Susaki v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This judgment concerns costs. The substantive issues raised in the proceedings have either been dealt with or have been rendered moot by other events and circumstances. Nonetheless it is necessary to briefly recount the history of the proceedings. 2 On 3 April 1996, the applicant applied for a subclass 805 visa in conjunction with a supporting employer nomination lodged by the Hyatt Kingsgate Hotel. Two relevant criteria for the grant of such a visa were: · At the time of the visa application, the applicant has been nominated by an employer in respect of an appointment in the business of that employer. · At the time of decision, the employer nomination has been approved. 3 The application was initially refused on the basis that the employer nomination had not been approved primarily because the position for which the applicant was nominated was found not to be a "highly skilled position" in that it did not require 6 years training. The Migration Internal Review Office affirmed that refusal. The applicant subsequently applied to the Migration Review Tribunal for a review of that decision. After the initial application had been lodged, the management and name of the hotel where the applicant was employed changed. The presiding Tribunal member indicated that there would be a need to show continuity of support from the applicant's nominator. The applicant subsequently lodged a fresh employer nomination. 4 On 24 July 1998 the Tribunal affirmed the decision not to grant the applicant a subclass 805 visa. The basis of the Tribunal's decision was, essentially, a finding that the applicant did not hold a substantive visa at the time of application and a further finding that this failure was not a result of factors beyond her control. At that time one of the criteria prescribed by the Migration Regulations for the grant of a subclass 805 visa was that if an applicant had ceased to hold a substantive visa, the Minister had to be satisfied that that was because of factors beyond the applicant's control. The applicant's previous visa had expired days before her application for the subclass 805 visa had been lodged. 5 On 24 August 1998 the applicant filed in this Court an application for an order of review. The proceedings focussed to a large extent on the circumstances in which the applicant had allowed her previous visa to expire before lodging the subclass 805 visa application. In particular the proceedings focussed on what role the applicant's then migration agent had played in the failure to lodge the application within time. The applicant succeeded in her application in this Court. On 10 March 1999 Lehane J ordered that the decision of the Tribunal be set aside and that the applicant's visa application be remitted to the Tribunal for rehearing and decision. The basis on which the decision was set aside was that procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were not observed. In particular his Honour found that the applicant had not been notified of her right to appear before the Tribunal and present arguments relating to the issues arising in relation to the decision under review: see Susaki v Minister for Immigration & Multicultural Affairs [1999] FCA 196. 6 On 11 March 1999 the applicant's solicitor wrote to the Tribunal referring to the decision of Lehane J and suggesting that it was an appropriate case for the matter to proceed on the papers. More than sixteen months later, on 29 September 2000, the Tribunal published its decision. The Tribunal's findings were as follows: "The applicant has been employed continuously in the same position since March 1994. She is an Assistant Manager with the duty of assisting the manager with promotions and training. In January 1998 her employer changed. She had previously worked for the Hyatt Kingsgate Hotel but Hyatt International relinquished management to CDL Hospitality Management Services and it became the Millenium Hotel from January 1998. On 28 January 1998 the Training Manager of the Millenium Hotel submitted a form 785 employer nomination to the Tribunal (folio 76 I1). This nomination has never been considered by the Department and there is no decision on it. The Tribunal is now in the position of having been ordered by the Federal Court to review a decision which, in my view, it has no jurisdiction to review for the reasons set out in PMA 2/2000. The decision which I am required to review was made in relation to an employer nomination which is now obsolete and has been replaced by a nomination from the visa applicant's current employer. In all the circumstances it seems the only course open to me is to remit the nomination dated 28 January 1998 (folio 134 T1) to the Department for consideration. FINDINGS I find that the late lodgement of the visa applicant's application following the expiration of her substantive visa was due to circumstances beyond her control and she satisfies condition 3004. I find that the employer nomination which was the subject of the decision which gave rise to this application for review is no longer current. It has been replaced by a nomination dated 28 January 1998 on which there has not been a primary decision to form the basis of a review. (It is not necessary for me to decide at this time whether there would be a right to review such decision). DECISION The Tribunal remits the application to the Department to consider the employer nomination at folio 76 of I1." 7 That decision reflected a particular view of the Tribunal's jurisdiction found in the Department of Immigration and Multicultural Affairs' Procedures Advice Manual 3. The view expressed in the Manual, and in particular PMA 2/2000, was that the decision whether to grant a subclass 805 visa and the decision whether to approve an employer nomination lodged as part of the application for such a visa, are separate decisions in relation to which separate review applications must be made. Review of a decision to refuse an applicant a subclass 805 visa would not automatically involve review of a decision not to approve an employer nomination made in support of the relevant visa application even though a decision adverse to an applicant on the employer nomination might, in practice, be the primary and operative reason for refusing the visa application itself. In addition PMA 2/2000 stated that there was no right to review by the Tribunal of employer nominations refused before 1 July 1999. 8 On 6 March 2001, the delegate to whom the Tribunal remitted the employer nomination of 28 January 1998 decided as follows: "Having been directed by the MRT to consider the Employer Nomination I must do so, however I make the following findings in relation to the nomination. Firstly, the nomination has not been lodged with DIMA. According to regulation 2.10 all parts of an application for a visa must be lodged with the department. Furthermore, in relation to the fee payable, Regulation 5.37 prescribes that the fee payable in respect of an employer nomination to which subregulation 5.19 (2) applies is $270 and must be paid at the time the nomination is lodged. No fee has been paid in respect of the employer nomination dated 28 January 1998 and now remitted for consideration. It is my finding that the second Employer Nomination has not been validly made. In the second place the requirement for a nomination by an employer is a time of application requirement. The nomination by an employer at time of application was that made by the Hyatt Kingsgate Sydney. At time of application the applicant was not nominated by Kingsgate Investment P/L "the Millenium Hotel." It is not possible to now change what happened at time of nomination by substituting one nomination for another almost two years after the visa application was lodged. I have considered whether it might benefit the application if I were to request the appropriate fee at this time and then find that the form and fee having been lodged with DIMA that the Employer Nomination is taken to have been validly made (on that day). However, I find that this could not now assist the primary visa application, given the nomination is a criterion which must be satisfied at time of application. … The applicant does not meet the criteria for a visa in the General (Residence) (Class AS) subclass 805 (Skilled). 9 On 26 March 2001, the applicant filed in this Court a notice of motion essentially seeking a declaration that the Tribunal had, to that point, failed to comply with the order of Lehane J to rehear and decide the applicant's application for a Subclass 805 visa and seeking to compel the Tribunal to comply with the order. An amended notice of motion was filed on 19 April 2001 and a further amended notice of motion on 30 April 2001. In its final form the notice of motion sought the following orders: "1. Declaration that the Migration Review Tribunal (formerly the Immigration Review Tribunal) has so far failed to rehear and determine the subclass 805 visa application of the Applicant as ordered by this Honourable Court on 10 March 1999. 2. Declaration that the Migration Review Tribunal (formerly the Immigration Review Tribunal) was in contempt of the Court in declining to proceed to rehear and decide upon the subclass 805 visa application of the Applicant as ordered by this Honourable Court on 10 March 1999. 3. That the Migration Review Tribunal purge its contempt. 4. In the nature of Certioari that the record of the Migration Review Tribunal in proceedings No. A99/01024 dated 29 September 2000 be removed to the Court to be dealt with by the Court according to law. 5. Further or other orders. 6. Costs on an indemnity basis against the second Respondent." 10 I heard argument on the motion on Friday 4 June 2001. The submissions of both sides focussed on whether, in remitting the question of the employer nomination or the entire application to a delegate (a matter which was in itself the subject of debate), the Tribunal had effectively failed to comply with the orders of Lehane J and whether, if that was the case, this Court had power to grant declaratory relief or find that the Tribunal had been in contempt. There was also argument about whether the decision of the Tribunal was a decision amenable to judicial review such that if the applicant had believed the decision involved an error of law, the proper course was to have made application for review in this Court. At the time the notice of motion was filed, the time for filing such an application had long expired. 11 On 2 April 2001, after the motion had been filed but before the hearing on 4 June 2001, the applicant lodged an application for review by the Tribunal of the delegate's decision of 6 March 2001. The applicant submitted that this was done out of an abundance of caution and not as an alternative to the notice of motion. Any review by the Tribunal of the delegate's decision, given the nature of that decision, was not, it was said, guaranteed to bring before the Tribunal all the issues necessary to resolve the applicant's visa application. Also in the same period a judgment was given by Goldberg J (on 4 April 2001) in Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375. In that judgment his Honour concluded that the view of the Act and Regulations expressed in PMA 2/2000 was incorrect. His Honour found: "The structure of subclass 805 and its inter‑relationship with reg 5.19 [the regulation which provides the criteria for the approval of an employer nomination] leads me to the conclusion that a review of a decision to refuse a visa under that subclass involves, and requires, a review of the matters provided for in reg 5.19. What is significant is that recourse to the provisions of that regulation must be made in order to determine whether the criteria provided for in subclass 805 have been satisfied. The structure of the Regulations at the relevant time indicates that when making a decision in respect of a General (Residence) (Class AS) subclass 805 (skilled) visa application, the decision maker was required to consider the criteria contained in subclass 805 which then referred the decision maker to the provisions of reg 5.19. There are references to reg 5.19 throughout subclass 805, relevantly, in cl 805.213(3) in relation to criteria to be satisfied at the time of the application, and cl 805.222 in relation to the criteria to be satisfied at the time of the decision. Regulation 5.19 prescribes requirements which are to be met by an employer nomination in order for the appointment to which it relates to qualify as an approved appointment for the purpose of subclass 805. Regulation 5.19 cannot stand, and should not be looked at, in isolation. Regulation 5.19 does not have a life of its own independently of subclass 805. Recourse is only made to it for the purpose of determining whether particular provisions of subclass 805 have been satisfied. If a decision is not to be made under subclass 805, reg 5.19 lies dormant. … The Regulations do not provide for a separate and distinct process of determining whether an employer nomination should be accepted. Rather, reg 5.19, in its language, provides a dictionary and definitional provisions for the purposes of subclass 805. Regulation 5.19(1) states: 'A proposed appointment is an approved appointment for the purpose of those Regulations if …'. Reg 5.19(2) states: 'An employer nomination meets the requirements of this subregulation if …' Reg 5.19(4) states: 'An employer nomination meets the requirements of this subregulation if …' Although regs 5.19 and 4.02 have been amended to provide for the making of a separate decision by the Minister in relation to the approval of employer nominations and for review of the Minister's decision, at the relevant time reg 5.19 did not provide for the making of a separate decision by the Minister and there was no provision for separate review of the matters contained in reg 5.19. At the relevant time, there was only one decision to be made in relation to the grant of the visa, being whether the criteria contained in subclass 805 were satisfied. The only relevance of an employer nomination was to satisfy one of those criteria. It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker's findings or conclusions which contribute to the final or operative decision: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 per Mason CJ. The application of this principle to the Tribunal's decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant's visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg 5.19. I am satisfied that the Tribunal had the power to consider the reg 5.19 issues as part of its review of the decision to refuse the visa application. The Tribunal fell into an error of law by failing to turn its mind to whether the visa criteria were satisfied by reference to the reg 5.19 definitions. The Tribunal precluded itself from considering the reg 5.19 issues by misconstruing the regulations and determining that there was no right of review in respect of employment nominations before 1 July 1999." 12 At the conclusion of the argument on 4 June 2001, the parties accepted, particularly having regard to the judgment of Goldberg J, that the preferable course was for me to stand the matter over generally and await the outcome of the review application before the Tribunal, including any appeal from its decision, before giving further consideration to the issue of whether the Tribunal had failed comply with the order of Lehane J. I reserved on the questions of costs. 13 On 8 February 2002 the Tribunal handed down its decision. The Tribunal reasons contained the following passages: "As a result of the decision in Tvarkovski the Tribunal is able to review the decision in relation to the original nomination. Previously because the nomination was lodged by a separate form and assessed independently by another section of the Department before the visa applicant was processed, it was considered to be a completely separate decision, assessed against separate criteria and therefore not reviewable as part of the review of the visa application. In practice this often meant that the review of the visa application was not substantive merits review since the reason for the refusal was the refusal of the nomination. … As this case [Tvarkovski] was decided after the last Tribunal decision, the review by this Tribunal will, for the first time in this application, include a review of the decision to refuse the Employer Nomination for the position of Assistant Manager by Kingsgate Investments Pty Ltd. … Although the Tribunal is reviewing a decision by the delegate not to consider a second Nomination on the ground that it was not validly made, the Tribunal considers that for the purposes of this review, and in order to afford the visa applicant full merits review in accordance with Tvarkovski's case, it is the first nomination that should be the subject of this review. … This case has been under consideration since 1996 and over the period of time the circumstances of the visa applicant and the nature of the employment have changed. However as discussed above the Tribunal does not find these changes so substantial as to render the original application or Employer Nomination outdated or irrelevant. Unlike previous Tribunals, this Tribunal has been in a position to conduct a full merits review of the case including the Nomination by the employer. It finds the requirements for the appointment to be an approved appointment have been met, notwithstanding the changes referred to above. The Tribunal is satisfied that the fundamental requirement that a highly skilled position in restaurant management is still available to the visa applicant and that the employer is the same owner of the establishment, in spite of changes to the name and management of the hotel, is met. Given the findings and observations made above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria." 14 The Tribunal's decision effectively rendered moot the issues raised in the applicant's most recent application save for the question of costs. The parties were unable to reach agreement on that matter. The applicant submitted, essentially, that costs should follow the event and as the applicant ultimately achieved the outcome she had approached the Court to secure (a visa), she was entitled to her costs. Counsel for the Tribunal submitted that it was appropriate the each party bear its own costs. 15 I turn now to consider what order should be made in relation to costs. The starting point is to identify the applicable principles. That is, the principles to be applied when proceedings are resolved other than by Court adjudication but where the parties cannot agree on what orders, if any, should be made in relation to costs. I had occasion to consider them comparatively recently in Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641. In that judgment I said at [11] to [12]: "Section 43 of the Federal Court of Australia Act 1976 (Cth) confers on the Court a broad discretionary power to order that a party pay the costs of another party, though the power must be exercised judicially. In matters such as this one, where the substantive issues raised by the proceedings have been resolved without a hearing on the merits, it will rarely be appropriate for a Court to determine the merits of the dispute solely for the purpose of deciding any outstanding issue of costs, (see: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194). In that matter, after a review of the relevant authorities, Hill J identified five propositions emerging from the case law. Only the first four propositions are presently relevant, they are as follows: '(1) Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford and the SEQEB case. (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceedings should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (SEQEB). (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371. (5) …' These propositions, as Cooper J commented in Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772 at 774, represent a guide rather than an exhaustive list of the matters which may be taken into consideration in the exercise of the discretion to order costs under s 43. More recently, in Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622, McHugh J made the following comments about the discretion to order costs in matters resolved without a hearing on the merits: 'In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. 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.' A survey of cases where these broad principles have been applied reveals that, although the particular facts and circumstances of each case are of paramount importance, frequently the determining factor is the reasonableness of the parties' conduct, (see for example Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284, Reddy v Hughes (1996) 37 IPR 413 and Emerald Properties Pty Ltd v Chan Unreported, Heerey J, 15 December 1993). Another important consideration will often be the circumstances under which the substantive issues in the proceedings were resolved. In ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270, Burchett J made the following observations: 'In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.'" 16 The issue of costs in Re Minister for Immigration and Ethnic Affairs and Anor; ex parte Lai Quin (1997) 186 CLR 622 arose in circumstances not dissimilar to the present. Proceedings were commenced in the High Court against the Minister and the Refugee Review Tribunal pursuant to section 75(v) of the Constitution, seeking the issue of constitutional writs on the grounds that the Tribunal had misconstrued or exceeded its jurisdiction. Before the matter was addressed by the High Court, the Minister exercised his discretion under section 417 of the Migration Act 1958 (Cth) and granted the applicant a protection visa. Having obtained the visa, the applicant no longer wished to proceed with her action, however, she sought costs of the proceedings to that date. 17 Counsel for the Tribunal referred to a further authority where Davies AJ in the Supreme Court of New South Wales was asked to make an order for costs in circumstances where contempt proceedings had been brought but ultimately not pursued because the parties agreed to resolve the point of difference by alternate means. In McKensey v Hewitt [1999] NSWSC 685, Davies AJ concluded at [15] to [16]: "I have to take into account principally two things. One, that the motion for contempt was misconceived. The second is that this was a proper matter to bring before the Court so as to progress it. There was an issue between the parties, the parties could not resolve it, an order of a judge was required. Having regard to the totality of those circumstances I think the proceedings have achieved real progress in the sense that they have achieved an agreement between the parties as to how this matter will go forward. I am of the view that that result was worth the bringing of the proceedings and, notwithstanding that they were wrong in form, I must take that into account. I think the fairest thing is in the result that each party should pay his or her own costs of the motion." 18 I should refer to one other authority. On 12 July 2002 Finkelstein J gave judgment concerning costs in a matter where the parties had settled: We Two Pty Ltd v Shorrock [2002] FCA 875. The settlement took place on the second day of the hearing. By then, his Honour had heard sufficient evidence, having regard to the issues, to have formed a preliminary or tentative view about the outcome of the proceedings. Finkelstein J noted the usual result in relation to costs in cases where there was no trial on the merits namely, the court would make no order as to costs. His Honour also noted that this general rule, as he described it, could be departed from if either party had acted unreasonably in bringing or defending the proceeding. His Honour also said: "Further, if the judge is in a position to form a view about the merits of the dispute without the close examination of a case that follows the trial, that may also be relevant to determining whether or not the usual rule should be applied." 19 His Honour ordered the respondents in that matter to pay one half of the taxed costs of the applicant because he had formed a tentative view, in the applicant's favour, about the merits of the case. 20 In the present matter, counsel for the Tribunal advanced several arguments, at the hearing on 4 June 2001, resisting the orders the applicant sought. They included a submission that the allegation of contempt was misconceived. First the Tribunal had the same protection as a judge of the High Court (s 373 of the Migration Act when read with s 60 of the Administrative Appeals Tribunal Act 1975 (Cth)) and could not commit a contempt and, in any event, the order of Lehane J had been complied with by the Tribunal. It is possible (though by no means certain) that had it become necessary to adjudicate on the issues, I would have found in favour of the applicant on the second point. That is, I may have found that the Tribunal did not comply with his Honour's order. Though I do not now suggest on the basis, I should add with some emphasis, that the Tribunal had contumatiously defied the Court's order. 21 As to the first point, it is possible for a judge of a court (and by analogy a member of an administrative tribunal upon which a statute has conferred the same immunities as a judge) to be in contempt, though the circumstances are limited and, speaking somewhat loosely, they arise when the judicial officer is not discharging a judicial function: see Sirros v Moore [1974] 3 All ER 776 at 785 (as to judges of inferior courts), Yeldham v Rajski (1989) 18 NSWLR 48 at 58 and 67-69 and Wentworth v Wentworth (1999) 46 NSWLR 300 at [29] to [47]. Ultimately the scope of s 373 and the protection it affords is a matter of construction: see Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719. In an appropriate case, it may be necessary to consider whether that or an analogous provision, was intended to render immune a member of an administrative tribunal who wilfully defied a court order to deal with a matter in a particular way if his or her duty was to do so. 22 However in the present case, after the argument on 4 June 2001, I was not left with any real impression that the applicant was likely to succeed in either establishing contempt or on any other basis. While it is true that, as a practical matter, the applicant has achieved what she set out to achieve more broadly (securing a visa), that does not really answer the question of whether there was a real prospect she would have succeeded in the proceedings before me. While it is difficult to avoid having considerable sympathy for the applicant having regard to the tortuous path she had to follow to secure her visa, it is necessary for me to resolve the costs issue by the application of established principle. On that basis, it is inappropriate that any order for costs be made other than that each party pay their own costs of the notice of motion filed 26 March 2001. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.