Minister for Immigration and Border Protection v Kaur

The submissions on discretion 5 The discretion conferred by s 6(1) is a broad one. It is, nevertheless, a discretion to grant, not a discretion to refuse. There is no presumption in favour of the grant of a certificate: Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477; Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102. In this connection, the Full Court noted in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at [50]: [50] … Although the section offers a wide discretion, it is not sufficient simply to establish that the appellant succeeded on a question of law: see Reeve v Fowler [1965] NSWR 110; Australian Trade Commission v Underwood Exports (1997) 49 ALD 426 at 428. It is necessary to show some ground for the Court to exercise its discretion: see Main v Main (1949) 78 CLR 636 at 643… 6 The costs respondents advance four grounds which they say support the exercise of the discretion in their favour. First, they submit that, as individuals, it would be unreasonable to expect them to have defended the appeal without representation. They submit that the appeal was "a complex case" which involved a novel issue. Secondly, they submit that there are no matters concerning the conduct of the litigation that would disentitle them to a certificate. Thirdly, they submit that the decision in the appeal may have wider implications for the administration of the student visa regulatory scheme. Further in this regard, they submit that the decision clarifies how decision-makers should interpret and apply the source of funds requirements for student visas. The costs respondents point, in this connection, to what they describe as an apparent inconsistency between the regulations and the guidelines as to how the relevant requirements should be applied. This inconsistency was identified in the decision below (Kaur v Minister for Immigration and Border Protection (2014) 286 FLR 90 at [21]-[22]). Fourthly, they submit that the existence of a debt to the Commonwealth would disadvantage them in future visa applications. 7 In opposing the application, the appellant points to the fact that the costs respondents have placed no evidence before the Court of their financial positions. There is no evidence that they cannot meet a costs order and there is no evidence that they would be disadvantaged in respect of future visa applications by an order for costs that is not supported by a costs certificate. The appellant accepts that the decision in the appeal has implications for the administration of the student visa regulatory scheme and that the decision clarifies how decision-makers should interpret and apply the source of funds criteria. Nevertheless, the appellant points to the fact the appellate jurisdiction of the Court was exercised by a single Judge and not a Full Court.

Consideration 8 The burden of arguing the appeal for the costs respondents was undertaken by the first respondent, Ms Kaur. The second and third respondents are members of her family. Their visa applications were dependent on the success of Ms Kaur's application. They played no active role in the appeal. I do not think that it would be an appropriate exercise of discretion to grant them separate costs certificates in respect of the appeal. 9 I am persuaded, however, that it would be an appropriate exercise of discretion to grant Ms Kaur such a certificate. In my view, having regard to the question of law involved, it is unrealistic to expect that Ms Kaur could have undertaken the burden of the appeal without legal representation. Such representation was not only a benefit for Ms Kaur. It was also a benefit for the Court in having an argument presented in proper adversarial form. It is also significant that the resolution of the question involved has consequences beyond the immediate case and clarifies how, at least in one respect, the source of funds criteria are to be applied in respect of applications for student visas. 10 It is true that the first respondent has not placed evidence before the Court of her financial circumstances. However, in the present case, I do not think that this is of countervailing significance in light of the other considerations to which I have referred. In any event, although the financial position of a respondent is a relevant consideration to be taken into account, I do not think that it is only in cases of financial hardship that the discretion can or should be exercised. It can be taken that a respondent to an appeal is an unwilling party. The question arising under s 6(1) is whether, in the circumstances contemplated by that provision, a burden should fall on the unsuccessful respondent in a given case without the measure of alleviation provided by a costs certificate. I am satisfied that the circumstances of this case are such that that measure of alleviation should be provided. In coming to that decision, I take into account that no disentitling circumstances reflecting adversely on Ms Kaur's conduct of the litigation have been brought to my attention. 11 Finally, I should record that I do not think that the appellate jurisdiction of the Court was exercised by a single Judge and not a Full Court is a matter of any significance in the present case.

Disposition 12 I am satisfied, therefore, that a costs certificate should be granted. Orders will be made accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.