SZEQH v Minister for Immigration and Citizenship (No 2)

[2008] FCA 1736

FEDERAL COURT OF AUSTRALIA

SZEQH v Minister for Immigration and Citizenship (No 2) [2008] FCA 1736

COSTS – awarding costs where a matter of public importance is raised – parties should bear their own costs in relation to the litigation of such a matter

Migration Act 1958 (Cth) s 427(6)(b)

SZEQH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1943 of 2007

DOWSETT J
19 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1943 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEQH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	19 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellant pay the first respondent’s costs of and incidental to these proceedings up to and including the hearing on 21 February 2008.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1943 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEQH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	19 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings have had an unusual history.  On 2 April 2004 the appellant applied for a protection visa.  The application was unsuccessful and, on 7 May 2004, he applied to the second respondent (“the Tribunal”) for review of that decision.  On 28 September 2004 the Tribunal affirmed the decision.  On 14 March 2006 this Court ordered that the Tribunal’s decision be set aside and that the matter be remitted to it for further consideration.  On 6 July 2006 the Tribunal published its decision, again affirming the original decision.  The appellant applied to the Federal Magistrates Court for review of that decision.  He was unsuccessful and then appealed to this Court.  The matter came before me on 21 February 2008.  The appellant appeared in person, advancing numerous grounds of appeal.  On that day I indicated that, subject to one matter, his appeal should be dismissed. 

2. That matter arose out of the fact that the appellant had, prior to the Tribunal’s first decision, asserted that he wished to cross-examine a witness upon whose evidence the Tribunal relied in reaching that decision. The Tribunal declined to allow him to cross-examine the witness on the ground that he had no right to do so by virtue of s 427(6)(b) of the Migration Act 1958 (Cth) (the “Act”). The Tribunal also relied on that evidence in reaching its second decision, again noting that the appellant had previously sought to cross-examine the witness and again pointing out that he had no right to do so. I was concerned that whatever the appellant’s rights, the Tribunal had a discretion to allow cross-examination which it appeared not to have exercised on either occasion. I considered that it was in the public interest that the appellant have advice on that question. I therefore referred the matter to the Registrar pursuant to O 80 r 4. The matter was eventually argued at length, limited to the cross-examination question. The Court received great assistance from Mr Jones who had advised the appellant pursuant to my reference and appeared pro bono for him. Mr Knackstredt, who appeared for the first respondent (the “Minister”) also offered substantial assistance.

3. I am now considering the question of costs.  The Minister asserts that as the successful party, he should have his costs for the whole of the proceedings.  The appellant naturally resists such an order.  Not infrequently in public law matters, an unsuccessful litigant seeks to resist an order for costs on the ground that his or her case has raised a matter of substantial public importance, and that he or she should not have to pay costs incidental to the unsuccessful litigation of such matter.  In my view such an argument is generally misconceived.  It is not for an individual litigant to determine that litigation should be conducted at public expense simply because it is important to him or her, even if it is arguable that there is a broader public interest in it. 

4. However the present case is in a different category.  So-called “pro bono” work is done “pro bono publico”, that is “for the public good”.  In referring to the matter to the Registrar I, as a member of the Court, decided that it was for the public good that the matter be investigated.  Counsel was asked to assist, again for the public good, and did so on that basis.  In those circumstances, the Minister should accept that ventilation of the issue was for the public good and facilitate such ventilation by meeting his own costs in connection with the relevant part of the proceedings.  The public interest has, in this case, been advanced in two ways.  Firstly, a litigant with an arguable case has had the benefit of its being properly argued.  Secondly, the Tribunal is now aware that it has the relevant discretion.

5. In the circumstances, I order that the appellant pay the first respondent’s costs of and incidental to these proceedings, up to and including the hearing on 21 February 2008, and that there otherwise be no order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        19 November 2008

Counsel for the Appellant:	Mr B P Jones (Pro Bono)
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent did not appear

Date of Hearing:	2 October 2008
Date of Judgment:	19 November 2008