SZMVA v Minister For Immigration and Anor (No.2) - [2009] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVA v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 848

MIGRATION – COSTS – Unsuccessful application for review of decision of Refugee Review Tribunal – whether applicant’s belief in reasonable prospects of success warrants making no orders as to costs.

Federal Magistrates Act 1999 (Cth), s.79
Migration Act 1958 (Cth), ss.425, 486I

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Council of the Municipality of Botany and Others v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories and Others (1992) 34 FCR 412
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Qantas Airways Limited v Cameron (No 3) (1996) 68 FCR 387

Applicant:

SZMVA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2573 of 2008

Judgment of:

Barnes FM

Hearing date:

26 August 2009

Delivered at:

Sydney

Delivered on:

26 August 2009

REPRESENTATION

Solicitors for the Applicant:

David Legal

Solicitors for the Respondent:

Clayton Utz

ORDERS

The applicant pay the costs of the first respondent fixed in the sum of $8,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2573 of 2008

SZMVA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant has been unsuccessful in an application to review a decision of the Refugee Review Tribunal affirming a decision not to grant him a protection visa. The first respondent seeks costs in the sum of $9,200 on the basis that this is 70 per cent of the party/party costs. The applicant asks the Court to exercise its discretion not to make an order that the applicant meet the costs of the first respondent and in that respect relies on an affidavit of Suzy David filed on 26 August 2009.
The basis on which it is submitted that the Court should exercise its discretion is that, according to Ms David, it was reasonable for the applicant to commence the proceedings and, in that context, reasonable to obtain a transcript of the Tribunal hearing and an expert opinion where the possible jurisdictional error was said to arise from the conduct of the Tribunal hearing and, in particular, from interpretation at that hearing.
On that basis it was said that the applicant acted reasonably in obtaining an opinion. Reference was also made to the fact that an attempt was made to settle this matter and concessions were unsuccessfully sought from the solicitors from the first respondent and also to the fact that the first respondent chose not to adduce its own expert evidence in relation to the Tribunal hearing.
It was also submitted that this was an important case for the applicant based on the grounds on which he asserted that he had a well-founded fear of persecution. It was said that the applicant, not having a work permit, was in dire financial circumstances and that that should be taken into account.
The solicitor for the applicant was not able to point to any authority in relation to any of these submissions.
It is well-established that ordinarily costs follow the event and that a successful litigant should receive its costs in the absence of special circumstances justifying some other order (see the summary of the applicable principles in relation to the exercise of discretion of the Federal Court to award costs by Toohey J in Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748).
The Federal Magistrates Court also has a discretion under s.79 of the Federal Magistrates Act 1999 (Cth) in relation to the award of costs. The discretion must be exercised judicially. Principles have developed to deal with situations where a litigant is partly successful or failed on particular issues. This is not such a case.
There are also special circumstances in which there may be reasons why the general costs, or the costs of particular issues, will be ordered otherwise than in accordance with the general principle, having regard to matters such as the manner in which a proceeding was conducted or factors such as, for example, the public interest in litigation.
In this case what is relied on is, in essence, an assertion that the application had reasonable prospects of success. I note in that respect that, as I raised with the solicitor for the applicant, there is a requirement under s.486I of the Migration Act 1958 (Cth) for a lawyer who files a document commencing migration litigation not to do so unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. There are certain obligations and consequences in the absence of a reasonable prospect of success. That does not mean that the existence of reasonable prospects of success amounts to special circumstances.
The fact that there were, in the mind of the lawyers for the applicant, and of the applicant, reasonable prospects of success is not such as to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent. Were it otherwise it would be difficult to distinguish this case from any other case in which a lawyer had certified that there were reasonable prospects of success as required under the Migration Act.
In relation to the fact that a transcript and expert evidence was obtained, the fact that it was reasonable to proceed in that way in order to put evidence before the Court to support the contentions of the applicant in relation to the alleged failure to comply with s.425 of the Migration Act or other jurisdictional error arising out of the conduct of the hearing and, in particular, the adequacy of the interpretation is not such as to warrant the costs order sought by the applicant. While the applicant appropriately sought to put such evidence before the Court, the fact that that occurred and that the nature of the issues involved in this case involved some complexity and additional time and effort on the part of both parties, is not of itself, or in conjunction with the other matters raised by the applicant, such as to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent.
Nor is this a case in which it has been seriously suggested that there was an issue in relation to the conduct of the proceedings by the first respondent. The fact that the first respondent was not prepared to make concessions and chose not to adduce its own expert evidence is not such as to warrant a departure from the normal principle. It was open to the solicitors for the first respondent to rely on the transcript, as what was in issue was whether there was a failure to comply with s.425 or otherwise a jurisdictional error, in particular in the sense considered by the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230.
There have been test cases, novel cases, cases involving liberty of the individual and those in which legal aid or pro bono issues have led courts to depart from the normal principle. This is not such a case. It has not been established that this was public interest litigation in the sense of involving a broader principle that had to be determined by the Court beyond the interests of the particular parties. Nor is this a case where a body set up to pursue cases in the public interest proceeded by way of litigation (and, in any event, see the comments of Gummow J in the Council of the Municipality of Botany and Others v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories and Others (1992) 34 FCR 412, in relation to such circumstances and Qantas Airways Limited v Cameron (No 3) (1996) 68 FCR 387). There is no suggestion that this case can be characterised as a test case but even it was, that would not of itself be sufficient to deprive a successful party of the usual order for costs.
The fact that the solicitor for the applicant suggested that this matter was of particular importance for her client may be said to be the case from the perspective of every applicant for review of a decision of the Refugee Review Tribunal having regard to the nature of the decisions made by that Tribunal. However it is not for this Court to determine whether an applicant is a refugee and merits review is not available in this Court. Important as the ultimate consequences of litigation may be seen to be for an individual applicant and while that may be an explanation for why proceedings are brought and judicial review pursued, it is not such as to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent.
I have had regard to the nature of this and other similar matters. The applicant’s solicitor referred to the applicant’s lack of funds and impecuniosity. Again, that does not distinguish this case from the normal cases involving applicants for review of decisions of the Refugee Review Tribunal who are generally in such a position, having regard to the absence of permission to work in Australia. An applicant’s impecuniosity is not, of itself, such as to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
Accordingly, having regard to all of the circumstances in this case and all of the matters relied on by the applicant the applicant should meet the costs of the first respondent.
It is the case that because of the nature of this case additional time had to be expended by the parties’ lawyers in relation to the transcript. The one aspect of the first respondent’s claim that was not explained satisfactorily was the suggestion that the time at which the transcript was filed increased the costs incurred for the first respondent. I do not understand how the fact that the transcript was filed on 20 March 2009, when the hearing was on 1 June 2009 some considerable time later, added to the costs incurred by and on behalf of the first respondent (apart from earlier correspondence in relation to an extension of time for this to occur).
I have had regard to the fact that there was additional work involved because of some lack of certainty about the precise meaning of what appeared in the transcript (in particular the references to “translation”). It was necessary for there to be an opportunity for each of the parties to file further evidence and written submissions clarifying those matters. This added to the costs incurred. These are not matters than can be attributed to the first respondent as the difficulty arose because of the form of the transcript relied on by the applicant.
Having regard to all of the circumstances and the nature of this and other similar matters I consider that, while the first respondent should have its costs, an appropriate amount is the sum of $8,000. I consider that that amount takes into account the additional costs properly incurred in this case.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 September 2009