Federal Court of Australia

Minister for Immigration and Border Protection v MZZMX (No 2) [2020] FCAFC 214

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by the First Respondent in relation to the appeal to this Court from the Federal Circuit Court and in respect of those costs required to be paid by the First Respondent pursuant to Order 3 of the Orders made on 13 October 2020 arising out of the judgment in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Background

1    On 13 October 2020, we allowed an appeal from a decision of the Federal Circuit Court of Australia, which had set aside a decision of the Second Respondent, the Refugee Review Tribunal, to affirm the decision of the Appellant, the Minister for Immigration and Border Protection, not to grant the First Respondent a Protection (Class XA) Visa. Pursuant to Order 3 of the Orders made on 13 October 2020, the First Respondent was to pay the Appellant’s costs of and incidental to the appeal.

2    After judgment was delivered, counsel for the First Respondent sought and obtained leave to file written submissions in support of an application for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

3    For the reasons that follow, such a certificate should be granted.

Court’s discretion to grant a costs certificate

4    Section 6 of the Act relevantly provides:

Costs certificates for respondents--Federal appeals

(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.

…

(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.

5    Section 3(fa) of the Act defines a ‘Federal appeal’ to include an appeal to the Federal Court from a judgment of the Federal Circuit Court. Accordingly, the threshold criterion in s 6(1) of the Act is satisfied in the present case, the appeal being a Federal appeal and one which succeeded on a question of law: see Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175 at [23]-[28]. It follows that the only issue to determine is whether the discretion to grant a costs certificate should be exercised in favour of the First Respondent.

6    The discretion conferred by s 6(1) is a broad one: see, eg, Minister for Immigration and Border Protection v Kaur (No 2) [2015] FCA 748 at [5] (Yates J); Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [3] (Keane CJ, Emmett and Perram JJ); Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 at [5] (Stone, Foster and Nicholas JJ). Relevant considerations include:

(a)    whether there are any matters which would disentitle the respondent to the issue of a certificate, such as the conduct of the respondent in respect of the litigation and any prejudice thereby occasioned to the appellant: see, eg, Minister for Immigration and Citizenship v Kamruzzaman [2011] FCA 1095 at [19] (Greenwood J); Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19; 259 FCR 569 at [29] (Kenny, Tracey and Griffiths JJ);

(b)    whether the respondent is an individual or a well-resourced company or government entity: see, eg, Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52 at [9] (French, Lindgren and Jacobson JJ); Kamruzzaman at [18];

(c)    whether the decision on the appeal was significant beyond the particular case and had wider importance or relevance to the administration of the Migration Act 1958 (Cth): see, eg, SZNVW at [3]; CQZ15 (No 2) at [29];

(d)    whether it would have been unreasonable or unrealistic to expect the respondent to have undertaken the burden of the appeal without legal representation: see, eg, Kaur at [10]; and

(e)    whether the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than protection visa pursuant to Schedule 4, item 4004 of the Migration Regulations 1994 (Cth): see, eg, SZNVW at [4].

Consideration

7    The discretion ought to be exercised in favour of granting a costs certificate to the First Respondent for the following reasons.

8    First, it would have been unreasonable to expect the First Respondent to defend the appeal without representation, given the complex questions of administrative law raised by the determinative ground of appeal, which related to whether the Tribunal’s reasoning was irrational, illogical or legally unreasonable.

9    Second, the assistance of legal representation was of significant benefit to the Court. In addition to ensuring submissions were put in their proper adversarial form, the involvement of counsel helped to narrow the issues in dispute: see MZZMX at [37].

10    Third, there were no matters disentitling the First Respondent to the issue of a certificate. The First Respondent made the application promptly and, given the Minister did not oppose the application, it can be assumed that no significant prejudice has been suffered.

11    An order will be made accordingly.

Associate:

Dated:    30 November 2020