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[2002] FCA 1229
Federal Court of Australia
2002-10-03
Stone J
Original judgment source is linked above.
Background 11 The background to this proceeding is a long and sorry saga of delay and incompetence. For present purposes it is only necessary to provide a summary of the background. A more detailed account can be found in the judgment of the primary judge at [2002] FCA 1007 and in the judgment of Lehane J at [1999] FCA 196. 12 On 3 April 1996, the applicant applied for a subclass 805 visa in conjunction with a supporting employer nomination ("first employer nomination") lodged by the Hyatt Kingsgate Hotel. A condition of the grant of such a visa was that the applicant must have been nominated by his or her prospective employer and the nomination must have been approved. The application was refused on the ground that the employer nomination had not been approved and the refusal was affirmed by the Migration Internal Review Office. 13 The applicant then applied to the Migration Review Tribunal ("Tribunal") for a review of that decision. After the application had been lodged, the applicant lodged another employer nomination ("second employer nomination") necessitated by the fact that the management and the name of the hotel where she was employed had changed. The Tribunal refused the application although on the different ground that the applicant did not meet the requirement of criterion 3004 in Schedule 3 to the Migration Regulations in that she did not have a valid visa at the time of the application and that this failure was not the result of factors beyond her control. The applicant's previous visa had expired on 25 March 1996, some 9 days before her application for the 805 visa was lodged. 14 The applicant sought review of the Tribunal's decision in this Court. In his reasons for decision, [1999] FCA 196, Lehane J explained the circumstances in which the applicant's previous visa expired (at [3]): "Ms Susaki held a "substantive visa" which expired on 25 March 1996. Some months before that, she instructed a migration agent, Mr Richard Lieu, to assist her with her application for a special skills visa. To complete the material required by the Department in order to consider her application, she needed a form signed by an officer of the Commonwealth Employment Service (CES). In circumstances which do not matter, that form was received by Ms Susaki's employer only on Friday, 22 March. All of the other material required by the Department was then ready for lodgement. When Ms Susaki telephoned Mr Lieu during the afternoon of 22 March to tell him that the CES form had arrived, Mr Lieu informed her that the Department had already closed for the afternoon. It was arranged that Ms Susaki would bring the CES form to Mr Lieu's office on the morning of Monday, 25 March." 15 As arranged, Ms Susaki brought the CES form to Mr Lieu at 10.30 am on 25 March. Because of her work commitments she was unable to deliver them to the Department of Immigration herself. Mr Lieu asked her if she would be prepared to pay for a courier to deliver the documents or would she prefer them to be sent by post. It was common ground between the applicant and Mr Lieu that he did not suggest that there was any particular reason for preferring a courier and the applicant elected to have the documents sent by post. The result was that the Department did not receive the documents until after the substantive visa had expired. In fact they were not properly lodged until 3 April because Mr Lieu had miscalculated the fee required and had sent the wrong amount. 16 The explanation of what had happened put to the Tribunal did not convince it that Ms Susaki's visa had lapsed in circumstances beyond her control. Mr Lieu was given an opportunity to make further submissions. The submission he made was described by Lehane J as "long, discursive and … largely irrelevant" and "failed to address the problem that all the material required for a complete application was in Mr Lieu's hands on 25 March and could have been delivered that day." His Honour continued (at [11]), "What the Tribunal was not told was that a reason (perhaps the reason) why the application was not delivered on time was that Mr Lieu had not suggested to Ms Susaki that there was any need to adopt a means of delivery which would ensure that it got to the Department on 25 March; indeed, on his own version of what was said, he put the matter to her in terms calculated to ensure that she did not understand that there was any urgency about it." 17 Lehane J concluded that Mr Lieu had a conflict of interest in the submissions he made to the Tribunal but was not satisfied that his actions were fraudulent. His Honour found however, that the procedures required by the Migration Act 1958 (Cth) ("the Act") to be observed in the making of the decision were not observed and consequently that the Tribunal had fallen into error within s 476 of the Act (as it then was) and ordered that the decision of the Tribunal be set aside and the application be remitted to the Tribunal for rehearing and decision. 18 More confusion followed. The Tribunal published its decision more than 16 months later, on 29 September 2000. The primary judge quoted the following extract from the Tribunal's reasons: "The applicant had 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 he 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 Millennium Hotel from January 1998. On 28 January 1998 the Training Manager of the Millennium Hotel submitted a form 785 employer nomination to the Tribunal … . 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… . 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 … to the Department for consideration." 19 The Tribunal's understanding of its jurisdiction was based on the view that approval or rejection of an employer nomination is a separate decision from a decision whether to grant or reject an application for a subclass 805 visa. This view, then current in the Department and expressed in a Principal Member Advice dated 13 March 2000, was later rejected by Goldberg J in Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 ("Tvarkovski"). His Honour held (at [23]) that at the relevant time there was only one decision to be made in relation to the grant of such a visa, namely whether "the criteria contained in subclass 805 were satisfied." His Honour held that the "only relevance of the employer nomination was to satisfy one of those criteria." 20 Given that the decision in Tvarkovski was not handed down until 4 April 2001, more than 6 months after the Tribunal's decision, it is not surprising that applicant did not seek review of that decision of the Tribunal. It should also be noted that, pursuant to the then s 478(1)(b) of the Act, the period in which the applicant could have lodged an application for review of the Tribunal's decision expired on 27 October 2000 and the Federal Court had no power, by virtue of s 478(2), to extend that period or to make any order that had the effect of allowing such an application to be lodged. 21 On 6 March 2001, the Department's delegate to whom the decision was remitted held that the employer nomination criterion must be satisfied at the time of application. Accordingly the applicant did not meet the criteria for a subclass 805 visa because the second employer nomination was not made at the time of application. 22 On 26 March 2001, the applicant filed a notice of motion in this Court seeking the orders which are set out in the reasons of the primary judge as follows: "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 Certiorari 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." 23 Despite filing this notice of motion the applicant, on 2 April 2001 (that is before the hearing of the motion on 4 June 2001), lodged an application for review by the Tribunal of the delegate's decision of 6 March. The applicant's explanation for the application to the Tribunal was that it was done "out of an abundance of caution", the concern being that the nature of the delegate's decision was such that "it was not guaranteed … to bring before the Tribunal all the issues necessary to resolve the applicant's visa application." 24 As indicated at [20] above, the decision in Tvarkovski was handed down on 4 April 2001. In view of that judgment the primary judge, having heard argument on 4 June 2001, stood the matter over generally, with the consent of the parties, to await the outcome of the application before the Tribunal. The Tribunal handed down its decision on 8 February 2002. Following Tvarkovski, the Tribunal reviewed the visa application on its merits and expressed itself to be satisfied, "that the fundamental requirement that a highly skilled position in restaurant management is still available to the visa applicant and the employer is the same owner of the establishment, in spite of changes to the name and management of the hotel, is met."
The Tribunal then remitted the application for the visa to the Department to consider the remaining criteria, which, it said, it was not in a position to decide. 25 The primary judge concluded (correctly in my opinion) that the Tribunal's decision "effectively rendered moot" the issues raised in the application before him except for the question of costs. His Honour considered in some detail the authorities in relation to costs where there has been no trial on the merits and decided that he should dismiss the application making no order as to costs. He did so on the basis of the principles he had outlined in Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 namely, that in cases where there has been no trial on the merits the Court would usually make no order as to costs. Although his Honour accepted that if one party had acted unreasonably in bringing or defending the proceeding then a costs order may be made against that party, he did not think that the circumstances in this case warranted a departure from the usual position.
Whether there is any utility in granting extension of time 26 The delay of some 8 days in seeking to appeal Moore J's decision is not a significant obstacle to my giving the applicant the leave she seeks. As previously noted the respondents have not claimed that they have been prejudiced by the delay. In my view the outcome of this application depends on my assessment of whether there would be any utility in giving the applicant leave to appeal. 27 The applicant's submissions relied heavily on the observation of Burchett J in One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 at 552 - 523 where his Honour said: "It is accepted that, in a case which terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial … But this does not mean that the Court can never make an order for costs. Often, it will be unable to do so; but in other cases an examination of the reasonableness of the conduct of the parties, respectively, may provide the basis of an order… 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." [emphasis added] 28 The applicant's solicitor submitted that the applicant should be awarded her costs because the second respondent "surrendered" to her by its decision of 8 February 2002 when it abandoned the position that was expressed in its decision of 29 September 2000 and followed the approach laid down in Tvarkovski. It was submitted that, although the primary judge correctly stated the relevant principles, he was in error in failing to treat the Tribunal's actions as a surrender. It was also submitted that the primary judge erred in the way he assessed whether the applicant would have succeeded before him. 29 In my view these submissions cannot be accepted for the reasons expressed by counsel for the second respondent, Mr Williams SC. Mr Williams pointed out that the notice of motion considered by the primary judge sought "an exercise of judicial power" in the form of declarations and other orders. The applicant did not need to pursue those orders because she obtained a "favourable exercise of the executive power". As the primary judge observed the effect was, except for the issue of costs, to render "moot" the issues raised by the applicant. The claims made by the applicant were based on an alleged contempt by the second respondent. There was no surrender to this allegation. The fact that she did not wish to pursue these claims because she achieved her object in another way does not amount to a surrender to the contempt allegations. 30 In my opinion the primary judge correctly stated the relevant principles and applied them in a proper exercise of his discretion and it would serve no purpose to grant an extension of time in which to file a notice of appeal. 31 One can have great sympathy with the applicant's dissatisfaction with the handling of her visa application at many levels. She was badly served by her migration agent who appears not to have advised her as to the urgency in the delivery of her application. The extraordinary response of the Tribunal to Lehane J's orders caused delay and confusion. If the Tribunal was of the opinion that Lehane J had erred in ordering it to review a decision that it had no jurisdiction to review, the proper response was not to disregard the Court's orders but for the first respondent to bring an appeal against those orders. The Tribunal was not justified in electing to follow the advice of the Principal Member rather than the orders of this Court. However, as Mr Williams submitted, the applicant's response to the Tribunal's actions has largely compounded the problem. The applicant did not seek review of the Tribunal's decision but, passively at least, acquiesced in the approach. The allegation of contempt by the Tribunal seems to have been made in ignorance of the combined effect of s 373 of the Actand s 60 of the Administrative Appeals Tribunal Act 1975 (Cth) which provide Tribunal members, in the performance of their duties, with the same immunity as a justice of the High Court. The approach was misconceived from the start. Finally, the failure to lodge a notice of appeal in time has led to this leave application. 32 In the light of this history it is hard that the applicant should have to bear the costs of this application. I have considered whether there is any basis on which those responsible for elements of the debacle could be regarded as legally responsible, even for part of those costs. However, I can discern no reason in law why the usual rule that costs follow the outcome should not apply. For these reasons the notice of motion must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Associate: Dated: 3 October 2002 Solicitor for the Applicant: Douglas Knaggs Solicitor
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Mr N J Williams SC
Date of Hearing: 30 September 2002
Date of Judgment: 3 October 2002
Susaki
Minister for Immigration & Multicultural Affairs
Special reasons 4 Under O 52 r 15(2) the Court may give leave to file and serve a notice of appeal at any time "for special reasons". In Jess v Scott (1986) 12 FCR 187 at 195 ("Jess v Scott") a Full Court of this Court expounded on the meaning of the expression, "special reasons" stating that in the context of O 52 r 15(2) the expression was intended to distinguish the case from the usual course of cases where the time limit to appeal is 21 days. The Full Court further observed: "It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. … It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 5 Jess v Scott was referred to with approval by a Full Court in Newington v Beneficial Finance Corp Ltd [2000] FCA 338. 6 In this case any notice of appeal was required to be filed, at the latest, by 3 September 2002. The fact that the delay was occasioned by solicitor error and was in no way the fault of the applicant is sufficient, in my view, to take it out of the usual course. However this is not the only consideration. Granting of leave is at the discretion of the Court; Howard v Australian Electoral Commission [2000] FCA 1767 ("Howard"). In Gatti v Shoosmith [1939] Ch 841 at 845 - 846 Greene MR commented that: "… the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the Court in exercising its discretion. I say "may be," because it is not to be thought that it will necessarily be exercised in every set of facts. … What I venture to think the proper rule which this Court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument." 7 The authorities are regrettably replete with instances where delay has been caused by default of a would-be appellant's legal adviser; Salter Rex & Co v Ghosh [1971] 2 QB 597 and R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 are but two instances. It has been accepted that the blamelessness of an applicant is a relevant factor in determining the consequences of such a default; Stollznow v Calvert [1980] 2 NSWLR 749. 8 In Jess v Scott the delay of one day resulted from the applicant's solicitor being under a mistaken impression as to the date of delivery of judgment. The Full Court granted the leave sought subject to the respondent's costs of the application for leave being borne personally by the applicant's solicitor. In this case the delay was just over one week but the respondents have not contended that the delay has prejudiced them in any way.
Similar views were expressed by Finkelstein J in Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 and by Mansfield J in Spires v Secretary Department of Family & Community Services [2002] FCA 578. 10 In order to assess the prospects of an appeal succeeding it is necessary to understand, in general terms, the background to this proceeding. It is important, however, that the Court refrain from holding a preliminary hearing on the merits of the appeal. The task of the Court is analogous to that involved in the grant of interlocutory relief when the Court must decide if there is a serious question to be tried without being required to predict the answer to that serious question.
(1986) 12 FCR 187
(2000) 101 FCR 548