FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Kamruzzaman [2011] FCA 1095

THE COURT ORDERS THAT:

1.    A costs certificate be granted pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by the respondent in relation to the appeal to this Court from the Federal Magistrates Court of Australia and in respect of those costs required to be paid by the respondent pursuant to Order 4 of the Orders of the Court made on 23 December 2009 arising out of judgment given that day in Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562.

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

REASONS FOR JUDGMENT

1    This proceeding concerns an application for a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”) consequent upon judgment in this Court in an appeal by the Minister for Immigration and Citizenship (“the Minister”) from the decision of the Federal Magistrates Court of Australia in Kamruzzaman v Minister for Immigration & Anor [2008] FMCA 1460.

2    On 23 December 2009 the Court made the following orders:

1.    The appeal is allowed.

2.    The decision of the Federal Magistrates Court of 19 November 2008 is set aside.

3.    The decision of the Migration Review Tribunal of 16 April 2008 is reinstated.

4.    The respondent shall pay the costs of and incidental to the appeal and the hearing before the Magistrates Court of Australia.

3    On 4 July 2011 the respondent filed an application under the Act in respect of the costs:

a.    Incurred by the respondent in relation to the appeal; and

b.    Incurred by the appellant in relation to the appeal that are required to be paid by the respondent.

4    By letter dated 15 July 2011 the Court advised the parties that the respondent’s application would be dealt with in Chambers in accordance with s 12 of the Act. The parties were required to file submissions by 29 July 2011. The respondent subsequently filed written submissions on 29 July 2011. By an email sent on 29 July 2011 to the Court’s Registry, the solicitors for the Minister advised the Court that the Minister neither consented to nor opposed the respondent’s application for a costs certificate.

Background to the present application

5    On 19 April 2005, the respondent’s brother, Mr Hossain, applied for a permanent Skilled – Australian-sponsored (Migrant) (Class BQ), subclass 138 visa, with the respondent, who is an Australian citizen, as his sponsor. Mr Hossain listed his nominated occupation as “Business and Information Professional”. A delegate of the Minister of Immigration and Citizenship made a decision on 23 January 2007 to refuse the visa on the basis that Mr Hossain did not satisfy clause 138.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”) because he had not been employed in a skilled occupation. The delegate’s opinion was that Mr Hossain’s position at the Arab Bangladesh Bank (“the Bank”) was not Business and Information Professional, but Bank Worker or Credit and Loans Officer, which are not skilled occupations.

6    On 13 March 2007, the respondent applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 28 April 2008. The Tribunal was not satisfied that Mr Hossain had been employed in a skilled occupation for a period of two years in the three years preceding the day of the application. It therefore found that Mr Hossain did not meet clause 138.216(1) or (2) of the Migration Regulations.

Decision of Federal Magistrates Court

7    The respondent applied to the Federal Magistrates Court on 13 May 2008 seeking orders quashing the Tribunal’s decision and directing the Tribunal to hear and determine the application according to law. It was alleged that the Tribunal had fallen into jurisdictional error by, failing to correctly apply the relevant regulations (and consequently asking itself the wrong question); by finding that Mr Hossain did not satisfy clause 138.216 against the weight of the evidence before it; and, by failing to take account of relevant material, particularly the criteria for Business and Information Professionals. Burnett FM found that all three alleged errors had been established by the appellant (the current respondent).

8    On 19 November 2008 Burnett FM ordered that the Tribunal’s decision be annulled and set aside and the application remitted to the Tribunal.

Appeal to this Court

9    The Minister appealed to this Court on 10 December 2008 seeking an order that the decision of the Federal Magistrates Court be set aside and the decision of the Migration Review Tribunal be allowed to stand.

10    It was contended that Burnett FM erred in his application of clause 138.216 of the Migration Regulations, firstly by considering whether the visa applicant had been employed as a Business and Information Professional which was the subject of a finding of fact by the Tribunal and not open to review; secondly, by finding that the Tribunal asked itself the wrong question or failed to give consideration to a relevant consideration, as the question of whether the applicant was utilising “higher order skills” was not relevant; and thirdly, by misapprehending the necessary qualifications and the actual employment requirements that the visa applicant must satisfy with respect to the nominated skilled occupation.

11    All three of the grounds of appeal where upheld by this Court which found that Burnett FM erred in finding, first, that the Tribunal had fallen into jurisdictional error by failing to consider whether Mr Hossain’s task required him to exercise his tertiary-level skills; second; that no reasonable Tribunal would have reached the conclusion reached by the Tribunal; and third, that the Tribunal asked itself the wrong question in determining whether Mr Hossain was employed at the Bank as a Business and Information Professional.

The present application

12    The respondent’s application for a costs certificate is made under s 6(1) of the Act. Section 6 of the Act provides:

6    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 sub-section (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.

13    The definition of “Federal appeals” includes an appeal to the Federal Court from a judgment of the Federal Magistrates Court: s 3(fa) of the Act. The appeal is thus a “Federal appeal”. As the Minister’s appeal succeeded on three questions of law s 6(1) of the Act is engaged and thus the question before this Court is whether or not it should exercise its discretion and grant the respondent a costs certificate.

14    In Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the Full Court observed at [3] that the discretion conferred by s 6(1) of the Act is a broad one and there is little purpose in limiting the outer bounds of the discretion. This view was adopted in the subsequent Full Court decision Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 at [5] and applied in Minister for Immigration and Citizenship v SZNCR (No 2) [2011] FCA 545 at [6].

15    As the Full Court noted in Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52, the Hon R I Viner (then Minister for Employment and Youth Affairs), explained (at p 157), during the Second Reading Speech on the Bill for the Act, the purpose of the Bill as being:

... to provide, in respect of federal and certain territorial courts, reimbursement to litigants of a similar kind to that provided in the States under State suitors’ fund legislation and similar laws. In each of the States there is now legislation providing for reimbursement to a litigant who, through no fault of his own, has to bear the costs of an appeal from a decision involving an error of law, or an incorrect assessment of the quantum of damages, or the cost of a new trial.

[emphasis added]

16    The discretion ought to be exercised in favour of granting a costs certificate for these reasons.

17    First, as in Sok (No 2), it would have been unreasonable to expect the respondent to defend the Minister’s appeal as an unrepresented litigant given the relatively complex issues of administrative law raised by the appeal.

18    Second, the respondent is an individual and not a well resourced public company or government related entity: cf Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52 at [9]. By his affidavit filed in support of the application, the respondent deposes that he supports a dependant wife and child on an annual income of “about $34, 000” and that he does “not have the means to pay the costs [consequent of the Minister’s successful appeal]”: see affidavit of K. Mohammed sworn on 29 June 2011. Whilst these statements are not verified by reference to any documentation, in the absence of any conflicting evidence it is appropriate for the Court to accept that they are an accurate summation of the respondent’s financial affairs.

19    Third, there are no matters before the Court which would disentitle the respondent from the issue of a costs 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; Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [3]; and Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 at [5]. Whilst, there has been some delay in making the application, it can be assumed that the Minister has suffered no significant prejudice having regard to the Minister’s decision not to oppose the application.

20    Fourth, whilst the result achieved by the Minister in this case does not have as wide implications for the administration of the Migration Act 1958 (Cth) as the appeal considered in Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the case did provide important clarification as to how decision makers should interpret and apply the Australian Classification of Occupations Code in the context of clause 138.261 of the Migration Regulations 1994 (Cth). The decision has since been considered by two decisions of the Federal Magistrates Court: see Shukla v Minister for Immigration [2010] FMCA 625; and SEEMA v Minister for Immigration [2011] FMCA 454.

21    Fifth, the respondent’s solicitors submit that the existence of a debt to the Commonwealth would have “other repercussions for the respondent, including in terms of financial standing”: see respondent’s submissions at [12]. Whilst the respondent’s solicitors unfortunately fail to particularise how such debt could prejudice the respondent, an unsatisfied debt to the Commonwealth might potentially bring about some prejudice to the respondent in his future dealings with Commonwealth agencies or other private credit providers. The potential prejudice that the respondent might suffer if he is not granted a costs certificate is a relevant factor in the exercise of the Court’s discretion. In Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102, the Full Court accepted at [4] that the granting of a costs certificate was particularly appropriate in that case as the existence of a debt due to the Commonwealth may have provided a basis for refusing the grant of a visa to the respondent in the future.

22    Accordingly, in the exercise of the discretion, for all the reasons previously mentioned, I am satisfied that a certificate ought to be granted under the Act stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act in respect of the costs incurred by the respondent in relation to the appeal to this Court from the Federal Magistrates Court of Australia and those costs the respondent is required to pay to the appellant pursuant to Order 4 of the Orders made by the Court on 23 December 2009.

23    Sections 18(1) and 18(2) of the Act provide for a maximum amount that may be authorised for payment pursuant to a costs certificate. This amount can be prescribed by regulations made under the Act. Regulation 4 of the Federal Proceedings (Costs) Regulations 1991 (Cth) provides for a prescribed maximum amount of $6,000.00. Section 16(2) of the Act provides that the amount to be authorised to be paid to the respondent upon issue of a costs certificate is a matter for the Attorney-General.

Associate:

Dated:    22 September 2011