SPCB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This application was discontinued by leave given on 18 December 2003. At the time the applicant was ordered to pay the costs of the respondent of the application. The respondent also sought an order that the solicitor for the applicant pay the costs of the application up to and including 24 October 2003, or alternatively for the period from 26 June 2003 (being two months after the filing of the application) up to and including 24 October 2003. 2 I have considered the matters which should guide the Court in the exercise of its power to make an order such as that sought in Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 18 at [4-17] (Kumar). I will not repeat them in this judgment. I will be guided by those considerations in considering the present application. 3 In this matter, I have come to the view that the solicitor for the applicant should be ordered to pay the costs of the respondent of the application up to and including 24 October 2003. The application was commenced on 23 May 2003. On 24 October 2003 the respondent applied by motion to have the application summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules on the ground that no reasonable cause of action is disclosed in the application. There is a reason for the relative inactivity in the conduct of the matter between 23 May 2003 and 24 October 2003, concerning the procedures by which the Court adopted to expedite the fair and expeditious hearing of a significant number of matters remitted to the Court for hearing by the High Court involving issues between visa applicants under the Migration Act 1958 (Cth) (the Act) and the Migration Regulations and the respondent, and matters instituted in this Court of the same nature. Those reasons are more fully set out in the reasons for judgment in Kumar at [30-32]. The delay itself in the progress of the matter over that five month period is of no particular significance to the present application. 4 It is, however, appropriate that I explain why I have reached the view expressed above. 5 The applicant is a national of India who arrived in Australia on a Student visa. Shortly before the expiration of that student visa, on 23 February 2001, he applied for a Protection visa under the Act. It is not necessary to explore the grounds upon which he did so. On 27 March 2001 a delegate of the respondent refused the grant of that visa. He then sought review of that decision by the Refugee Review Tribunal (the Tribunal) by application made on 26 September 2001. That was almost six months to the day after the decision of the delegate refusing to grant him the visa. 6 Section 412(1)(b) requires an application for review of such a decision by the Tribunal be given to the Tribunal within a prescribed period, being a period ending not later than 28 days after the notification of the decision. There is a complex series of provisions in the Act and the Regulations dealing with the means of notification of decisions of the delegate. As the Tribunal found (and it has not been suggested to have been erroneous in any respect in that regard), for the purposes of the Act and the Regulations, the applicant is deemed to have been notified of the delegate's decision on 3 April 2001. The time within which notice or application to the Tribunal should have been given as provided for under s 412(1)(b) therefore expired on 1 May 2001. 7 In those circumstances, it is not surprising that the Tribunal found that it did not have jurisdiction to review the decision of the delegate refusing to grant to the applicant a Protection visa under the Act, because the review application was received by the Tribunal outside the mandatory time limit. The Tribunal had no jurisdiction to extend that time or to review the delegate's decision under any other provisions. Its decision was made on 26 November 2001. 8 On 23 May 2003 the present application was made. It asserts that the applicant was notified of the decision that is the subject of this application on about 27 November 2001. It seeks orders only against the respondent. One of those orders is appropriately directed to the respondent: to prohibit her from acting upon, or giving effect, to the Tribunal's decision. If standing alone, the consequence would be that the respondent should therefore give effect to the delegate's decision and treat the applicant as having failed in his application for a Protection visa in any event. The application also seeks an order directing the respondent to appoint a member of the Tribunal to re-hear and re-determine the application for a Protection visa according to law. That is not appropriate. If the Tribunal declined to exercise jurisdiction in circumstances where it properly had jurisdiction, the proper order is one directed to the Tribunal to hear and determine the matter according to law. It is not one directed to the respondent. The grounds of the application also appear inappropriate having regard to the nature of the Tribunal's decision. It is asserted that the Tribunal failed to accord procedural fairness to the applicant in connection with the making of the decision, that it erred in law (in an unspecified way), that it did not comply with procedures required by law to be complied with in connection with the making of the decision, that its decision was an improper exercise of power, that there was no evidence to justify the making of the decision, and that the decision was contrary to law. Those grounds seem to be taken to some degree from the grounds of judicial review available under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (where review under that enactment is available). Review under that enactment is not available in respect of a decision of the Tribunal. Indeed the application itself accepts that. It is based upon s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth), that is the residual jurisdiction reserved to the Court under s 475A of the Act. 9 There is nothing in the application which seems to be directly related to the reasons why the Tribunal determined that it did not have jurisdiction to hear and determine the application. Nor is there anything in the affidavit filed with the application (purportedly in accordance with O 4 r 6 of the Federal Court Rules) which gives any hint of the grounds upon which the application is made. It simply annexes a copy of the Tribunal's decision. 10 Following the service of the notice of motion of 24 October 2001, it would appear that the solicitor for the applicant then gave certain advice and the applicant, in the light of that advice, gave instructions for the application to be discontinued. Nothing has been put forward to suggest that any other cause for the discontinuance exists. In those circumstances, it seems to me, the solicitor for the applicant seriously failed to give reasonable attention to the relevant law and facts prior to the institution of the application. The course of events would indicate that, had such attention been given to the law and the facts prior to the institution of the application, the instructions following the motion to dismiss the proceedings would have been given at an earlier time and the proceedings would not have been instituted. Consequently, the costs incurred by the respondent in relation to the proceedings up to and including the notice of discontinuance would not have been wasted. 11 It is of course important to recognise that costs should not be ordered against a solicitor for a party simply because a proceeding is unsuccessful or has been discontinued. It is necessary to discern a serious failure to give reasonable attention to the relevant facts and law, so as to discern whether the solicitor has been in serious dereliction of duty. There is no matter identified, nor apparent from the course of events, which would indicate that there was any pressing urgency in the institution of the proceedings. The Tribunal's decision was given on 26 November 2001 and the application was not brought until some 18 months later. There is nothing to indicate that attention should not have been given to the facts and the law prior to the institution of the proceedings, and advice given at that time. The conduct of the matter, and in particular its discontinuance when it would appear that instructions were given in the light of professional advice, further indicates that the application was not issued on specific instructions and in the light of or in the face of appropriate advice having been given at the time. 12 Accordingly, in my judgment this is one matter in which the conduct of the solicitor in the institution of the proceedings can be discerned to have been a consequence of a serious failure to give reasonable attention to the relevant law and the facts at the time the proceedings were instituted. There is no sufficient reason why that attention was not given. And, on the basis of the course of events and in the absence of other material, had such advice been given the application would not have been made. Consequently, the gravely delictual conduct of the solicitor for the applicant has led to the respondent incurring costs which she would not otherwise have incurred. I accordingly propose to make an order as requested by the respondent that the solicitor for the applicant also be liable to the respondent for the costs of the application up to and including 24 October 2003. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.