Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW

[2005] FCAFC 227

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 227

COSTS – Minister for Immigration and Multicultural and Indigenous Affairs unsuccessful at first instance but successful in the appeal – costs awarded to the unsuccessful visa applicant at first instance – where Federal Magistrate below had followed an earlier Federal Magistrates Court judgment which could have been, but was not, the subject of an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs – costs order below set aside

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SZAYW
NSD 1878 OF 2004

MOORE, KIEFEL AND WEINBERG JJ
8 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1878 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	SZAYW RESPONDENT
JUDGES:	MOORE, KIEFEL & WEINBERG JJ
DATE OF ORDER:	8 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Order 4 of the Federal Magistrates Court made on 25 November 2004 in proceeding SYG1375 of 2003 be set aside.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1878 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	SZAYW RESPONDENT

JUDGES:	MOORE, KIEFEL & WEINBERG JJ
DATE:	8 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. In this appeal, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") succeeded in having the judgment of the Federal Magistrate set aside (Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154). The respondent to the appeal had been unsuccessful before the Refugee Review Tribunal ("the Tribunal") in a review of a decision to refuse him a protection visa. In the proceedings before the Federal Magistrate, orders were made issuing constitutional writs quashing the decision of the Tribunal of 13 July 1999 and requiring the Minister to cause the Tribunal to reconsider the respondent's protection visa claims according to law. A further order was made requiring the Minister to pay the respondent's costs (fixed in the sum of $5,000) of the proceedings.

2. While this Full Court (by a majority) set aside the orders of the Federal Magistrate concerning constitutional writs and substituted an order that the application be dismissed, it did not set aside the Federal Magistrate's costs order.  No order as to costs was made in the appeal because the Federal Magistrate followed an earlier judgment of his (SZAFE v Minister for Immigration [2003] FMCA 410), a judgment which could have been, but was not, the subject of an appeal by the Minister. As to the costs below, we ordered any party wishing to make submissions concerning the costs order of the Federal Magistrate to do so in writing within 14 days. Submissions were received from the Minister within that time. The Minister submitted she should have her costs of the proceedings before the Federal Magistrate. The submission ultimately made by the respondent (after time was extended) was that because the respondent was going to seek special leave to appeal to the High Court, it was more appropriate to leave the costs issue for final determination in that Court. The respondent's application for special leave to appeal was filed on 9 September 2005.

3. The Minister submitted that the usual rule is that costs should follow the event. The wide discretion to order costs cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219 and pre-litigation conduct should be given limited weight: Cummings v Lewis (unreported, Federal Court of Australia, Wilcox J, 29 May 1992; [1992] FCA 334). It was submitted that the decision not to appeal the earlier judgment of the Federal Magistrate (SZAFE v Minister for Immigration), concerning the contents of the duty under s 429 of the Migration Act 1958 (Cth) ("the Act") was unconnected with the litigation and no submission was (nor has been since) made by the respondent's solicitor that the usual order "ought not be followed". A submission was also made that had the Minister appealed against the earlier judgment, it did not follow that the interpretation of s 429 would have been addressed. That was because the successful applicant (the female applicant married to the male applicant) had succeeded in establishing jurisdictional error because there had been, in the Federal Magistrate's opinion, both a denial of procedural fairness as well and as a breach of s 429.

4. The Minister is a litigant in proceedings under the Act in this Court, somewhere in Australia, probably most days this Court is sitting. The number of such cases is great as is the number of such cases in the Federal Magistrates Court. The ingenuity of lawyers or others, representing litigants who have failed to obtain a visa, to construct novel, though not necessarily compelling, arguments about the processes and procedures under the Act appears almost limitless. Moreover, the arguments are constructed against a background where decision makers, and in particular the members of the Tribunal, tend to (though there are exceptions) adopt common or similar practices in relation to their decision-making.

5. From time to time, novel arguments of substance, advanced on behalf of applicants who have been refused a visa, succeed.  Experience would suggest that when that occurs, other litigants quickly embrace the successful point, whether the litigants are represented or unrepresented.  The burden on the Minister in defending (as overwhelmingly, she is a respondent), proceedings maintained in this Court and the Federal Magistrates Court is doubtless great.  Similarly, the task of the Minister and those advising her, of keeping abreast of judgments in this Court and the Federal Magistrates Court, must be considerable.  The burden of this litigation on the court system also is enormous.

6. Plainly, the Minister is under no obligation to challenge or test any judgment in which a novel point succeeds at first instance. However, the practical consequences of the Minister not doing so, can be significant. Within the Federal Magistrates Court, the judges of that Court will, in all probability, follow the judgment in which the novel point has succeeded. If a novel point succeeds in this Court, the judges of this Court will, in all probability, follow the judgment in which the novel point has succeeded. There is a public interest in settling quickly at an intermediate appellate level novel points on which litigants aggrieved by visa decisions under the Act, have succeeded if the Minister takes issue with the point on which the success is founded. This is subject, of course, to any decision of the High Court to grant special leave, if special leave has been sought.

7. In the present case, the failure of the Minister to appeal the judgment in SZAFE v Minister for Immigration had the result that the point successfully taken in this matter was an available one on which the present respondent was likely to succeed.  It is true that the successful applicant in SZAFE v Minister for Immigration established jurisdictional error not only because the Federal Magistrate concluded there had been a breach of s 429 but also because his Honour concluded there had been a denial of procedural fairness. It must be accepted that any consideration of whether to appeal may well have been influenced by the conclusion that there had been a denial of procedural fairness. Perhaps the view was taken that the Federal Magistrate's conclusion on this point was correct.

8. However, because there was no appeal from that judgment (in which the effect of s 429 could have been raised and that issue, in all likelihood, addressed by the appellate Court), the respondent in the present appeal, as applicant below, was entitled to proceed on the basis that SZAFE v Minister for Immigration correctly stated the law.  In these circumstances, the preferable course with regard to costs below is that there be no order as to costs.  This result is not intended to imply that the Minister should be penalised in any way for her failure to appeal against SZAFE v Minister for Immigration.  Rather, it involves a recognition that if novel points disputed by the Minister are not tested promptly, other applicants (who are aggrieved visa applicants) will take the novel point with the attendant consequences on the court system as a whole.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             8 November 2005

Solicitor for the Appellant:	Clayton Utz
Solicitor for the Respondent:	M Jones
Date of Final Submissions:	9 September 2005
Date of Judgment:	8 November 2005