Srouji v Minister for Immigration & Multicultural Affairs

REASONS FOR DECISION 1 This was an application to review a decision of the Migration Review Tribunal given on 17 September 2001, upon the basis that the Tribunal was said to have erred in refusing to accept the Applicant's application for an Educational Temporary (Class TH) visa. The original application for review was filed by Star Carver & Sons Solicitors of Padstow on 16 October 2001, and an amended application was filed on 19 December 2001. The matter was set down for hearing in the Court on 12 March 2002. 2 When the matter was called on for hearing on 12 March 2002, Mr John Shaw of Counsel announced his appearance for the Applicant, and sought leave to discontinue under Order 22 Rule 2 sub-rule 1(d). By consent, an order was made that the Applicant file a Notice of Discontinuance on 15 March 2002. No objection was raised by Ms Abadee of Counsel for the Respondent to that course being adopted, and properly so. However Ms Abadee informed the Court that the Respondent sought an order for the costs of the proceedings in favour of the Respondent Minister. 3 Mr Shaw explained to the Court that the decision not to proceed with the application had been made by the Applicant, not because of any conceded weakness in the merits of the application, but because of legal advice he had tendered to her, and which the Applicant had accepted, to the effect that the Court no longer had jurisdiction to hear the application because of the then recently enacted privative clause provisions of s 474 of the Migration Act 1958 (Cth). Given the time needed to consider the implications of those provisions, Mr Shaw indicated that there had been insufficient time, in the events which happened, to alert the Minister's legal representatives to cease preparation for the hearing, once the decision not to proceed had finally been made. The written submissions of Counsel for the Minister, provided to the Court on 8 March 2002, foreshadowed reliance upon the privative clause, and those submissions had focused Mr Shaw's attention upon the constitutional problem thereby ventilated at length and by reference to a significant range of authority. Mr Shaw consented on behalf of the Applicant to resolution of the Minister's application for an order as to costs on the basis only that each party should bear her or its own costs (as the case may be). 4 For the reasons appearing in my decision made today in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, which related to an application to review a decision of the Tribunal concerning a business visa, I consider that the written submissions of Counsel for the Minister concerning the scope of operation of the privative clause in the present proceedings were correct. Nevertheless the complexity of the issue would have demanded considerable time and attention of the Court and the parties, if the issue had been fully debated. The authorities, understandably at that time, related to different legislative contexts. 5 Orders for costs of curial proceedings normally follow, of course, the outcome, and there is no doubt that the Minister has a prima facie entitlement to an order for costs in his favour. In the present context however, there was a combination of exceptional circumstances which gave rise to concern on my part as to whether the demands of justice required that there should be no order as to the costs of the proceedings. Recently for instance in Minister for Immigration and Multicultural Affairs v "X" [2002] FCA 386, which was determined in proceedings V427 of 2000 and V428 of 2000 on 8 April 2002, a majority of a Full Federal Court (Lee and Merkel JJ, Black CJ dissenting) found that there was present exceptional, special or unusual circumstances which warranted a departure from the normal order as to costs following the event. It would be rare for such circumstances to be wholly duplicated in subsequent cases. 6 In my reasons for judgment in Huo, I have recorded a number of decisions of this Court relating to the scope of operation of the privative clause, all of which have found in favour of the width of the viability thereof, but none of which had been determined prior to the date for hearing of the present application, which had been scheduled for 12 March 2002. Mr Shaw explained to the Court the predicament in which he found himself as briefed to appear for the Applicant, she being a young woman apparently of limited financial means, in litigation involving novel issues of considerable complexity concerning the scope of the privative clause. His view of his duty to the Applicant and to the Court as Counsel was to advise her as to the apparent adequacy of the terms and scope of the privative clause, and as to the wisdom of discontinuance of an application for review which otherwise, were it not for the recent privative clause legislation, was apparently considered to have possessed some measure of viability or merit. Mr Shaw's judgment as Counsel as to the viability of the privative clause has been in my opinion vindicated by the subsequent trend of authority in this Court which I have traced in Huo. 7 It has been in my opinion the unfortunate experience of judges of this Court to preside over the determination of many applications for review of Tribunal decisions which have had little or no prospects of success quite apart from the recently introduced privative clause, and where one has cause to wonder whether the applicant has engaged in the pursuit merely of an extension of time in which to remain in Australia before his or her inevitable departure. Grounds of review in unspecific terms are often inserted in the application for review filed by unrepresented applicants without the remotest attempt of the draughtsperson to adapt the same to the circumstances found by and the reasoning of the Tribunal. I am clearly of the opinion that the present case, involving as it has the spontaneously frank approach of counsel briefed on behalf of the Applicant to the prospects of success in the light of the privative clause, and consequential obviation of the ongoing time and cost, directly and indirectly, of the Applicant remaining in Australia for a considerable period of time pending the final resolution of otherwise contested proceedings and possibly a reserved judgment, ought to be recognised in an appropriate way, in the exercise of the Court's discretion. I therefore propose to accede to the Applicant's submissions and make no order as to costs of the proceedings. In so doing, I am not conscious of setting in train an unruly precedent for the future, since as I have stressed, the circumstances here involved have been largely unique, and the outcome as to costs which I have in mind is warranted as a matter of justice at the particular time and in the particular context when the issue arose before me, and as a measure of the frankness of the Applicant and of her Counsel. 8 In adopting the course which I have taken, I think that there is a certain degree of analogy between the circumstances in this case, where the taking into effect of privative clause legislation occurred after the Applicant had lodged her application to the Court for review of the Tribunal decision, and those described by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 at 625: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases (7)." Although I formed no view on the prospects of the Applicant succeeding on the application for review of the Tribunal decision below, absent the enactment in the meantime of the privative clause, the fact is that the pursuit of the application became in any event in my opinion futile, once the enactment took place. 9 I therefore make no order as to the costs of the discontinued proceedings. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.