FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102

THE COURT ORDERS THAT:

1.                  The first respondent pay the appellant’s costs of the appeal

2.                  The first respondent be granted a certificate to the effect that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the first respondent in respect of the costs incurred by him in relation to the appeal and any costs incurred by the Minister in relation to the appeal that are required to be paid by the respondent to the appellant pursuant to Order 1.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This Court allowed the Minister’s appeal on 10 May 2010: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 535.  At that time, no order as to costs was made.  The Minister has now applied for his costs.  The respondent accepts that the Minister is entitled to such an order, however, he seeks an order under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”) for the grant of a certificate relating to costs.  Section 6 of the Act provides:

(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.

(2)       Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, 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.

2                     There is no question but that the Minister succeeded on a question of law.  The learned Federal Magistrate took an approach to the construction of s 425 of the Migration Act 1958 (Cth) which we held to have been too wide.  That being so, and it not being in any doubt       that the proceeding before us was a federal appeal, the prerequisites to the application of s 6(1) are enlivened.

3                     The discretion conferred by s 6(1) is a broad one and little purpose would be served by seeking to delimit its outer bounds.  For present purposes we would observe that there are no matters disentitling the respondent from the issue of such a certificate (cf. Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) (2008) 170 FCR 595 at 597 [5] per Ryan, Goldberg and Gordon JJ).  On the credit side of the ledger the appellant Minister has achieved a result which has implications well beyond the outcome of this particular case.  It was in anticipation of the decision’s likely significance that it was heard by a Full Court rather than by a single judge.  For similar reasons, the respondent had the benefit of representation by senior and junior counsel acting under Order 80 of the Federal Court Rules.  Perhaps unsurprisingly, given our explication of the Full Court’s prior decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, the decision has already been referred to in a number of decisions in both this Court and the Federal Magistrates Court: see SZOBG v Minister for Immigration and Citizenship [2010] FCA 832 at [29] per Bromberg J; SZNWZ v Minister for Immigration & Anor [2010] FMCA 481 at [36]-[37] per Lloyd-Jones FM

4                     The wider relevance of the case for the Minister is apt, at least in these circumstances, to make the grant of a certificate to the respondent appropriate.  This is particularly so where the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visas: Migration Regulations 1994 (Cth), Schedule 4, item 4004.  In those circumstances the orders of the Court will be:

1.                  Order the first respondent to pay the appellant’s costs of the appeal.

2.                  Grant the first respondent a certificate to the effect that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the first respondent in respect of the costs incurred by him in relation to the appeal and any costs incurred by the Minister in relation to the appeal that are required to be paid by the respondent to the appellant pursuant to Order 1.

Associate:

Dated:         24 August 2010