Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Pulini (No 2) [2024] FCA 1250

ORDERS

THE COURT ORDERS THAT:

1.    The Court certifies for the purposes of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act) that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondents in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondents in relation to the appeal.

2.    There be no order as to the costs of the application for a costs certificate.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 24 May 2024, the Court allowed an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) which set aside a decision of the applicant (the Minister) to revoke the respondents’ citizenship: Minister for Immigration, Citizenship and Multicultural Affairs v Pulini [2024] FCA 541. The respondents were ordered to pay the Minister’s costs of the appeal.

2    On 2 June 2024, the respondents filed an interlocutory application seeking the grant of a cost certificate pursuant to ss 6(1) and (3) of the Federal Proceedings (Costs) Act 1981 (Cth) (the Costs Act). The respondents filed written submissions in support of their application and the Minister filed written submissions in response.

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

Statutory framework

4    Section 6 of the Costs Act relevantly provides that:

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 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(g) of the Costs Act defined a “Federal appeal” to include an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal (which has been replaced by the Administrative Review Tribunal).

6    There is no presumption in favour of the grant of a costs certificate under s 6(1) of the Costs Act: see Sims v Chong (No 2) [2015] FCAFC 163 at [7].

7    A number of relevant considerations were summarised by the Full Court in Minister for Immigration and Border Protection v MZZMX and Anor (No 2) (2020) 385 ALR 283; [2020] FCAFC 214 at [6]:

The discretion conferred by s 6(1) is a broad one. 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;

(b)    whether the respondent is an individual or a well-resourced company or government entity;

(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);

(d)    whether it would have been unreasonable or unrealistic to expect the respondent to have undertaken the burden of the appeal without legal representation; 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 Sch 4, item 4004 of the Migration Regulations 1994 (Cth).

(Citations omitted.)

The parties’ submissions

8    The respondent relies on the following factors to demonstrate that a costs certificate should be granted:

First, the questions of law raised by the appeal resolved issues of wider importance that will be relevant to the Minister’s administration of the Australian Citizenship Act 2007. In particular, the Court held that:

(a)     When considering whether the person’s citizenship should be revoked in the exercise of the discretion in s 34(2), the decision-maker is bound to take into account the matters in paras (a), (b) and (c) of s 34(2): Reasons at [57].

(b)     Contrary to the Minister’s submissions, the purpose of s 34(2) of the Citizenship Act does not extend to revoking the citizenship of a person who is not “worthy” or not “deserving” of Australian citizenship and that is not a matter required to be taken into account by the decision-maker: Reasons at [76].

(c)    When considering the residual discretion in s 34(2), the decision-maker may consider matters that were not taken into account when considering the public interest, including detriment, or the potential for detriment, to the person or other individuals resulting from revocation of the person’s citizenship: Reasons at [85].

The Court’s Reasons will provide substantial guidance for future decision-makers acting under s 34(2). This is a consideration that weighs in favour of the grant of a costs certificate: Melnik v Melnik [2005] FCAFC 207, [14].

Second, having regard to the nature of the questions of law in the appeal, it was appropriate for the Respondents to engage legal representation to respond to the appeal. The Minister was represented by Senior Counsel and Junior Counsel and the issues involved a degree of complexity. In Minister for Immigration and Border Protection v Kaur (No 2) [2015] FCA 748, for example, Yates J observed that, having regard to the question of law involved, it would have been unrealistic to expect the respondent to undertake the burden of the appeal without legal representation and that such representation was “not only a benefit for [the respondent]. It was also a benefit for the Court in having an argument presented in proper adversarial form” (at [9]). It is submitted that the same may be said here.

Third, it is submitted that there are no matters that would disentitle the Respondents to a costs certificate. In Kaur (No 2) (above), this was accepted as a factor relevant to the discretion.

9    The Minister submits that, “it is ultimately a matter for the Court to be satisfied that it would be appropriate for a costs certificate to be issued”.

Consideration

10    The appeal was a Federal appeal within s 3(g) of the Costs Act and the Minister succeeded on a question of law concerning the exercise of discretion under s 34(2) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act): see Minister for Immigration, Citizenship and Multicultural Affairs v Pulini at [40] and [77]. Accordingly, the threshold criteria in s 6(1) of the Costs Act are satisfied.

11    The remaining issue to determine is whether the discretion to grant a costs certificate should be exercised in favour of the respondents.

12    I accept the respondents’ submission that Minister for Immigration, Citizenship and Multicultural Affairs v Pulini, has implications for decision-making under s 34(2) of the Citizenship Act beyond the present case: cf Minister for Immigration and Citizenship v Khadgi (No 2) [2010] FCAFC 152 at [6]. There are no matters disentitling the respondents from the issue of a costs certificate.

13    Accordingly, the discretion ought to be exercised in favour of granting a costs certificate to the respondents. I will make an order in the same terms as the order made in Child Support Registrar v AFS19 (2021) 287 FCR 52, namely:

The Court certifies for the purposes of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act) that, in the opinion of the Court, it would be appropriate for the

Attorney-General to authorise a payment under the Costs Act to the first respondent in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the appeal.

14    The respondents have sought an order that there be no order as to the costs of their application for a costs certificate. The Minister has not made any submissions as to costs. I will make no order as to the costs of the respondents’ application for a costs certificate.

Associate:    

Dated:    29 October 2024