SZLIA v Minister for Immigration
[2008] FMCA 1029
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1029 |
| MIGRATION – Application for costs – application to discontinue an application for show cause – application by applicant and respondent for costs – discretion as to costs – costs on discontinuance – applicant to pay respondent’s costs. |
| Migration Act 1958 (Cth), ss.48B, 417, 412 Federal Magistrates Court Rules 2001, rr.21.02, 13.02, 44.15 Federal Magistrates Court 1999 (Cth), s.79 |
| MZXOT v Minister for Immigration and Citizenship [2008] HCA 28 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Yates Property Corp Pty Ltd v Boland (No 2) (1997) 147 ALR 685; [1997] FCA 760 Applicant A2 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 576 Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock [2003] FCA 684 Re Ruddock; Ex parte LX [2003] FCA 561 Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186 Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520; [2004] FCAFC 293 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683 Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 Kolotau v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1145 SZAAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 917 |
| Applicant: | SZLIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2833 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 July 2008 |
| Date of Last Submission: | 10 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Chambers |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Counsel for the Respondents: | Mr P S Braham |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Leave be granted to the applicant to file a notice of discontinuance in these proceedings.
There be no order as to costs in favour of the applicant.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2833 of 2007
| SZLIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application for leave to be granted to discontinue proceedings in relation to an application made on 13 September 2007 (and subsequently amended) under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 November 2003 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The following background, as derived from material filed in this matter and on the Court file, is relevant to understanding the issues now before the Court:
Date Event 20 November 2002 Application for protection visa. 3 December 2002 Application refused. 20 December 2002 Application for review. 12 November 2003 Refugee Review Tribunal. 4 December 2003 Notified to authorised recipient. 11 July 2007 Applicant detained at Villawood Detention Centre. August 2007
Applicant made a request to the Minister, seeking that the Minister exercise his discretion pursuant to s.48B. 2 September 2007
Applicant (personally) received notification of the Tribunal decision. 13 September 2007 Applicant filed application for order to show cause. 15 October 2007 Court Book filed. 17 October 2007 Matter listed for First Court Date. 24 October 2007 Applicant instructed solicitor. 31 October 2007 Amended application for an order to show cause with supporting affidavit filed. 9 & 10 April 2008 Further affidavit evidence and written submissions filed on behalf of the applicant. Mid to late April 2008
(17, 18, 21, 22 April)
Legal advisers of the respondent and applicant have conversations re whether proceedings should be adjourned pending the s.48B request. 16 April 2008 Matter listed for Directions. Further amended application filed in Court, affidavit of M McCrudden sworn on 10 April 2008 and affidavit of M McCrudden sworn on 9 April 2008 filed in Court. 18 April 2008 Affidavit of P Nandagopal filed. 22 April 2008 Hearing before the Court. Applicant’s submissions and respondent’s submissions filed in Court. 29 April 2008 Supplementary submissions were filed on behalf of the applicant. 30 April 2008 Respondent’s legal advisers made another attempt to seek an adjournment pending s.48B request. Applicant indicated they were considering an adjournment. 5 May 2008 Applicant’s legal advisers communicated to respondent that applicant had instructed them to apply for adjournment. 7 May 2008 Matter listed for Directions. Proceedings adjourned by consent. 10 July 2008 Matter listed for Directions. Affidavit of M McCrudden sworn 9 July 2008, affidavit of B O’Brien affirmed 10 July 2008, filed in Court. 11 June 2008 Applicant received notice that the Minister had exercised his discretion under s.48B.
Notice to Discontinue
The applicant seeks to discontinue these proceedings in circumstances where the Minister has exercised his discretion pursuant to s.48B of the Act to enable the applicant to make another application for a protection visa.
The first respondent does not oppose the granting of leave, and I cannot see any reason to refuse leave in relation to this matter, and I so grant leave.
Costs
In these circumstances both parties have sought orders for costs incurred in these proceedings. I have the benefit of oral submissions made in relation to the respective applications for costs from Ms J Chambers of Counsel who appeared for the applicant, and Mr P S Braham of Counsel who appeared for the first respondent.
Costs: The Applicant
The applicant seeks an order that the first respondent pay his costs in an agreed sum. In particular, he relies on the affidavit of Michael Devlin McCrudden sworn on 9 July 2008.
Costs: The Respondent
The Minister opposes the application for costs made by the applicant, and puts forward his own application that the applicant pay his costs in the proceedings. The Minister relies on the affidavit of Brendan O’Brien affirmed on 10 July 2008. (Mr Braham only read paragraphs 1 to 4, 7, 11, 15, 16, and 17 of that affidavit.)
Mr Braham also tendered a document produced on his call by the applicant’s representatives before the Court, being the “Standard Costs Disclosure” concerning the applicant and his legal representative.
The Applicant’s Submissions on Costs
For the applicant, Ms Chambers submitted that while neither party has been successful in the proceedings, the proceedings nonetheless have been resolved with an outcome with which the applicant “is satisfied”.
The applicant’s position is that in light of the Minister having exercised his power pursuant to s.48B of the Act to allow the applicant to make another application for a protection visa, the current proceedings were “entirely unnecessary”, and have been a “waste of time for the Court, and a waste of the Court’s resources”.
The applicant relies on the fact that the Minister had before him, since 7 August 2007, an “application” for the Minister to exercise his discretion, and that this discretion, while it was exercised in favour of the applicant, was not done so until 10 June 2008.
The applicant’s argument put before the Court was that there has been a 10-month delay in the Minister considering the issue of whether he would exercise his discretion pursuant to s.48B of the Act in circumstances where it was put that the applicant was in a “precarious position”. That is, that he was detained by the first respondent at the Villawood Immigration Detention Centre, was “entirely dependant upon charity”, and not in good health. The submission was that in all those circumstances it was not unreasonable of the applicant to have also pursued judicial review of the Tribunal decision, nor was it unreasonable that he agree to adjourning the proceedings indefinitely for the purpose of the Minister continuing to consider the “application” for the exercise of his discretion.
Ms Chambers submitted that this Court has full discretion to award costs in this matter, notwithstanding the situation that neither party “has effectively won the proceedings”, and that such a costs order could be made pursuant to r.21.02 of the Federal Magistrates Court Rules 2001 (“the Rules”).
In all, Ms Chambers’ submission was that there was evidence before the Court that showed that costs have been incurred, that she had taken the matter on a pro bono basis, and if the Court was minded to award Court costs to the applicant, a “discount” should apply by way of percentage to both counsel and solicitor costs.
In all the applicant relies on the 10-month lapse of time between the date of the request to the Minister and the disposition of that matter, and that the proceedings before the Court were commenced in a situation where the applicant had “no other option” but to seek relief from the Court to prevent his removal from Australia.
In essence, the submission was that had the Minister acted in a more timely fashion, the costs incurred by the applicant would not have been incurred. He now seeks costs in these proceedings in light of that delay.
The Respondent’s Submissions on Costs
In response, Mr Braham’s submission was that this Court should not take into account, for the purposes of considering the cost application before it now, the amount of time taken by the Minister to determine the s.48B request. His submission was that that matter stood outside the scope of the proceedings before the Court, and that the conduct of the Minister (noting, of course, that as at August 2007 there was a different occupant of the position, and that a Federal election intervened, and that a different person now occupies this position) has no connection with the proceedings before the Court.
Further in response to the applicant’s submission, the proceedings before the Court were necessary from the applicant’s position to prolong his stay in Australia such that his right to remain in Australia could ultimately be determined, and that that issue has still not been determined. That is, all that the Minister has done is to allow the applicant to make another application for a protection visa in circumstances where this avenue would not normally be available to persons in the applicant’s position. (That is, he had already applied for a protection visa previously.)
In relation to the applicant’s application for costs, Mr Braham submitted that he understood that this application was made in the context of s.79 of the Federal Magistrates Court Act 1999 (Cth) (“the Federal Magistrates Court Act”), in particular s.79(3):
“Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.”
The respondent also referred the Court to r.13.02(1) of the Rules:
“If a party discontinues an application, or part of an application, another party in the proceeding may apply for costs.”
Mr Braham submitted that the relevant rule makes no provision for the party who discontinued proceedings to recover costs. I understood Mr Braham’s submission to be that because the exercise of the Court’s discretion pursuant to s.79 is subject to the Rules, the Court had no discretion to grant the applicant’s request for costs in light of the applicant’s discontinuance of the proceedings.
On the issue of the “delay” in relation to the Minister’s exercise of his discretion pursuant to s.48B of the Act, Mr Braham submitted that it was not appropriate for the Court to take this matter into account.
First, because this matter was not related to the proceedings before the Court, and second, that it was the applicant’s choice to pursue two separate avenues to achieve his purpose of remaining in Australia. Further, that the commencement of the proceedings was made in circumstances where he must have known from the outset would prove futile if his request under s.48B was successful.
In relation to the nature of the proceedings commenced before the Court, Mr Braham submitted that to the extent that the applicant’s application, including amended applications, sought to reagitate before this Court the applicant’s entitlement to a primary decision on his protection visa application, such proceedings were futile before this Court. Further, that even during the course of these proceedings, including a hearing, the applicant had put forward no evidence of fraud, as alleged, on the part of his migration agent (as opposed to incompetence).
Even further, Mr Braham relied on the evidence of Mr O’Brien to submit that attempts were made on 17 April 2008 (before a hearing conducted by the Court) to adjourn proceedings before this Court to allow the Minister to consider whether he would exercise his discretion, and that the failure of the applicant to satisfactorily respond to this approach caused a further waste of time and money in circumstances where such time and money was spent on a matter that may not have ultimately need to be decided (given that the s.48B request might have been successful – as it turned out, it was).
Mr Braham submitted that in these circumstances it was the applicant’s conduct (not that of the respondent) which caused costs in this case to be thrown away and wasted, and that on that basis he should be made to pay such costs.
The respondent has sought a costs order in a number of alternatives:
1)The applicant pay the first respondent’s costs for the entire proceedings.
2)The applicant pay the first respondent’s costs from 17 April 2008 (the date on which the offer was made to adjourn the proceedings pending the outcome of the s.48B request).
3)The applicant pay all the costs of the proceeding from the moment at which the Court expressed some doubts about its jurisdiction to make the orders sought by the applicant.
The respondent did not seek a lump sum costs order, but sought that costs be assessed, in whichever of the alternatives above the Court applied.
Mr Braham also relied on the following argument.
Putting to one side the issue of the Court’s lack of jurisdiction to review a “primary decision” (see s.476 of the Act) (since confirmed in MZXOT v Minister for Immigration and Citizenship [2008] HCA 28 (“MZXOT”)), the remainder of the applicant’s case before the Court was that the Tribunal’s processes were vitiated by the fraud of the migration agent relying on SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35.
In this regard, Mr Braham submitted that there was no evidence of fraud put before the Court. At best the applicant’s evidence was that he dealt with his migration agent through a “friend”, which did not establish fraud on the part of the migration agent. Further, there was no evidence led to distinguish between fraud and mere inadvertence, negligence or incompetence. The applicant’s evidence in total was that he did not know about the application to the Tribunal, and did not sign any documents. It did not go any higher than that. It was not such as to permit the Court to draw an inference that it was due to the fraud of the agent rather than to inadvertence, carelessness or negligence which caused the events (relating to the Tribunal) which the applicant now complains to have occurred.
Further, with reference to the further amended application filed in Court on 16 April 2008, the orders sought by the applicant are as follows:
“1.Declaration that the protection visa application lodged on the applicant’s behalf on 25 November 2002 was not a valid visa application.
2.Order in the nature of a writ of certiorari to quash the decision of the first respondent’s delegate made on 3 December 2002.
3.Declaration that the application for review of the decision of the first respondent lodged with the second respondent on 20 December 2002 was not a valid application for review.
4.Order in the nature of a writ of certiorari to quash the decision of the second respondent made on 12 November 2003.
5.Declaration that the applicant is now entitled to make a valid visa application for a protection visa and that s.48A of the Act is no bar to the applicant doing so.
6.Alternatively, an order in the nature of a writ of mandamus to compel the second respondent to re-determine the review application according to law.
7.Further, an order in the nature of a writ of prohibition to prohibit any implementation of the decisions of the delegate of the first respondent or the second respondent.
8.An order that the respondents pay the applicant’s costs of and incidental to this application.”
Mr Braham submitted that orders 1, 2, 3, 4, and 5 all involved matters beyond the jurisdiction of this Court.
While order 6 was within jurisdiction, it also flowed from ground two in the further amended application which is in the following terms:
“2.Absence of a valid application for review
2.1Contrary to section 412(2) of the Act, the application for merits review of the Minister’s decision received by the Tribunal on 20 December 2002 (Review Application), was not made by the Applicant or by anyone acting in accordance with the Applicant’s instructions or authority.”
Mr Braham’s submission was that if this contention had been made out, the applicant was not entitled to any relief whatsoever beyond a declaration that the application for review was invalid. In which circumstance the order seeking the compulsion of the Tribunal to re-determine the review application could not be made. Given the passage of time, Mr Braham submitted this would have put the applicant in a “worse position” because he would now no longer have recourse to the Tribunal.
Further, given the bases of grounds three (third party fraud) and four (migration agent fraud and denial of opportunity to appear before the Tribunal pursuant to s.425 of the Act) in the further amended application (of 16 April 2008), if the applicant had succeeded in relation to ground two, that is, that there was an absence of a valid application for review, then whether the subsequent Tribunal decision was affected by fraud, or not, becomes irrelevant. Mr Braham submitted that as soon as the applicant succeeded in relation to ground two of his own application his “rights” would have vanished. He stressed that in the conduct of this matter so far a lot of time and energy had been spent on the issue of whether or not a valid application for review had been made. But ultimately this could not have been of assistance to the applicant because such a declaration from this Court would leave him in a situation where he would be out of time to now properly seek review of the delegate’s decision.
In the alternative, he submitted that if the applicant had succeeded on ground four in circumstances where he had not succeeded in relation to grounds two and three, then success in relation to ground four was dependent on the applicant demonstrating that the migration agent failed to inform him of the hearing before the Tribunal, and did so fraudulently. A situation which on the evidence before the Court he was never in a position to make out because the applicant’s evidence already before the Court was that he communicated with the agent through a “friend”. The friend was never called before the Court so that the Court was never in a position to make a finding that the migration agent acted fraudulently.
It was in this context that Mr Braham submitted that the proceedings were hopeless, and a further additional reason why the Court should make an order for costs in favour of the respondent.
Consideration
First, I note that the power conferred on this Court by s.79 of the Federal Magistrates Court Act provides an unfettered discretion in the Court to award costs in all proceedings before the Court, other than proceedings where some other Act provides that costs must not be awarded.
Second, I note that this power is in similar terms to ss.43(1) and (2) of the Federal Court Act of Australia 1976 (Cth).
While such a power is unfettered, it must of course be exercised judicially, and importantly, in the context of the relevant court rules (see in relation to the Federal Court Rules, and by analogy, applicable to this Court’s Rules: Yates Property Corp Pty Ltd v Boland (No 2) (1997) 147 ALR 685; [1997] FCA 760).
There are two parts of this Court’s Rules relevant to an application for costs upon discontinuation of proceedings.
Rule 13.02 of the Rules:
“(1)If the party discontinues an application, or part of an application, another party in the proceeding may apply for costs.”
Rule 44.15 of the Rules:
“(2) Unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application for an order to show cause is liable to pay a respondent’s costs in accordance with item 2 of Part 2 of Schedule 1.”
Mr Braham submitted that r.13.02 of the Rules makes no provision for a party discontinuing proceedings before this Court to apply for costs in the proceeding. If anything, this rule provides for “another party” (in this case the Minister), who has not discontinued the proceedings to apply for costs. Mr Braham submitted that to make an order for costs in favour of the applicant would be to give no force or meaning to the words: “another party in the proceeding”, as set out in this Rule. That, to the contrary, this rule supports the application for costs made by the Minister.
In this regard, however, I note also what was said by FM Driver in NAGY v Minister for Immigration [2002] FMCA 189 at [4] in a matter where a notice of discontinuance was filed at a “late stage” (see [3]) (noting of course that that case was decided prior to the introduction of r.44.15 to the Rules):
“4.Prima facie, in the circumstances of this matter, it would be appropriate to make an order for costs in favour of the Minister. Nevertheless, the position taken in this Court on costs is somewhat more liberal than that taken in some other courts. In the first place, in this Court, in contrast to the position in the Federal Court, there is no presumption that where an application is discontinued in advance of a hearing that the discontinuing party must pay the costs of the other party.”
Ultimately, in that case his Honour did award costs to the Minister in circumstances where the applicant, with the benefit of the opportunity of obtaining legal advice: “waited approximately two months after that time before he filed a notice of discontinuance” (at [10]).
The applicant’s argument in support of his application for costs is that the time that has elapsed between the making of his request for the Minister to intervene pursuant to s.48B of the Act, and the decision to actually intervene, was of such length that he was required to pursue proceedings in this Court, in circumstances where he was detained in the Immigration Detention Centre, so as to prevent his removal from Australia pending resolution of his request for intervention. Had the Minister decided to intervene at an earlier time then, it was submitted, the applicant could have discontinued proceedings at a much earlier time. Further, that costs were incurred by the applicant because of this passage of time.
I agree with Mr Braham that in all the circumstances of this case a costs order should not be made in favour of the applicant.
The applicant applied for a protection visa in November 2002. Following refusal, he sought review by the Tribunal in December of that year. There is no clear evidence before the Court in these proceedings as to what occurred between that time and the applicant being taken into detention in July 2007.
But what is clear is at that time the applicant sought (in August 2007) to extend his stay in Australia, obviously with a view to ultimately remaining in Australia, by asking the Minister to exercise his discretion pursuant to s.48B to allow him to make a second application for a protection visa. The material before the Court reveals (see the Court Book (“CB”) at CB 97 and CB 98 (put before the Court in these proceedings by the first respondent)) that the applicant authorised a “Ms Frances Milne” of “Balmain For Refugees” to assist him to write to the Minister to seek his intervention pursuant to s.417 or s.48B of the Act.
It was not until some two weeks later on 13 September 2007 that the applicant filed his application pursuant to the Migration Act in this Court seeking review of the Tribunal’s decision.
In my view, it is clear that the applicant who, from August 2007 had some relevant community assistance, and from 24 October 2007, with legal assistance (see the affidavit of Mr McCrudden at [2]), pursued two distinct and, in very important senses, contradictory and inconsistent avenues to achieve his purpose of ultimately remaining in Australia, and, to at least in the short term with the application for judicial review, to stop his removal from Australia.
In this regard I draw an analogy with the situation, often seen in this Court, where an applicant before this Court in a matter pursuant to the Act could still be refused relief that he seeks, in the exercise of the Court’s discretion, even if jurisdictional error were found to have occurred in the Tribunal’s decision. This is where the applicant seeks to explain some delay in commencing the proceedings on the basis of having pursued an alternative avenue, namely Ministerial intervention, to provide a different outcome to the applicant than what was determined by the relevant Tribunal (see Applicant A2 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 576 at [9], Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock [2003] FCA 684 at [9], Re Ruddock; Ex parte LX [2003] FCA 561 at [42], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [12], Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186 at [18]-[20] (see also Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186), Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 at [14], M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520; [2004] FCAFC 293 at [22]-[24], S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283, SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 at [18]-[20], SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683 at [25]-[26] (but see contra – Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [6])).
What I draw from this is, obviously not the issue of delay, but relevant to the matter before the Court now, the inconsistency between, and contradiction inherent in, the two courses of action adopted by the applicant. The first being to seek intervention by the Minister to enable him to make another protection visa application in circumstances where implicit in such a request is the assumption of the validity of the application made in the first place, and certainly no assertion of jurisdictional error on the part of the Tribunal. In fact I note that the authority which the applicant gave to Ms Milne, and on which Ms Milne acted, was not only to seek intervention by the Minister under s.48B of the Act, but also under s.417 of the Act. A course of action which, with reference to s.412, calls on the Minister to substitute a more favourable decision in relation to the applicant than that made by the Tribunal. Plainly, such a request at least does not seek to take issue with the efficacy of the Tribunal decision, and in my view, implicitly relies on the proposition of that decision having no jurisdictional error. Otherwise, if it had, the appropriate course of action would be to pursue that complaint through the Courts and not to assert otherwise to the Minister.
The applicant chose two inconsistent courses of action to achieve an outcome, that is, to extend his stay, or ultimately remain, in Australia. Plainly, there is no obligation on the Minister to have intervened in the way that he did, let alone to have done so within any time frame. The Minister’s power to intervene pursuant to s.48B is a non-compellable power (Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 at [9], Kolotau v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1145 at [8], SZAAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 917 at [3]).
As is set out in s.48B(6) of the Act, the Minister does not have a duty to consider even whether to exercise the power provided under s.48B(1) of the Act, that is, to intervene in the public interest. This was the course of action first sought by the applicant, a course which at the very least impliedly asserts the validity of the application for a protection visa, and decision to refuse it, and the efficacy of the subsequent Tribunal decision.
The current proceedings were brought as a quite distinct and separate exercise by the applicant, and it must be said, in agreeing with Mr Braham’s submission, in circumstances where the grounds put before this Court by way of the further amended application, with the benefit of legal advice, would have left the applicant, no matter which of the grounds were to be successful (of those where the Court had jurisdiction to consider), in a position far less advantageous than he now finds himself.
At best, any declaration as to the invalidity of the application for review, and in the absence of evidence such as to make out a denial of procedural fairness before the Tribunal, would have left the applicant in a far less advantageous position. While no criticism whatsoever is made of the applicant’s legal representatives, it is difficult in all the circumstances of this case not to draw the inference that proceedings before this Court were at least to some extent pursued initially by the applicant, and at least on or about 24 October 2007 (see paragraph 5 of the affidavit Mr McCrudden) for the purpose of extending his stay in Australia (albeit in detention) until such time as the request for Ministerial intervention was resolved one way or another.
It is Mr McCrudden’s evidence that on or about 24 October 2007 he first heard from his client that his client had written a letter to the Minister in August 2007 seeking the exercise of his discretion. Mr McCrudden’s evidence is that the applicant did not have a copy of that letter. A perusal of the bundle of relevant documents filed in these proceedings by the first respondent on the 15 October 2007 would have revealed that the applicant had given authority to Ms Milne to write to the Minister on his behalf. There is nothing in Mr McCrudden’s evidence or otherwise to show that action was taken to pursue the issue with the Minister. Instead, an amended application was filed on 31 October 2007, and a further amended application on 16 April 2008, an application which it must be said, as in my view correctly submitted by Mr Braham, would not ultimately have been of assistance to the applicant.
Further, in my view this is a matter in which this Court must have some regard for r.44.15 of the Rules (noting of course that ultimately this Court is not bound by the Rules, a position which is reinforced by the Rules themselves in that the Court may dispense with the Rules in the interests of justice (r.1.06)). Nonetheless the Rules provide at least a useful guide for this Court to consider.
In this regard r.44.15 provides that an applicant who files a notice of discontinuance of an application for an order to show cause is “liable” to pay the respondent’s costs. What must be noted here is that not only is there no provision made for an applicant who files a notice of discontinuance to seek costs, but clearly at the very least a presumption is set up by this rule that there is a “liability” to pay the respondent’s costs. In these circumstances, unlike the situation flowing from r.13.2, r.44.15 in my view (subject to the exercise of the Court’s discretion) sets up a presumption against the applicant being awarded costs in circumstances where a notice of discontinuance is filed, and further, a presumption that the costs of the respondent in the proceedings should be paid (subject to any exercise of the Court’s discretion – “unless the Court otherwise orders ….”).
I note that this Rule provides that an applicant who files a notice of discontinuance for an application for an order to show cause is liable to pay the respondent’s costs. Both the originating application, the amended application filed on 31 October 2007, and even the further amended application filed on 16 April 2008, were all applications made pursuant to r.44.05 which is, according to the Rules, an application for an order to show cause in relation “to proceedings under the Migration Act 1958”. That I subsequently made an order dispensing with a show cause hearing and moving to a final hearing, does not alter the fact that such an application was filed by the applicant. I take the view that any subsequent order by the Court dispensing with a show cause hearing does not affect what is said to be the “liability” set out in r.44.15(2).
In my view, it is not appropriate that an order for costs be made in favour of the applicant. The Rules of this Court do not provide for such an order in the relevant circumstances. But nor in the exercise of the Court’s discretion do I consider it appropriate to do so.
The applicant’s submission rests on what is said to be “delay” on the part of the Minister in relation to the exercise of his s.48B power.
I agree with Mr Braham, and for the reasons set out above, that this is not a matter relevant to the issues in the proceedings before the Court. Beyond the fact that such a power is non-compellable, what is said by the applicant to be the Minister’s conduct in that regard, is not conduct in the proceedings before the Court.
Further, the applicant chose to pursue judicial review, challenging the validity of his own applications for a protection visa and the subsequent application for review. He did so, and pressed the matter, with the benefit of legal advice (at least in relation to his amended and further amended applications).
In relation to the latter this would have left the applicant, as Mr Braham submits, in a futile position on the provisions of s.417 of the Act.
Further, as subsequently affirmed in MZXOT, this Court does not have jurisdiction to review the delegate’s decision. Even further I would have had some considerable difficulty in finding fraud in relation to the Tribunal’s decision on the evidence provided by the applicant. (Noting he also gave oral evidence before the Court and was subject to cross-examination.)
In all, I agree with Mr Braham’s submissions in this regard.
Rather, in my view it is appropriate that an order for costs be made in favour of the first respondent.
The first respondent seeks such an order on a number of alternative bases. Taking these in order. First, the first respondent at least seeks such an order from the time at which the Court first raised with both parties concerns about the jurisdiction of the Court to make orders sought by the applicant (22 April 2008).
The difficulty that I have with such a proposal is that even if it was the case that the Court lacked jurisdiction in relation to the decision of the Minister’s delegate, I could not see any such issue in relation to the grounds relating to the Tribunal’s decision. The views expressed by the Court about its jurisdiction were therefore only in relation to part of the amended application before it at that time.
Second, the first respondent seeks a costs order in relation to costs from 17 April 2008 being the date on which (with reference to the evidence of Mr O’Brien) an approach was made to the applicant’s solicitors to adjourn proceedings (and with the consequence of the saving of costs) to allow the “s.48B process” to come to some conclusion.
In this regard I am persuaded by Ms Chambers’ submission that it is inconsistent of the first respondent to argue now that the Court should not have regard to the time taken in resolving the s.48B request, yet at the same time take such issue into account in considering that there were invitations to adjourn in order to allow the s.48B process to be resolved. I agree with her submission that on that point and note further that there was no evidence before the Court as to whether the Minister could proceed to resolve the s.48B request while proceedings before this Court were on foot. (Paragraph 5 of Mr McCrudden’s affidavit was not read before the Court.) Although the Minister did proceed to so resolve that issue while the matter was on foot – see paragraph 16 of Mr O’Brien’s affidavit, and paragraph 13 of Mr McCrudden’s affidavit.
What is left, therefore, is whether the applicant should pay the first respondent’s costs in relation to the entire proceedings (as submitted by Mr Braham), or consistent with r.44.15(2) (as submitted in the alternative by Ms Chambers).
I should just note that it is unfortunate that despite the opportunity (and I provided opportunities for the parties as late as the occasion of the hearing of the costs applications) that the parties were unable to reach some agreement on this matter.
In all, while it is the case that the Minister’s intervention now has, in a real sense rendered the application for judicial review futile, in effect, I cannot see as set out above that the Rules of this Court provide, nor that it is reasonable for this Court to make an order for costs in favour of the applicant. (On the basis that there was a 10-month lapse between the request for Ministerial intervention and that intervention taking place.) As Mr Braham submits, correctly in my view, there is nothing in the Rules of this Court that entitle the applicant in circumstances where he seeks leave to discontinue proceedings to recover a costs order. Nor is it otherwise reasonable in the circumstances for the Court to so award costs to the applicant for the reasons set out above.
In my view, the relevant Rule of this Court provides that unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application for an order to show cause is liable to pay the respondent’s costs in accordance with item 2 of Part 2 of Schedule 1 to the Rules of this Court.
I take the view that I am not strictly bound by the Rules.
Nonetheless, the Rules, in my view, do provide a useful guide in matters of this type. Costs should be costs incurred in the proceedings. It was for this reason that Mr Braham, correctly in my view, submitted that the Court should not take into account the time taken for the s.48B matter to be resolved. It plainly was not part of these proceedings.
Putting, therefore, this matter to one side, however, I am not persuaded by the first respondent’s submission that I should make an order otherwise than as provided for in the relevant Rules of this Court.
Ultimately, the Court needs to be guided by what is reasonable in all the circumstances. The applicant did make an application which in all of its iterations posed difficulties for him before this Court. But at least in relation to the matter of the Court’s jurisdiction, this was not an issue raised by the first respondent. Neither by way of the initial response, understandably given the nature of what was asserted in the application of 13 September 2007, but importantly when the amended application of 31 October 2007 extending the grounds to attack the jurisdiction of the first respondent in relation to the protection visa application, no response was made by the first respondent before the Court in relation to that matter until the Court raised the issue.
In my view, Mr Braham’s submissions were for the most part successfully directed to the issue of why a costs order should not be made in favour of the applicant, submissions with which I agree.
Further, Mr Braham’s submissions as to why a costs order should be made in favour of the first respondent are submissions with which I also generally agree. However, as to the amount of what should be contained in that costs orders, nothing further was put before the Court as to why it was reasonable in the circumstances for the Court to depart from what is the guide provided in its own Rules. That is, why it should “otherwise” order.
In this regard, therefore, I am of the view that the costs order should be made consistent with the amount set out in item 2 of Part 2 of Schedule 1, that is, relevantly, part (d) – $3,500.
The applicant has not been successful in these proceedings. But neither has the Minister. Particularly in the sense that there has been only a part-hearing of the applicant’s grounds and issues and no final judicial consideration of the application such that it could be said the Minister was ultimately successful in challenging the applicant’s complaints.
Had the Minister been successful in this way it may well have been that he would also have been successful in his application for costs in the entire proceedings. But that is plainly not the case.
No matter the merits of the application before the Court (this is a factor, in part, arguing against a costs order in favour of the applicant, and further arguing for costs in favour of the respondent) what remains in terms of the quantum of costs is that the Rules provide for a certain sum in circumstances where a discontinuance is made in relation to an application for show cause made under the Migration Act.
In these circumstances, I cannot see any factor such as to argue, bearing in mind the Court’s need to exercise its discretion reasonably, that the Court should exercise its discretion “otherwise” than what is provided for in the Rules of this Court.
For this reason, the costs order in favour of the first respondent should be made in the amount contemplated by the Rules.
The orders, therefore, that I propose to make in these proceedings are:
1)Leave be granted to the applicant to file a notice of discontinuance in these proceedings.
2)There be no order as to costs in favour of the applicant.
3)The applicant pay the first respondent’s costs set in the amount of $3,500.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 25 July 2008
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