Kaur v Minister for Immigration and Border Protection

INTRODUCTION 1 On 11 February 2016, I dismissed the appeal from the Federal Circuit Court dismissing an application by the appellant, Ms Kaur, for judicial review of a decision of the (then) Migration Review Tribunal (Tribunal): Kaur v Minister for Immigration and Border Protection [2016] FCA 70 (Kaur). By its decision, the Tribunal had refused to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) visa pursuant to the Migration Act 1958 (Cth). 2 At the same time that I delivered judgment on the appeal, orders were made for the parties to file submissions on the issue of costs. Subject to the parties communicating any objection by 18 March 2016, the orders provided for the issue of costs to be determined on the papers. No objection was communicated and accordingly I have resolved the issue without a further hearing. 3 The first respondent filed written submissions in accordance with the orders seeking its costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the ground that it was wholly successful in defending the appeal. No written submissions were filed by the appellant in response.

2.1 Should an order be made awarding the first respondent his costs? 4 The power to award costs is conferred by s 43(2) of the FCA Act which relevantly provides: … the award of costs is in the discretion of the Court or Judge. 5 While the question of costs is a matter for the Court's discretion, the ordinary rule is that a successful party is entitled to its costs: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234-235 [11] (Black CJ and French J); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [2] (Beaumont and French JJ). 6 At [6] of my reasons in Kaur, I explained that there had been a delay of almost three years between the appellant seeking review of the delegate's decision in the Tribunal and the appellant receiving a letter from the Tribunal inviting her to appear. That delay on the part of the Tribunal was unexplained by the evidence. I also considered at [26] of my reasons that: With respect to the first issue raised on the appeal, it will be recalled that the appellant had completed the original courses of study to which her application related at the time of the Tribunal hearing but did not make a fresh visa application (assuming it was open to her to do so) for the Advanced Diploma in Marketing which she then wished to undertake. Nonetheless she had to satisfy the requirement of demonstrating the existence of sufficient "funds from an acceptable source" which, by reason of the definition of that phrase in cl 5A405(2)(aa), must constitute a money deposit held for "at least the 6 months immediately before the date of the application" (emphasis added). In this case, that meant proof of a money deposit in the required amount as at 15 December 2010, the application having been made on 15 June 2011. Understandably the appellant took issue with the relevance of demonstrating the existence of sufficient funds from this date, notwithstanding that she was now enrolled in a different course due to commence in October 2014. Not surprisingly, her circumstances had changed during the period of the Tribunal's lengthy and unexplained delay in determining her application for review. Nor with respect can it be said that the Tribunal's reasons explained this point with clarity in which case it may have been the case that this application would not have been made. That notwithstanding, it remains the case that the Tribunal was correct to consider whether this criterion was met by reference to the date of her original application for a visa. 7 The first respondent submitted that neither the substantial delay by the Tribunal in determining the application for review, nor the lack of clarity in the Tribunal's reasons as to why it remained necessary for the applicant to demonstrate sufficient funds as at the end of 2010 for studies commencing in late 2014, were reasons to deprive the first respondent of his costs. In support of this, the first respondent relied on the reasons of Kenny, Murphy and Beach JJ in Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14]: The principles governing the award of costs are well understood. It is uncontentious that s 43 of the Federal Court of Australia Act 1976 (Cth) gives the court a largely unfettered discretion in relation to costs. Section 43(3) relevantly provides that without limiting the discretion the court may award costs in favour of, or against, a party whether or not the party is successful in the proceeding, or order a party's lawyer to bear costs personally. The discretion must be exercised judicially, not arbitrarily or capriciously, and must relate to the litigation in question: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 at 206-207 (Fisher J). In the ordinary course costs will follow the event and if an appeal succeeds then the court will order the respondent to pay the costs of the appeal and of the proceeding at first instance, unless there are special circumstances justifying some other order: Ritter v Godfrey [1920] 2 KB 47 ("Ritter") at 52-53 (Lord Sterndale MR) and 54 (Atkin LJ); Gladstone Park Shopping Centre Pty Ltd v Ross Wills and Others (1984) 6 FCR 496 ("Gladstone Park Shopping Centre") at 505 (Davies J); Ruddock v Vadarlis (No 2)(2001) 115 FCR 229 at [11]-[16] (Black CJ and French J). 8 In the first respondent's submission, there was nothing relating to the appeal which justified a departure from the ordinary rule that costs should follow the event. According to the first respondent, the matters raised on appeal, even if viewed sympathetically from the appellant's position, do not justify a departure from the usual position as to costs. The first respondent also submitted that there were no matters or issues agitated by the first respondent unreasonably, or upon which the first respondent was unsuccessful. 9 While the delay and the lack of clarity in the Tribunal's reasons were most unfortunate, I do not consider that the respondent ought to be deprived of its costs as a result. Neither of these matters is attributable to conduct by the first respondent and the first respondent was wholly successful in defending the appeal. Nor were there any other considerations which might suggest that the first respondent should be deprived of its costs. In the circumstances, I consider that the ordinary rule as to costs should be applied with the consequence that the appellant should pay the first respondent's costs.

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Judgment (4 paragraphs)

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Cases Cited (7)