Minister for Immigration and Citizenship v Khadgi

REASONS FOR JUDGMENT THE COURT: 1 This Court allowed the Minister's appeal on 3 December 2010: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145. The orders made by the Court on that day included an order in the following terms: 4. The first respondent pay the costs of the appellant both of the appeal in this Court and of the FMC proceeding. 2 On 3 December 2010, immediately after we delivered judgment in this appeal, the legal representative of the first respondent (Ms Khadgi) applied to the Court for an order granting to Ms Khadgi a costs certificate in respect of the appeal pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (the Costs Act). 3 Section 6 of that Act is in the following terms: 6 Costs certificates for respondents - Federal appeals (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. (2) Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney General to authorize a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates. 4 The appeal was a Federal appeal and the Minister succeeded on a question of law. The Federal Magistrate adopted an approach to the construction of s 109(1)(c) of the Migration Act 1958 (Cth) (the Migration Act) and to the prescribed circumstances specified in reg 2.41 of the Migration Regulations 1994 (Cth) (the Migration Regulations) which we rejected as erroneous. Section 6(1) of the Costs Act is therefore engaged. 5 In Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the Full Court held that the discretion conferred by s 6(1) of the Costs Act was a broad one. In that case (at [3]), the Court held that the result achieved by the Minister had implications well beyond the outcome of the particular case. The Full Court took the view that, given that there were no matters disentitling the respondent from the issue of a costs certificate pursuant to the Costs Act, the wider relevance of the case for the Minister was apt to make the grant of a certificate to the respondent appropriate. In addition, the Full Court held that such a conclusion was particularly appropriate where the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visas. 6 In the present case, as was the case in SZNVW (No 3), the Minister has achieved a result which has implications for other cases, both in terms of the correct approach to administrative decision-making generally and in terms of the true construction of important provisions of the Migration Act and the Migration Regulations. Furthermore, we do not think that there are any matters disentitling Ms Khadgi from the issue of such a certificate. 7 We therefore propose to grant an appropriate certificate to the first respondent pursuant to s 6(1) of the Costs Act. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Foster and Nicholas.