Federal Court of Australia

Arafat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1432

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted for the appeal to be discontinued with no order as to costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BAckGround

1    This is an appeal from a judgment of the Federal Circuit Court (as it was then known) dismissing an application by which the appellants sought to quash and have re-determined in accordance with law a decision of the Administrative Appeals Tribunal (Tribunal): Arafat v Minister for Home Affairs [2019] FCCA 3770 (J). The Tribunal had earlier affirmed a decision of a delegate of the Minister (Delegate) refusing to grant the appellants Regional Employer Nomination (Class RN) (Subclass 187) Visas (Subclass 187 Visas) in the direct entry stream under s 65 of the Migration Act 1958 (Cth).

2    The first appellant is a male citizen of Bangladesh, the second appellant is his wife and the third appellant is his very young son. The first appellant sought the Subclass 187 Visa on the basis of his nomination to work in the position as cook at a restaurant in Gundaroo. The second and third appellants were secondary applicants on the basis of being members of the family unit of a person who satisfied the criteria for the grant of the Subclass 187 visa: see cl 187.311 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).

3    To qualify for the Subclass 187 Visa, it was necessary for the first appellant to satisfy cl 187.233 of the Regulations and in particular cl 187.233(3) and (4), namely, that the Minister has approved the nomination and the nomination has not subsequently been withdrawn. As the primary judge recorded (at J [5]), unfortunately for the appellants, the nomination by the sponsor of the first appellant was withdrawn by letter addressed to the Minister and, accordingly, the Delegate was not satisfied that the first appellant was the subject of an approved nomination. By reason of this fact, the second and third appellants also did not meet the relevant statutory requirements for a Subclass 187 Visa.

4    As outlined above, this led to a chain of events by which the appellants sought a review of the Delegate’s decision initially in the Tribunal and then before the primary judge. At the hearing before the Tribunal the position remained the same as it was at the time of the Delegate’s decision, namely, the sponsor had withdrawn its nomination in respect of the first appellant, and he was not otherwise the subject of an approved nomination.

B    The Decision Below AND THE GROUNDS OF APPEAL

5    Four grounds of appeal were advanced before the primary judge: see J [17]. Among other things, they related to contentions that there had been a denial of procedural fairness by the Delegate and the Tribunal. Similar contentions were advanced on appeal. For the reasons that will become evident, it is unnecessary to descend into the merits of the grounds of appeal, and it suffices to say that they do not point to any discernible error on the part of the Tribunal or the primary judge.

6    Further, it appears that at some stage during the proceeding before the Tribunal the appellants were represented by a migration agent, in respect of whom a complaint was made. A complaint was also made to the primary judge and at the hearing of the appeal that the sponsor’s lawyer had been deficient in advising the first appellant in a timely way of the flaw in the proceeding before the Tribunal. There is insufficient material before me to form a view one way or the other as to whether any accusations against the former migration agent or the former sponsor’s lawyer have any substance, but the reality is, on any view, the appellants have always had an entirely insecure foundation for the steps that have been taken in relation to this matter before the Tribunal, the primary judge and in this Court.

C    Leave to discontinue the proceeding

7    The appellants have all returned to Bangladesh. When the first appellant appeared by way of telephone this morning, he said that a major concern of his was the imposition of a “fine” to the Commonwealth which he said there was very little prospect of him being able to pay while resident in Bangladesh. He was concerned that the inability to satisfy a debt to the Commonwealth would prevent him being able to make another visa application in the future.

8    Ms Roberts, who appeared on behalf of the Minister, helpfully took me to the relevant regulations which, in short, would prevent the appellants from seeking a visa of the type that had originally been applied for unless all debts to the Commonwealth had been discharged or an acceptable payment plan approved by the Minister had been agreed (in addition to the other criteria relevant for the grant of a visa).

9    In circumstances where I was of the view that the appellants’ prospects of success on the appeal were, to put it mildly, poor, I thought it was appropriate to inform the appellants that they could seek leave to discontinue the proceeding and that my preliminary view (subject to hearing from the Minister) was that I was prepared for them to do so with no order as to costs.

10    I stressed to the appellants that discontinuing the proceeding should not give them any comfort that they would be successful in obtaining a visa in the future, as any application would need to be dealt with on the merits in the ordinary course. However, I noted that adopting the course of discontinuance would mean that the potential fetter of an adverse costs order would not be a barrier standing in their way in making a further visa application. The first appellant confirmed that, in the light of what I explained to him, he wished to discontinue the proceeding with no order as to costs: see T12.40–T14.15.

11    Understandably, in the absence of instructions, Ms Roberts was unable to consent to such a course. She reminded me of the history of the matter (including that there had been an earlier adjournment application that was successful), drew my attention to the very late nature of the application for discontinuance and made note of the costs incurred by the Minister in preparing for the appeal. Ultimately, Ms Roberts submitted that the interests of justice required that costs of the appeal be paid to the Minister.

12    Rule 36.73(1)(b)(i) of the Federal Court Rules 2011 (Cth) (FCR) provides that an appellant may discontinue an appeal at the hearing with the Court’s leave. The usual price of such a discontinuance, however, is an order for costs in favour of the respondent. That position is consistent with the foundational proposition that, as Gleeson CJ, Gummow, Hayne and Crennan JJ explained in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 (at 62–63 [25]–[26]), although there is “no absolute rule”, generally the discretion to award costs is exercised in favour of the successful party: see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at 88 [40] per Gaudron and Gummow JJ).

13    It is trite that the Court has a broad power in relation to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (Act). It has often been remarked that the discretion as to costs is unfettered, but that s 37N(4) of the Act requires the Court to take into account any failure by a party to comply with the overarching purpose of civil practice and procedure provisions, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see 37N(1).

14    Further, in exercising the discretion to award costs it is necessary to take into account that the usual order, as reflected in FCR 36.73(4), is that upon the filing of a notice of discontinuance in accordance with the rule, unless the parties otherwise agree, the appellant is to pay the costs of each respondent. But this rule is not absolute and the Court has a discretion to make other orders as to costs if it is considered appropriate in the exercise of discretion: see Christodoulou v Disney Enterprises Inc [2006] FCA 902 (at [4] per Heerey J); Cetinkaya v Official Trustee in Bankruptcy [2012] FCA 611 (at [17] per Bromberg J). In saying this, I must be cognisant of the fact that financial hardship or claimed incapacity is not a reason for the Court to make an order relieving a party of the costs burden that is imposed by the filing of a notice of discontinuance: Lababidi v Secretary, Department of Employment and Workplace Relations [2007] FCA 1568 (at [6] per Kenny J).

15    Ultimately, the discretion to award costs must be exercised by reference to all the relevant circumstances of the case. To my mind, the following factors are of relevance:

(1)    from what the first appellant has told me, at no time has he appreciated the difficulties in challenging the reasons of the Tribunal (to the extent that this is the result of any deficient advice given to him is unable to be determined on this application);

(2)    from what was said at the hearing today, it appears the appellants have arranged for the discharge of their obligation to pay the Commonwealth of the costs of the proceeding below;

(3)    the making of a costs order in the present circumstances, where the appellants are absent from Australia and are highly unlikely to be able to discharge a debt to the Commonwealth, will likely cause them prejudice over and above a financial impost; and

(4)    on the material currently before me, the prospects of the Commonwealth being able to enforce the costs order, if made, is remote.

16    Notwithstanding the powerful considerations in favour of visiting a costs order upon the appellants, in all the circumstances, I am satisfied that this is an exceptional case and that I should grant leave for the appeal to be discontinued with no order as to costs.

Associate:

Dated: 6 December 2021