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[2002] FCA 336
Federal Court of Australia
2002-03-26
Weinberg J
Original judgment source is linked above.
background 1 The applicant is a registered migration agent. He relies on his practice as a migration agent for his livelihood. The Migration Act 1958 (Cth) ("the Act") sets out a compulsory scheme of registration whereby the respondent, the Migration Agents Registration Authority ("the MARA"), is the statutory regulating body. Any person who wishes to provide migration assistance must be a registered agent. The scheme is that there is registration for a twelve month period. The MARA is required to register an applicant for registration unless one of the situations prescribed in ss 290-294 of the Act is applicable. 2 Section 290(1) of the Act provides, inter alia, that an applicant must not be registered if the MARA is satisfied that the applicant is not a fit and proper person to give immigration assistance or is not a person of integrity. Section 290(2) provides that in considering whether it is satisfied that the applicant is not a fit and proper person, or not a person of integrity, the MARA must take into account a range of matters, one of which is the extent of the applicant's knowledge of migration procedure. 3 In September 1999 a former client of the applicant made a complaint about him to the MARA. On 27 September 1999 the MARA wrote to the applicant informing him of that complaint. None of the matters to which the MARA referred in that letter, or in subsequent correspondence, raised the issue of the extent of the applicant's knowledge of migration procedure. Nevertheless, by letter dated 23 February 2001 the MARA informed the applicant that although it had "decided to take no further action to the complaint" it had "found that you have demonstrated a lack of sound knowledge in the area of Visitor Visa matters and Visitor Visa conditions". The MARA went on to say: "…at the time of your next application for registration in order for the Authority to be satisfied that you are a fit and proper person to give immigration assistance … you will need to demonstrate that you have improved your knowledge of Visitor Visa matters and Visa Conditions … At the time of your next application for registration, in addition to any legislative requirements for that registration, and in addition to your mandatory CPD requirements, the completion of selected courses totalling an additional 8 CPD points … will be sufficient to demonstrate sound knowledge … The courses must be completed prior to your next registration as a migration agent." 4 The applicant sought to persuade the MARA that he should not have to do additional CPD units. He argued that to require him to do so would be onerous, and perhaps also practically impossible. The MARA then offered him the alternative of completing a "sound knowledge exam to satisfy the Authority's requirements". However, it did not specify what such an examination would entail. 5 In July 2001, the applicant wrote to the MARA seeking reasons for its determination that he did not have the requisite knowledge of migration procedure. He received no response to that letter. 6 The applicant claimed that at no stage did the MARA ever inform him of how it had come to the view that he lacked sound knowledge of migration procedure, save that in a letter dated 15 February 2002, it said that its view was founded on the material in the complaint made by the client in September 1999. 7 It was against this background that, on 13 December 2001, the applicant commenced proceedings for judicial review in this Court. A notice of motion seeking urgent interlocutory relief was filed at the same time as the substantive application. 8 The application for interlocutory relief was listed for hearing on the morning of 20 February 2002, the last day of the applicant's then current registration. However, on that morning the applicant was informed that the MARA had decided to register him, and had in fact done so. In these circumstances, the application for judicial review became moot. The applicant now seeks his costs. He submits, in the alternative, that there should be no order as to costs. That was the position originally taken by counsel for the MARA on 20 February 2002.
the competing submissions 9 The applicant submitted that in the present case the MARA, without having given any reasons, came to the view in February 2001 that the applicant did not have sound knowledge of migration procedure. Having consistently thereafter expressed the view that he was not a fit and proper person to be registered unless he undertook further studies, or sat an additional examination, the MARA, on the very morning of the hearing of the application for interlocutory relief, suddenly informed both the Court and the applicant that he had, in fact, been re-registered. 10 The applicant submitted that there was an overwhelming likelihood that, had the MARA not re-registered him, he would have succeeded in obtaining an interlocutory order compelling it to do so. He submitted that there was clearly a serious issue to be tried in relation to his claim that he had been denied natural justice. Moreover, the balance of convenience overwhelmingly favoured the granting of the order. For these reasons, although in this matter there had been no determination by the Court, there was a sufficient basis upon which the MARA should be ordered to pay the applicant's costs. 11 The MARA submitted that there should be no order for costs in relation to the application, or the notice of motion seeking interlocutory relief. However, it submitted that the applicant should pay its costs incurred in defending his application for costs. 12 The MARA submitted that the application for judicial review had been filed prematurely. That was because at the time the proceeding was commenced there was no "conduct" or "decision" susceptible to review. At its highest, the applicant was concerned that the MARA might refuse to register him for the year commencing 21 February 2002. It was not a foregone conclusion that it would do so. Section 290(1) of the Act required the MARA to consider whether the applicant was a fit and proper person to be registered. Section 290(2) imposed upon the MARA the obligation to determine whether or not he had the requisite knowledge of migration procedure that it considered to be sound. These were matters that the MARA would have to consider before the applicant could be re-registered irrespective of any complaint that might have been made about him by a disgruntled former client. 13 The MARA also referred to s 309 of the Act which provides that if it is considering refusing a registration application the Board must inform the applicant of that fact and the reasons for it and invite him to make a further submission in support of his or her application. The MARA had done no more than comply with the requirements of that section. The applicant had made a further submission in support of his application, and that application had been approved. It followed, so it was contended, that both the application for judicial review and the notice of motion seeking interlocutory relief had been filed prematurely. 14 The MARA also submitted that had the applicant's application for registration been refused, he had a statutory right of review before the Administrative Appeals Tribunal ("the AAT"). Under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) the AAT has wide powers in terms of making interim orders concerning the decision being reviewed. Those powers included a power to stay the operation or implementation of the decision to which the relevant proceeding related. Accordingly, the application to this Court for interlocutory relief had been misconceived. Indeed, the MARA submitted it had been entirely without merit, and had been certain to fail. 15 The MARA drew attention to Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287 in which Finkelstein J noted that in the absence of a hearing on the merits it was: "… difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances."
conclusion 16 It is clear that whether or not costs should be ordered in any particular circumstances is a matter of wide judicial discretion. Section 43 of the Federal Court of Australia Act 1976 (Cth) empowers the Court to order costs, and does not purport to fetter that discretion. Ordinarily costs follow the event, and are normally awarded on a party and party basis. However, every case must be decided in light of its own particular circumstances. 17 In my view the application for judicial review made to this Court ought not to be regarded as having been made prematurely or, more fundamentally, as having been entirely misconceived. The fact that the applicant commenced this proceeding before the MARA made a final decision as to whether he should be re-registered does not mean that the application was premature. The fact that the applicant had available to him a possible appeal to the AAT had his re-registration been refused does not mean that the Court would, in the exercise of its discretion, inevitably have dismissed his application for interlocutory relief. 18 The MARA's statements to the applicant in its correspondence to the effect that it had "found" that he had demonstrated a lack of sound knowledge in the area of Visitor Visa matters and Visa Conditions meant that there was, as the applicant described it, "an early and continuing definitive statement by the [MARA] that unless the applicant undertook the additional CPD points or the examination the [MARA] would not register him". That determination was one which plainly affected his right to carry on his occupation. At a prima facie level at least, it was reached without notice to him, or any proper opportunity to comment upon the particular matters which concerned the MARA. 19 In circumstances where the applicant wrote to the MARA in July 2001 seeking reasons for its determination, and received no reply, it was, in my view, entirely reasonable for him to approach the Court to seek both judicial review and the interlocutory relief which he did. He was entitled, under the Act, to have his case for re-registration fairly determined on the merits by the MARA. He acted reasonably in seeking to resolve the situation by corresponding with the MARA, but received not even the courtesy of a reply. It was only thereafter, as the due date for re-registration was approaching that he filed his application seeking judicial review. He submitted an application for re-registration, but astonishingly that application was not determined until the morning of 20 February 2002, the last day of his then current registration. 20 The inference for which the applicant contends, namely that his re-registration was granted on that day only because of the pending interlocutory proceeding, is one which is plainly open. 21 When the MARA's counsel informed the Court on the morning of 20 February 2002 that the applicant had in fact already been re-registered, that amounted to a complete reversal of the position consistently manifested by it from the time of its original letter dated 23 February 2001 until its letter dated 15 February 2002. It is true that the applicant had a right of recourse to the AAT in the event that his registration was not renewed. It is also true that he might have sought some form of interim relief from the AAT pending the hearing and determination of his appeal to that body. However, in a case where his primary complaint was that he had been denied procedural fairness, a matter which goes to the legality of the MARA's decision, and not its merits, it cannot be said that it was unreasonable of the applicant to seek judicial review and interlocutory relief in this Court. 22 I consider that the MARA failed to act reasonably in delaying its decision to re-register the applicant until the morning of the hearing of his application for interlocutory relief. At the very least it should have informed him several days earlier that it was considering allowing his re-registration without the need for any further studies, or any examination. That would have obviated the need for the interlocutory application to proceed. 23 I will order that the MARA pay the applicant's costs of the application for judicial review and of the notice of motion for interlocutory relief. The applicant should also have any additional costs incurred by reason of the need to prepare written submissions in relation to the question of costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Associate: Dated: 26 March 2002 Counsel for the Applicant: Mr A. Krohn
Solicitor for the Applicant: Erskine Rodan & Associates
Solicitor for the Respondent: Australian Government Solicitor
Bulos
Migration Agents Registration Authority
(1997) 80 FCR 284