Hanna v Minister for Immigration, Citizenship and Multicultural Affairs

1. Order 2 of the orders of Judge Egan of the Federal Circuit and Family Court of Australia (Division 2) on 9 March 2022 be set aside and, in lieu thereof, there be no order as to costs of the proceedings at first instance.
2. There be no order as to costs in proceeding NSD 215 of 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 These reasons address the question of costs consequent upon the dismissal of the appellant's appeal in Hanna v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 604. Familiarity with Hanna is assumed. Defined terms used herein have the same meaning as in Hanna. In Hanna, I held that the primary judge was correct to hold that the Tribunal did not have jurisdiction to determine the appellant's application for merits review. 2 In Hanna, I made an order that costs follow the event which was subject to the parties having liberty to apply for a different costs order. I made procedural orders allowing the parties a short period of time within which to make submissions as to the appropriate costs order, including as to whether in the circumstances of this case it is appropriate to adopt an approach similar to that in Tabet v Minister for Immigration and Multicultural Affairs [1997] FCA 547; 75 FCR 446 at 457 and Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99 at 103. In Tabet and Kirk, the Court considered that each applicant had experienced certain hardship owing to circumstances that were beyond their control, notwithstanding that each application was ultimately dismissed. Accordingly, the Court considered it appropriate to make no order as to costs in both Tabet and Kirk. 3 As Mr Hanna's appeal was dismissed, the ordinary rule that costs follow the event would result in an order that he pay the Minister's costs of the proceeding: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] (Black CJ and French J); Gray v Richards (No 2) (2014) 315 ALR 1 at [2]. Section 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretion on the Court to award costs in all proceedings before it, including to depart from the ordinary rule where appropriate. 4 As I found in Hanna, there were various administrative missteps on the part of the Tribunal that adversely affected Mr Hanna's attempts to lodge a valid application for merits review accompanied by the prescribed fee within the strictly confined envelope of time prescribed. Briefly, the relevant events were as follows. On 12 May 2021, Mr Hanna lodged his initial application with the Tribunal for review of the Delegate's decision. Due to the way in which the electronic application form was framed and processed, the application was accepted for lodgement without triggering a requirement to pay the prescribed fee: Hanna at [10]. At 10.30am on 18 May 2021, the Tribunal notified there were two errors in Mr Hanna's application: first, that he had not used the correct form (Hanna at [11]), and secondly, that the relevant application fee had not been paid and was required to be paid before the expiry of the prescribed period to make a valid application. At 12.31pm that same day, Mr Hanna's representative telephoned the Tribunal and discovered that Mr Hanna had in fact lodged the correct form. The Tribunal and provided guidance as to the appropriate form for Mr Hanna to apply for a reduction of the prescribed fee. The Tribunal gave contradictory indications as to whether all or only part of the application fee needed to be paid where a fee reduction request was made (Hanna at [12] to [14]). At 12.13pm on Friday, 21 May 2021, the day in which the prescribed period expired, Mr Hanna's representative provided the completed fee reduction form, including credit card details to be used for the payment. The Tribunal did not attempt to process the payment using the details provided until the following Monday, 24 May 2021, which was the first working day after the prescribed period had expired. At 12.03 pm on 24 May 2021, the Tribunal informed Mr Hanna's representative that two attempts at payment had failed. At 12.11pm, Mr Hanna's representative responded confirming that sufficient funds were "now" available on the card. At 5.41pm that day, Mr Hanna's representative sent a further email requesting the Tribunal use an alternative credit card for the payment of the fee. The Tribunal continued to request further payment details from Mr Hanna's representative after the expiration of the prescribed period (Hanna at [23] to [24]). 5 There is no power to extend the prescribed period. The failure to cause the application to be accompanied by the prescribed fee before the end of the prescribed period was fatal. The Tribunal had no jurisdiction to hear and determine the merits review application because a valid application was not made within the prescribed time. 6 Mr Hanna submits that these administrative missteps, and the shortcomings in the conduct of the Tribunal, should sound in costs. 7 The Minister submits that he should be awarded his costs in accordance with the ordinary rule and sought to distinguish the circumstances of Mr Hanna's appeal from the circumstances of Kirk and Tabet. First, the delay in the applicant being provide relevant information as to the provision of payment in Kirk being 13 days, in contrast with the three day delay Mr Hanna experienced. I note that the delay was three working days but six calendar days. Secondly, the applicant in Tabet had not been notified of a decision until the last day to apply for a review had expired in contrast with Mr Hanna's "incorrect answer in his application for review". I note that the Minister's submission as to Mr Hanna's "incorrect answer" does not grapple with the confusion engendered by the ambiguity in the way the question was asked. Further, the Minister submitted that he had been put to the expense of two proceedings, in both of which he was successful. Finally, the Minister submits that Mr Hanna had not raised the issue of costs "prior to the Court raising it of its own volition". It is not clear to me how this submission is relevant. The issue of costs was raised and both parties have had the opportunity to be heard. 8 In my view, the Minister's submissions on Kirk and Tabet do not grapple with my findings in Hanna as to the ambiguity in the relevant electronic form (at paragraphs [9] to [11]), and instead seeks to use this ambiguity against Mr Hanna. Mr Hanna took steps to promptly rectify the issues that arose in the lodging his visa application when the Tribunal communicated the clear and correct information. The relevant statutory period - which is very short in any event - was substantially eroded by the Tribunal's administrative missteps identified above. While there is no power to extend that statutory period, it is appropriate to reflect the realities of what occurred in making costs orders that are appropriate to the circumstances of this case. To do so is an appropriate exercise of the discretion in s 43 of the Act. 9 On the day in which the prescribed period was due to expire, Mr Hanna did provide his credit card details to the Tribunal to make the relevant payment. However, it was not until the following business day, a Monday, when the failed payment was attempted. Given the appellant made multiple attempts to provide alternate payment details when notified that his card declined, I consider it likely that he would have taken similar steps within this period if the administrative missteps had not occurred. At the very least, Mr Hanna was denied the opportunity to make payment in this period. 10 I am satisfied that it is appropriate, having regard to the whole of the circumstances, to disturb the ordinary order that costs follow the event with an order that there be no order as to costs, both in the Court below and of this appeal. I will order accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.