Minister for Immigration v Kang and Anor (No.2)

[2012] FMCA 918

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v KANG & ANOR (No.2) [2012] FMCA 918

MIGRATION – Costs – Minister entitled costs after successful judicial review of Migration Review Tribunal – visa holder seeks costs after unsuccessful opposition to review – successful party prima facie entitled to costs.

Federal Magistrates Court Rules 2001, r.44.15(1)
Judiciary Act 1903, s.78B

R v Australian Broadcasting Tribunal and Ors; Ex parte Hardman and Ors (1980) 29 ALR 289
Re Minister for Immigration and Ethnic Affairs & Anor; Ex parte Lai Qin (1997) 143 ALR 1

Applicant: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent: JAGMEET SINGH KANG

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1796 of 2011

Judgment of: Turner FM

Hearing date: 24 September 2012

Date of Last Submission: 24 September 2012

Delivered at: Melbourne

Delivered on: 9 October 2012

REPRESENTATION

Solicitors for the Applicant: Clayton Utz

Solicitors for the First Respondent: G & S Law Group

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The first respondent pay the applicant’s costs fixed in the amount of $7,871.00.

2. The first respondent’s application for costs is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1796 of 2011

MINISTER FOR IMMIGRATION & CITIZENSHIP

Applicant

And

JAGMEET SINGH KANG

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the Minister sought judicial review of the decision of the Migration Review Tribunal (the “MRT”), dated 24 November 2011. The first respondent/visa holder appeared and opposed the Minister’s application.

2. By judgment delivered on 24 August 2012, the application by the Minister was successful; whereas the opposition by the visa holder was wholly unsuccessful.

3. The visa holder filed a Notice of Constitutional matter in the judicial review proceedings, but later withdrew it.

4. The Minister seeks an order for scale costs against the visa holder of $6,471.00, plus $1,400.00 for the cost of dealing with the Notice of Constitutional matter filed by the visa holder pursuant to s.78B of the Judiciary Act 1903 (the “Act”).

5. The Court notes that an order for costs according to the amounts specified in Item 1 of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (the “Rules”) is discretionary by virtue of r.44.15(1). The Court notes also that Part 1 of Schedule 1 to the Rules provides for an order for the cost of disbursements that have been “reasonably incurred”.

   Rule 21.10 provides:

   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.

   Note For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Magistrates Court (Bankruptcy) Rules 2006.

6. Mr Georges, who appeared for the visa holder, made an application for costs against the Minister. When making that application, Mr Georges sought $5,471.00, after allowing $1,000.00 for the Minister dealing with the visa holder’s s.78B Notice and application. The Minister seeks an order that the visa holder pay Counsel’s costs incurred as a result of the s.78B Notice.

7. The Court finds that counsel fees of $1,400.00 were “reasonably incurred” by the Minister (Affidavit of Natasha Bosnjak filed

   
   

   13 September 2012 at [27] and Exhibit “NB-19”).

8. The Court’s power to award costs is set out in the Rules.

The visa holder’s written submissions

1. The visa holder submits that:

   “Costs cannot be awarded against a party which did not initiate the proceedings, against whom no relief is sought and is not the party which made the alleged violation of law entitling the initiating party (in this case the Minister) to seek relief”.

2. However, the Court notes the discretion under r.44.15(1) to award costs against an unsuccessful party.

3. Mr Georges submits that the only reason that he needed to appear was that the MRT had erred. However, the Court finds that the visa holder was not required to appear, but after being invited to withdraw, chose to appear “… to fight the matter in Court” (Affidavit of Natasha Bosnjak (supra) at [15]). Costs were incurred by the visa holder as a result of his choice. Mr Georges submitted that the visa holder “wasn’t a necessary party to the proceedings” (Transcript “T” 24/9/2012 p.6, l.20). Mr Georges submitted that the visa holder was “forced to be in” (Ibid p.7, l.39) the position of appearing. The Court rejects that submission.

4. Mr Georges submits that:

   “…the party that should pay the costs is the unsuccessful party and… that was the reason for the case in the first place”. (Ibid p.7, l.6)

   Mr Georges submits that “the tribunal was the unsuccessful party…” (Ibid p.7, l.8). The Court finds that the MRT submitted to the jurisdiction of the Court except as to costs. The unsuccessful party was the visa holder.

5. Mr Georges submits that as the Minister represented the MRT, the Minister was the unsuccessful party. The Court rejects that submissions, the Minister was the successfully party.

The MRT’s written submission

1. The MRT submits that it was not a party to the action, and “played no part in the ensuing proceedings”. That is so; the MRT submitted “to any order of the Court, save as to costs” (Notice of Appearance filed 4 January 2012).

2. The Court finds that to have been the appropriate course having regard to the principle in R v Australian Broadcasting Tribunal and Ors; Ex parte Hardman and Ors (1980) 29 ALR 289.

3. The MRT submits that:

   “The contest in this proceeding has been between the Applicant (the Minister) and the First Respondent (the visa holder)…”.

   The Court accepts that submission and finds that the Minister has been successful, and the visa holder wholly unsuccessful.

4. The Court applies the principle in Re Minister for Immigration and Ethnic Affairs & Anor; Ex parte Lai Qin (1997) 143 ALR 1 at p.3 that:

   “A successful party is prima facie entitled to a costs order”.

5. The Minister was successful in opposing the submissions by the visa holder that the decision of the MRT should stand. The visa holder was wholly unsuccessful in his case.

6. Rule 44.15(1) provides the discretion to award costs that an unsuccessful party must pay the successful party.

7. The Court orders that the visa holder pay the Minister’s costs of $7,871.00.

8. The Court orders that the visa holder’s application for costs is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  9 October 2012