Minister for Immigration, Citizenship and Multicultural Affairs v Pulini

Minister for Immigration, Citizenship and Multicultural Affairs v Pulini - [2024] FCA 1250 - FCA 2023 case summary — Zoe

[3]

Statutory framework 4 Section 6 of the Costs Act relevantly provides that: 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. … (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. 5 Section 3(g) of the Costs Act defined a "Federal appeal" to include an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal (which has been replaced by the Administrative Review Tribunal). 6 There is no presumption in favour of the grant of a costs certificate under s 6(1) of the Costs Act: see Sims v Chong (No 2) [2015] FCAFC 163 at [7]. 7 A number of relevant considerations were summarised by the Full Court in Minister for Immigration and Border Protection v MZZMX and Anor (No 2) (2020) 385 ALR 283; [2020] FCAFC 214 at [6]: The discretion conferred by s 6(1) is a broad one. Relevant considerations include: (a) whether there are any matters which would disentitle the respondent to the issue of a certificate, such as the conduct of the respondent in respect of the litigation and any prejudice thereby occasioned to the appellant; (b) whether the respondent is an individual or a well-resourced company or government entity; (c) whether the decision on the appeal was significant beyond the particular case and had wider importance or relevance to the administration of the Migration Act 1958 (Cth); (d) whether it would have been unreasonable or unrealistic to expect the respondent to have undertaken the burden of the appeal without legal representation; and (e) whether the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visa pursuant to Sch 4, item 4004 of the Migration Regulations 1994 (Cth). (Citations omitted.)

[4]

The parties' submissions 8 The respondent relies on the following factors to demonstrate that a costs certificate should be granted: First, the questions of law raised by the appeal resolved issues of wider importance that will be relevant to the Minister's administration of the Australian Citizenship Act 2007. In particular, the Court held that: (a) When considering whether the person's citizenship should be revoked in the exercise of the discretion in s 34(2), the decision-maker is bound to take into account the matters in paras (a), (b) and (c) of s 34(2): Reasons at [57]. (b) Contrary to the Minister's submissions, the purpose of s 34(2) of the Citizenship Act does not extend to revoking the citizenship of a person who is not "worthy" or not "deserving" of Australian citizenship and that is not a matter required to be taken into account by the decision-maker: Reasons at [76]. (c) When considering the residual discretion in s 34(2), the decision-maker may consider matters that were not taken into account when considering the public interest, including detriment, or the potential for detriment, to the person or other individuals resulting from revocation of the person's citizenship: Reasons at [85]. The Court's Reasons will provide substantial guidance for future decision-makers acting under s 34(2). This is a consideration that weighs in favour of the grant of a costs certificate: Melnik v Melnik [2005] FCAFC 207, [14]. Second, having regard to the nature of the questions of law in the appeal, it was appropriate for the Respondents to engage legal representation to respond to the appeal. The Minister was represented by Senior Counsel and Junior Counsel and the issues involved a degree of complexity. In Minister for Immigration and Border Protection v Kaur (No 2) [2015] FCA 748, for example, Yates J observed that, having regard to the question of law involved, it would have been unrealistic to expect the respondent to undertake the burden of the appeal without legal representation and that such representation was "not only a benefit for [the respondent]. It was also a benefit for the Court in having an argument presented in proper adversarial form" (at [9]). It is submitted that the same may be said here. Third, it is submitted that there are no matters that would disentitle the Respondents to a costs certificate. In Kaur (No 2) (above), this was accepted as a factor relevant to the discretion. 9 The Minister submits that, "it is ultimately a matter for the Court to be satisfied that it would be appropriate for a costs certificate to be issued".

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (4)

Cases Cited (8)