FEDERAL COURT OF AUSTRALIA

Manatiy v Minister for Immigration and Multicultural Affairs (No 2)

[2007] FCA 267

MARY JANE MANATIY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL

No SAD 129 of 2006

FINN J

13 MARCH 2007

ADELAIDE

THE COURT ORDERS THAT:

1.                  The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     Mrs Manatiy has applied unsuccessfully to this Court to challenge a decision of the Migration Review Tribunal refusing her visa application:  Manatiy v Minister for Immigration and Multicultural Affairs [2007] FCA 28.  Though the Tribunal indicated it had some sympathy for Mrs Manatiy’s situation – as do I – it considered it had no option to decide otherwise than it did.

2                     The Tribunal’s path to its conclusion was misconceived – a misconception induced by an erroneous concession made by Mrs Manatiy’s solicitor.  In the judicial review proceedings before me, the respondent Minister accepted that an error was there.  While the Minister objected to Mrs Manatiy’s seeking relief on a basis not raised before the Tribunal, I nonetheless entertained the application but rejected it on the basis that on the proper construction of the relevant visa requirements she could not be entitled to that visa in any event.  Nonetheless, she now seeks an order that each party bear its own costs of the application to this Court.

3                     My discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) must be exercised judicially and conformably with judicial principle.  Notwithstanding my sympathy for Mrs Manatiy’s situation, I could not, consistently with my obligation, exercise my discretion in the way sought:  see generally on costs Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9]-[25]. 

4                     Counsel for her has attempted to justify what is proposed by reference to what might be called public interest considerations:  (a) the matter raised novel and important questions of law;  (b) these were ones of public interest;  etc.  The short answer to this is that the proceeding simply did not have the significant character sought to be ascribed to it.  It doubtless was of no little importance to Mrs Manatiy.  But it only raised a prosaic question of statutory interpretation.  Moreover, if the applicant’s own lawyer had not misled the Tribunal, the application to this Court may not have been necessary.

5                     The case is one in which the ordinary principle of costs following the event should be applied.  I will order that the applicant pay the first respondent’s costs of the application. 

Associate:

Dated:         13 March 2007