles upon which such discretion ought to be exercised Legislation: Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)
Migration Act 1958 (Cth) s 109(1)(c)
Migration Regulations 1994 (Cth) reg 2.41Cases cited: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 related
Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 appliedDate of hearing: 3 December 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Appellant: Mr SB Lloyd SC, Ms LA Clegg Solicitor for the Appellant: Sparke Helmore Counsel for the First Respondent: Mr PD Reynolds Solicitor for the First Respondent: MAS Law Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 782 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: PADMA KHADGI
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
STONE, FOSTER AND NICHOLAS JJ
DATE OF ORDER:
17 DECEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The first respondent be granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the first respondent in respect of the costs incurred by her in relation to the appeal and in respect of the costs incurred by the Minister in relation to the appeal which have been required by the Court to be paid by the first respondent by Order 4 made on 3 December 2010.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 782 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: PADMA KHADGI
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
STONE, FOSTER AND NICHOLAS JJ
DATE:
17 DECEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
This Court allowed the Minister’s appeal on 3 December 2010: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145. The orders made by the Court on that day included an order in the following terms:
4.The first respondent pay the costs of the appellant both of the appeal in this Court and of the FMC proceeding.
On 3 December 2010, immediately after we delivered judgment in this appeal, the legal representative of the first respondent (Ms Khadgi) applied to the Court for an order granting to Ms Khadgi a costs certificate in respect of the appeal pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (the Costs Act).
Section 6 of that Act is in the following terms:
6Costs certificates for respondents—Federal appeals
(1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2)Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney General to authorize a payment under this Act to the respondent in respect of:
(a)the costs incurred by the respondent in relation to the appeal; and
(b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.
The appeal was a Federal appeal and the Minister succeeded on a question of law. The Federal Magistrate adopted an approach to the construction of s 109(1)(c) of the Migration Act 1958 (Cth) (the Migration Act) and to the prescribed circumstances specified in reg 2.41 of the Migration Regulations 1994 (Cth) (the Migration Regulations) which we rejected as erroneous. Section 6(1) of the Costs Act is therefore engaged.
In Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the Full Court held that the discretion conferred by s 6(1) of the Costs Act was a broad one. In that case (at [3]), the Court held that the result achieved by the Minister had implications well beyond the outcome of the particular case. The Full Court took the view that, given that there were no matters disentitling the respondent from the issue of a costs certificate pursuant to the Costs Act, the wider relevance of the case for the Minister was apt to make the grant of a certificate to the respondent appropriate. In addition, the Full Court held that such a conclusion was particularly appropriate where the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visas.
In the present case, as was the case in SZNVW (No 3), the Minister has achieved a result which has implications for other cases, both in terms of the correct approach to administrative decision-making generally and in terms of the true construction of important provisions of the Migration Act and the Migration Regulations. Furthermore, we do not think that there are any matters disentitling Ms Khadgi from the issue of such a certificate.
We therefore propose to grant an appropriate certificate to the first respondent pursuant to s 6(1) of the Costs Act.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Foster and Nicholas. Associate:
Dated: 17 December 2010
- AGLC
- Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152
- Case
- [2010] FCAFC 152
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide were whether the Federal Magistrate's approach to interpreting the relevant sections of the Migration Act and the Migration Regulations was correct, and if not, whether the respondent should be granted a costs certificate under section 6(1) of the Federal Proceedings (Costs) Act 1981. The court had to determine whether the Minister's success on a question of law in the appeal warranted the grant of a costs certificate to the respondent despite her unsuccessful outcome.
In reaching its decision, the court referred to the principles established in Minister for Immigration and Citizenship v SZNVW (No 3). It held that the Minister had achieved a result that had broader implications for the correct approach to administrative decision-making and the interpretation of important provisions of the Migration Act and the Migration Regulations. The court further noted that there were no matters disentitling Ms Khadgi from the issue of a costs certificate. Consequently, the court exercised its discretion to grant a certificate under section 6(1) of the Federal Proceedings (Costs) Act 1981, allowing the respondent to be compensated for her costs in the appeal, as well as the costs incurred by the Minister that had been ordered to be paid by the respondent.
The court ordered that the first respondent, Ms Khadgi, be granted a certificate pursuant to section 6(1) of the Federal Proceedings (Costs) Act 1981. This certificate authorised the Attorney-General to make a payment to Ms Khadgi for the costs she incurred in relation to the appeal, as well as the costs incurred by the Minister in the appeal that had been ordered to be paid by Ms Khadgi.
Orders
Orders of the court
The first respondent be granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the first respondent in respect of the costs incurred by her in relation to the appeal and in respect of the costs incurred by the Minister in relation to the appeal which have been required by the Court to be paid by the first respondent by Order 4 made on 3 December 2010.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The appeal was a Federal appeal and the Minister succeeded on a question of law. The Federal Magistrate adopted an approach to the construction of s 109(1)(c) of the Migration Act 1958 (Cth) (the Migration Act) and to the prescribed circumstances specified in reg 2.41 of the Migration Regulations 1994 (Cth) (the Migration Regulations) which we rejected as erroneous. Section 6(1) of the Costs Act is therefore engaged. In Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the Full Court held that the discretion conferred by s 6(1) of the Costs Act was a broad one. In that case (at [3]), the Court held that the result achieved by the Minister had implications well beyond the outcome of the particular case. The Full Court took the view that, given that there were no matters disentitling the respondent from the issue of a costs certificate pursuant to the Costs Act, the wider relevance of the case for the Minister was apt to make the grant of a certificate to the respondent appropriate. In addition, the Full Court held that such a conclusion was particularly appropriate where the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visas. In the present case, as was the case in SZNVW (No 3), the Minister has achieved a result which has implications for other cases, both in terms of the correct approach to administrative decision-making generally and in terms of the true construction of important provisions of the Migration Act and the Migration Regulations. Furthermore, we do not think that there are any matters disentitling Ms Khadgi from the issue of such a certificate. We therefore propose to grant an appropriate certificate to the first respondent pursuant to s 6(1) of the Costs Act.