FEDERAL COURT OF AUSTRALIA

Rizal v Minister for Immigration & Multicultural Affairs [1999] FCA 334

COSTS – appropriate costs order – respondent accedes to applicants’ request – application dismissed by consent – whether costs should be awarded in favour of applicants

Migration Act 1958 (Cth), ss 6A(1), 475(1), 476(1), 477

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6, 7

Judiciary Act 1903 (Cth), s 39B

Migration Regulations 1994 (Cth), reg 173A

Gounder v Minister for Immigration, Local Government & Ethnic Affairs (1994) 54 FCR 300, discussed

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, followed

Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284, discussed

Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, followed

YUSUF RIZAL & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1086 of 1998

JUDGE:          SACKVILLE J

PLACE:          SYDNEY

DATE:            30 MARCH 1999

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants have consented to an order dismissing their application for review.  They nonetheless seek an order for costs against the Minister.  The Minister contends that the appropriate order is that the parties bear their own costs.

2                     The principal visa applicant (“the applicant”) is an Indonesian citizen, who arrived in Australia as long ago as 1988.  On 18 December 1989, the applicant applied for Grant of Resident Status (“GORS”) under s 6A(1)(e) of the Migration Act 1958 (Cth) (“Migration Act”), as it then stood.  On about 8 August 1990, the GORS application was refused by the Minister’s delegate.

3                     In October 1990, the applicant sought reconsideration of the GORS decision by the then Immigration Review Panel.  On about 18 February 1991, the Minister decided that the applicant was ineligible for reconsideration of the GORS decision by reason of the then reg 173A of the Migration Regulations 1994 (Cth),which excluded from the reconsideration procedure an application made “on humanitarian grounds” (reg 173A(2)(a)).  I was informed by Mr Robinson, counsel for the applicant, that reg 173A(2)(a) was held to be invalid in Goundar v Minister for Immigration, Local Government & Ethnic Affairs (1994) 54 FCR 300.  In fact, Burchett J in that case did not declare reg 173A(2)(a) invalid, but he did give it a narrow construction.

4                     In March 1991, the applicant lodged an application for refugee status.  That application was rejected by the Minister in July 1992.

5                     The evidence on behalf of the applicant concerning events between 1992 and 1996 is somewhat vague.  It is by no means clear what was done during this period to encourage the Minister to reconsider the 1990 GORS decision in the light of subsequent Federal Court decisions, such as Goundar.  In any event, the applicant’s solicitor deposed that during 1997 (he does not say when) he satisfied himself that information had been conveyed to the Department indicating a desire for GORS reconsideration (he does not identify the information, nor does he say when the information was conveyed).

6                     On 1 September 1998, the applicant’s solicitor wrote to the Department complaining about the Department’s refusal to reconsider the GORS decision, asserting (without particulars) that the client had formally requested such a course “on at least two prior occasions”.  The solicitor requested reconsideration of the decision.

7                     This elicited the following response from the Department, in a letter dated 17 September 1998:

“The Department will not reconsider your original GORS decision.  It is a principle of efficacy in administrative decision making that decisions should not be challenged long after they have been made, when evidence is often not available.”

8                     The present application was filed on 13 October 1998.  It sought review under s 476(1) of the Migration Act 1958 (Cth) of what was said to be

“a judicially reviewable decision of [the Minister] made on [17] September 1998 to refuse to reconsider [the GORS decision of August 1990].”

9                     The Minister’s response was to file, on 18 November 1998, a notice of objection to competency.  This objected to the jurisdiction of the Court to determine the application, on the ground that the decision of 17 September 1998 was not made under the Migration Act or the Migration Regulations and was therefore not a “judicially reviewable decision” within s 475(1)(c) of the Migration Act.  Mr Robinson conceded that the objection made by the Minister was at least arguable.

10                  On about 22 December 1998, the applicant provided to the Minister a proposed amended application, which invoked the powers conferred on the Court by ss 5, 6 and 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth), as well as ss 476 and 477 of the Migration Act.  The proposed amended application seeks orders declaring void the purported decisions of August 1990 (the GORS decision), 18 February 1991 (the first decision to refuse to reconsider the GORS decision) and 17 September 1998 (the second decision to refuse to reconsider the GORS decision).  In addition, an order in the nature of mandamus is sought, directing the Minister to determine the GORS application lodged on 18 December 1989.

11                  Mr Markus, on behalf of the Minister, acknowledged that the amended application, if filed, would have overcome the jurisdictional difficulty identified in the Minister’s notice of objection to competency.  However, he pointed out that leave would have been required, under s 11(1)(c) of the ADJR Act, to file the application out of time.  Moreover, the Minister would have opposed relief being granted to the applicant, both on substantive and discretionary grounds.

12                  On 5 January 1999, the Department (not the Minister’s solicitors) wrote to the applicant’s solicitor indicating that the Department was processing the application for reconsideration.  A further letter of 1 February 1999 from the Australian Government Solicitor said this:

“This is to confirm my verbal advice to the effect that I have been provided with a copy of a letter dated 5 January 1999 from the Residence Section of the Parramatta office of the Department, addressed to your client C/- your office, indicating that the Department is processing your client’s request for reconsideration.  As requested by you, I forward a copy of that letter herewith.

I also confirm my verbal advice to the effect that, in the circumstances, my client is of the view that the current application before the Court is futile.  Whilst my client continues to be of the view that the application was always, and is, misconceived, I am instructed to inform you that the Minister is prepared to consent to orders dismissing the application with no orders as to costs.

Your advice whether the proposed orders are acceptable to your client would be appreciated.”

13                  The applicant appears to have accepted the offer in this letter, except the proposal that there be no order as to costs.  Hence, the only issue remaining is that of costs.

14                  Mr Robinson accepted that the principles applicable to a case such as this were accurately stated by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, at 201:

“(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.

  (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 proceeding 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.  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.

  (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.

  (5)     Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted.” [Citations omitted].

15                  In Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284, at 287, Finkelstein J, after quoting Hill J’s observations, made these comments:

“For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances.  To do otherwise would require some prediction of the outcome of the case.  It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial.  So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant.  Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant.  But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party.”

16                  While Mr Robinson was not disposed to cavil with this statement, it is perhaps not easy to reconcile with the comments made by McHugh J in Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, where his Honour suggested a somewhat more flexible approach (at 624-625).

“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.  In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation.  Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13], the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought.  The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

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....

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.”  [Most citations omitted.]

17                  I think it appropriate in this case to follow the approach suggested by Hill J and McHugh J.  In my view, the following factors are relevant to the exercise of my discretion:

(i)         I am not satisfied that the Minister acted unreasonably during the period 1991 to 1998, in failing to reconsider the original GORS application.  Despite assertions by the applicant’s solicitor, it is far from clear that the applicant continued to press the Minister for a reconsideration after the Minister refused to do so in 1991.  Even the letter of 1 September 1998 was vague in its assertions concerning the previous requests for reconsideration said to have been made by the applicant.  Moreover, it would be impossible to assess the reasonableness of the Minister’s conduct without addressing the substantive issues in the case.  It is inappropriate that I should attempt to resolve those issues on a costs application.

(ii)        It is at least arguable (as Mr Robinson conceded) that the application, in its initial form, did not validly invoke the jurisdiction of the Court.  The Minister was therefore acting reasonably in taking this point and in filing a notice of objection to competency.

(iii)       The Minister (through his Department) indicated soon after the service of the proposed amended application that he intended to reconsider the original GORS decision.  However, the Minister has never conceded that the application, in its proposed amended form, was bound to succeed.  As Mr Markus points out, the applicant faced some difficulties, notably the significance of the delay of some years in seeking relief in relation to the GORS decision.  The outcome of the litigation cannot be said to have been a foregone conclusion.

(iv)       It is a fair inference that the Department reconsidered this case in the light of the proceedings in this Court.  But as Mr Markus points out, the fact that the Minister was prepared to reconsider the decision does not necessarily mean that the applicant was bound to succeed in the proceedings, nor that the Minister acted unreasonably in waiting until the applicant’s case was clearly presented before agreeing to reconsider the GORS decision.  I am not persuaded that the Minister’s actions should be characterised as unreasonable.

18                  In the circumstances of the present case, I think it is appropriate to make no orders as to costs.

19                  I make the following orders:

1.         Application dismissed.

2.         No order as to costs.

Associate:

Dated:              30 March 1999