Minister for Immigration and Multicultural Affairs v Tedella (No 2)

[2001] FCA 930

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v Tedella (No 2)

[2001] FCA 930

COSTS – application for costs certificate – where appeal succeeded on a question of law – whether appropriate in all the circumstances to grant costs certificate.

Federal Proceedings (Costs) Act 1981 (Cth): s 6(1)

Bullock v Federated Furnishing Trades Society of Australasia (No 2) (1985) 58 ALR 373 – referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SOLOMON KAHSAY TEDELLA
V 851 of 2000

MOORE, TAMBERLIN & GOLDBERG JJ
31 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 851 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	SOLOMON KAHSAY TEDELLA Respondent
JUDGES:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE OF ORDER:	31 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.A certificate be granted to the respondent pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 851 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	SOLOMON KAHSAY TEDELLA Respondent

JUDGES:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE:	31 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. On 4 July 2001, the Court published its reasons for judgment in this appeal and ordered that the appeal be allowed, that the order of the Court made on 11 October 2000 be set aside and, in lieu thereof, it be ordered that the respondent’s amended application for an order of review be dismissed and that the respondent pay the appellant’s costs of and incidental to those aspects of the application determined by the reasons for decision given on 11 October 2000.  The Court also ordered that the respondent pay the appellant’s costs of and incidental to the appeal. 

2. We reserved for further consideration any application to be made within seven days for the grant of a certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).

3. The respondent subsequently applied for a costs certificate under s 6 of the Act which provides:

   “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.” 

4. The Act does not prescribe any conditions to be satisfied before such a certificate is granted.  Once it is established that the appeal has succeeded “on a question of law”, a court’s jurisdiction is unfettered:  Bullock v Federated Furnishing Trades Society of Australasia (No 2) (1985) 58 ALR 373 at 374. As was pointed out in Bullock, there is no presumption in favour of the grant of a certificate once it is established that the appeal has succeeded on a question of law.  Nevertheless, it is necessary for the unsuccessful respondent to satisfy the Court “that it is appropriate in all the circumstances for a certificate to be granted”:  Bullock (supra) at 374.

5. The primary judge set aside the decision of the Refugee Review Tribunal (“the Tribunal”) on the ground that it had committed an error of law within s 476(1)(e) of the Migration Act 1958 (Cth) as it had failed to give proper, genuine and realistic consideration to the merits of the applicant’s case on the question of the genuineness of the documents in issue. His Honour found that it was undoubted that such a failure was a ground of review, relying upon Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368. Between the date of his Honour’s judgment and the hearing of the appeal on 16 May 2001, a Full Court allowed an appeal in Anthonypillai, holding that a failure to give proper, genuine and realistic consideration to the merits of the applicant’s case was not an available ground of review under Pt 8 of the Migration Act:  Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274. The High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 on 31 May 2001. The reasoning in Yusuf bore upon other aspects of the appeal. 

6. When the appeal came on for hearing, as we noted in our reasons for judgment, the respondent recognised the effect of Anthonypillai and was granted leave to amend the particulars of the grounds of his application to include a claim that the Tribunal failed to consider the application for review as required by ss 54, 65 and 414 of the Migration Act.  We rejected the submissions based on the ground that there had been a constructive failure by the Tribunal to exercise its jurisdiction and held that the primary judge had erred in concluding that the Tribunal had failed to determine the question before it on the merits.  We were satisfied that the Tribunal did not fail to consider the respondent’s case or the claims made by him. 

7. After the High Court handed down judgment in Yusuf (supra), the parties made further written submissions in the light of Yusuf and the respondent was granted leave to add further grounds to his application for an order of review that the Tribunal did not have jurisdiction to make the decision or, alternatively, the decision was not authorised by the Act. We rejected the submissions based on those grounds.

8. The appeal was bound to succeed on the question of law raised in the Notice of Appeal that the primary judge erred in holding that a failure by the Tribunal to give proper, genuine and realistic consideration to the merits of the respondent’s case constituted reviewable error within the meaning of s 476(1)(e) of the Migration Act, having regard to the Full Court decision in Anthonypillai. The respondent sought, but failed, to uphold the decision of the primary judge on other grounds. Nevertheless, the conclusion remains that the appeal succeeded on a question of law. Section 6 of the Act focuses on the fact of the reason why an appeal succeeds, rather than on the reason or reasons why the respondent to the appeal cannot uphold the decision of the Court from which the appeal is brought. We are satisfied that although the respondent did not succeed in upholding the decision of the primary judge on grounds unrelated to the grounds of appeal, the proper conclusion is that the appeal succeeded on a question of law.

9. In those circumstances, we consider that it is appropriate to grant the respondent a costs certificate in respect of the appeal pursuant to s 6(1) of the Act stating that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the respondent in respect of:

   (a)       the costs incurred by the respondent in relation to the appeal;

   (b)the costs incurred by the appellant in respect of the appeal that have been, or are required to be, paid by the respondent to the appellant pursuant to par 3 of the order of the Court made on 4 July 2001.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             31 July 2001

Counsel for the Applicant:	A L Cavanough QC and C G Fairfield
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	R M Niall
Solicitor for the Respondent:	Erskine Rodan & Associates
Date of filing of submissions:	11 July 2001
Date of Judgment:	31 July 2001