Federal Court of Australia

Warda v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1252

ORDERS

THE COURT ORDERS THAT:

1.    The respondent is to pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 19 October 2023, the applicant filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) seeking review of a decision of the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs. That application sought, among other things, a declaration that a decision made by the Minister on or about 8 October 2022 to withdraw an application by the applicant for a Partner (Migrant) (Class BC) Partner (subclass 100) visa (permanent partner visa) was invalid.

2    On 1 May 2024, the Department of Home Affairs advised the applicant that the withdrawal decision had been reversed and the applicant’s application had been reinstated. As such, the application was resolved before a hearing on the merits.

3    The applicant seeks their costs of the application, while the Minister seeks an order that there be no order as to costs.

4    For the reasons below, I consider that it is appropriate for the respondent to pay the applicant’s costs.

2.    BACKGROUND

5    The applicant is a citizen of Lebanon. On 8 February 2018, while still in Lebanon, the applicant married an Australian citizen. On 27 April 2018, the applicant applied for a subclass 309 Partner (Provisional) visa (temporary partner visa) and a permanent partner visa, sponsored by his former partner. On 19 September 2018, the applicant was granted the temporary partner visa. On 26 October 2018, the applicant entered Australia. The applicant and his former partner have two children, who were both born in Australia.

6    The applicant alleges that he suffered family violence during his relationship with his former partner, which ended on 6 July 2022. The applicant believes that he is still entitled to a permanent partner visa on family violence grounds.

7    On 9 July 2022, a notification of relationship cessation and withdrawal of visa application were submitted on the applicant’s ImmiAccount. The applicant alleges that, without his knowledge or consent, his former partner had logged into his ImmiAccount and submitted these forms.

8    On 10 July 2022, the applicant alleges he attempted to access his ImmiAccount, with the assistance of his brother-in-law, but was unable to because the password had been changed. On 14 July 2022, the applicant’s brother-in-law contacted the Department to have the password reset. After the password was reset, the applicant alleges that he logged onto his ImmiAccount and discovered the notification of relationship cessation and withdrawal of visa application.

9    On 8 October 2022, the Department wrote to the applicant acknowledging the withdrawal of his application for the permanent partner visa.

10    On 18 August 2023, the applicant’s representative wrote to the Department and explained the applicant’s position. The applicant’s representative sought confirmation that the purported withdrawal of the applicant’s visa application was of no effect, his temporary partner visa would be reinstated, and the Department would continue processing his permanent partner visa application.

11    On 23 August 2023, the Department advised the applicant’s representative that, as the applicant had not authorised the Department to communicate with them, the Department could not provide information to the applicant’s representative regarding the visa application.

12    The applicant’s representative sent follow-up emails to the Department on 23 August 2023 and 7 September 2023. On 11 September 2023, the Department wrote to the applicant’s representative requesting that they provide a signed copy of Form 956 (appointment of a registered migration agent, legal practitioner or exempt person) authorising them to act of the applicant’s behalf. On 13 September 2023, the applicant’s representative provided the Department with Form 956.

13    As indicated above, the applicant filed an originating application in this Court on 19 October 2023 seeking judicial review. The originating application sought the following relief:

1.    A declaration that a decision made by the respondent on or about 8 October 2022 to withdraw an application by the applicant for a Partner (Migrant) (Class BC) Partner (subclass 100) visa (the subclass 100 visa) exceeded the executive power of the Commonwealth and was of no effect.

2.    An order that the respondent process the applicant’s application for the subclass 100 visa in accordance with s 47(1) of the Migration Act 1958 (Cth).

3.    An order that the respondent pay the applicant’s costs.

14    On 28 February 2024, the parties’ representatives appeared before me for a short case management hearing. At that stage, the Minister’s solicitor advised the Court that her instructions were that the Minister wished to proceed to hearing. I encouraged the parties to liaise in order to ascertain what evidence might be required to satisfy the Minister of the applicant’s case and resolve the matter in a practical manner, should that prove possible.

15    On 5 March 2024, I made the following orders by consent:

1.    The respondent file and serve an application book by 4.30pm on 27 March 2024.

2.    The applicant file and serve any amended application giving complete particulars of each ground of review and any affidavit evidence by 4.30pm on 24 April 2024.

3.    The respondent file and serve any affidavit evidence to be relied upon by 4.30pm on 8 May 2024.

4.    The applicant file and serve any affidavit evidence in reply to be relied upon by 4.30pm on 22 May 2024.

5.    The applicant file and serve written submissions (not exceeding 10 pages) and list of authorities 14 days before the hearing.

6.    The respondent file and serve written submissions (not exceeding 10 pages) and list of authorities 7 days before the hearing.

7.    The application be listed for final hearing on Wednesday 10 July 2024 at 10:15am.

8.    Liberty be granted to the parties to apply to the Court for further directions on three clear days’ notice.

16    In accordance with my orders, on 6 March 2024, the Minister filed the application book.

17    On 1 May 2024, the Department wrote to the applicant’s representative advising as follows:

Please note that upon further investigations the withdrawal event in October 2022 has been reversed and the application has been re-instated.

With this the Subclass 309 visa granted to your client in September 2018 is in effect again.

The processing of the permanent partner visa (subclass 100) will now commence at the departmental office in Australia. You will be contacted by this office in due course.

18    The effect of this decision by the Department meant that the proceedings in the Federal Court were resolved before a hearing on the merits of the judicial review application.

19    On 3 July 2024, the Minister’s representative advised the Court that the parties were in the process of negotiating consent orders and the parties requested that the hearing listed on 10 July 2024 be changed from a final hearing to a case management hearing.

20    On 8 July 2024, I made orders by consent vacating the case management hearing listed on 10 July 2024 and dismissing the application.

3.    RELEVANT LEGAL PRINCIPLES

21    The Court has a broad discretion to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth): DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; (2004) 51 ACSR 555 at [14] (Allsop J, as his Honour then was).

22    In the ordinary course of proceedings, the power to award costs is “exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs”: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 (McHugh J). The primary purpose of an award of costs is to indemnify the successful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] (McHugh J).

23    The situation becomes more complicated in circumstances where a matter is resolved before a hearing on the merits. In those circumstances, “the Court will usually make no order as to costs with the intent that each party bears its own costs”: Vouris (Liq) v Johnson, in the matter of Zivaust Pty Ltd (Deed Admin Apptd) [2024] FCA 150 at [23] (Anderson J). Underlying this outcome is that “[i]t 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”: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201 (Hill J).

24    There are exceptions where the Court may consider it appropriate to award a party their costs without a hearing. The parties disagree regarding the applicable principles to the circumstances of this case.

25    The applicant relies on the decision of Burchett J in ONE.TEL Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 to contend that he should be awarded his costs on the basis that the Minister “effectively surrendered” to his case. In ONE.TEL, Burchett J held at [6]-[7] that:

In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. In Ex parte Lai Qin, McHugh J was careful to state (at 624) that the principles with which he was concerned were those that “govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means”. As his Honour recounted the facts, the instant case was one where the applicant had challenged a decision of the Refugee Review Tribunal denying her status as a refugee but, during the pendency of her action in the High Court, the Minister had exercised his special discretion in her favour under s 417 of the Migration Act 1958 (Cth). The question whether the Tribunal had or had not erred in law thus became moot. …

By contrast with the decisions I have been discussing, the present matter involves a clear winner. The applicants, by their proceeding, sought to challenge the validity of certain notices, and to have them set aside. The respondent, after initially defending those notices, encountered at least an evidentiary difficulty, and acknowledged that they were to be set aside. That means that the applicants have succeeded, just as the respondent succeeded in Ahmetaj v Minister for Immigration and Multicultural Affairs [1999] FCA 332, where a proceeding failed by reason of the occurrence of an event that was always liable to occur and to defeat the proceeding; in those circumstances, Sackville J, when the hearing did not proceed, distinguished Ex parte Lai Qin and made a costs order. As in that case, so here, the result one party sought was achieved without a hearing, but not by a “settlement” in the ordinary sense, or as McHugh J used the word, and certainly not by what his Honour called “extra-curial means”.

26    The decision of ONE.TEL, on the issue of costs, was cited with approval by the Full Court in Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7] (Beaumont, Sundberg and Hely JJ).

27    In Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [80(a)], Preston CJ gave the following examples of surrender:

(i)    discontinuing without the consent of the other party; or

(ii)    giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party…

28    Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89 affords a further example of a case in which a party effectively surrendered. That case concerned an application for an order restraining the respondents from operating machinery which emitted noise at levels in excess of those permitted under applicable standards. Shortly before the hearing of the matter, the respondents took measures as a result of which the standards were complied with: at [2] (Brereton JA, with Meagher JA agreeing at [1]). As a result, Brereton J held that there was a “clear winner” in the proceeding because the “practical result of the case is that the machinery is now noise compliant” and the respondents had consented to an order to keep the machinery compliant in the future: at [3], [10]; see also the Full Court’s reference to whether a party had obtained the “practical outcome” they sought in CZA19 v Commonwealth [2024] FCAFC 66 at [5] (Mortimer CJ, Perram and Markovic JJ).

29    The applicant also submits that the Minister acted unreasonably in the conduct of this proceeding on the following bases (applicant’s submissions on costs at [18]):

(a)    the respondent continuing to defend the application in lieu of timely instructions (as can be inferred from the Minister’s representative advising the court at the case management hearing on 28 February 2024 they had not received any instructions to resolve the matter);

(b)    the Department’s delay in not reinstating the applicant’s visa for more than eight months after the applicant’s representative’s initial correspondence;

(c)    the absence of a substantive response to the applicant’s representative correspondence during the period of 23 August 2023 – 30 April 2024.

30    The Minister, however, submits that there was no surrender in this case but rather a supervening event, “namely the decision on 1 May 2024 by the Department during the pendency of the action which had the effect of rendering the s39B application moot”: Minister’s submissions on costs at [10]. The Minister further contends that he acted reasonably and had a proper basis for defending the claim.

31    In support of his position that the appropriate order is, therefore, that there be no order as to costs, the Minister relies upon the following passage in the reasons of McHugh J in Lai Qin at 624–5:

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, 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.

(Citations omitted.)

4.    DISPOSITION

32    In my view, in all of the circumstances, this is an appropriate case in which to award the applicant his costs.

33    First, I accept that this case is properly characterised as an example of surrender. The “practical result” of this case (as in Nadilo) is that the applicant has succeeded in obtaining the outcome which he sought. The withdrawal of his visa application was reversed and therefore has no effect (corresponding with the first order sought in the originating application). Further, the Department has indicated that it will process his permanent partner visa application (corresponding with the second order sought in the originating application). Further, while the reversal decision was made by the Department, the Minister is responsible for the Department and the administration of the Migration Act 1958 (Cth). As such, I agree with the applicant’s contention that the conduct of the Department should not be considered as separate from the Minister’s conduct and treated as a supervening event.

34    Secondly, as the applicant’s representative stated in their letter to the Department dated 18 August 2023, it is clear from the information provided in the notification of relationship cessation (generated on 9 July 2022) that it was completed by the applicant’s former partner. It should also have been apparent on the face of the notification and withdrawal forms that it was highly unlikely that the forms had been submitted with the applicant’s knowledge and consent given the following matters.

(1)    The notification of relationship cessation states that the “Applicant has vacated current premises to an unknown location. … No further details are known about the applicant.”

(2)    While the proforma text in the visa application withdrawal form (also generated on 9 July 2022) states that the person withdrawing the application “must have provided their consent” and that “You must attach a signed statement with this consent to this form” (emphasis added), there is no signed statement by the applicant giving his consent. Instead, a handwritten document signed by the applicant’s former partner dated 11 July 2022 (the former partner’s handwritten request) apparently submitted with or shortly after the notification and withdrawal forms states that she no longer wishes to sponsor her former partner “and wish[es] to withdraw both the partner visa (subclass 309) visa and partner (subclass 100) visa application due to relationship breakup…”.

35    Accordingly, while I accept that the Minister was entitled to make inquiries as to the veracity of the applicant’s claims in the letter from his representative of 18 August 2023, there is nothing to suggest that those inquiries would have been particularly complex given the terms of the notification and the withdrawal form, and the former partner’s handwritten request. In those circumstances, I do not consider that it was reasonable, with respect, for those inquiries to have been ongoing and instructions still not obtained by the time that proceedings were instituted on 19 October 2023 and, even less so, by the time of the case management hearing on 28 February 2024.

36    In this regard, I have taken into account the fact that the email of the applicant’s representative dated 18 August 2023 was the first time that the issue with the withdrawal was raised with the Department. I have also taken into account that the Minister was not authorised to correspond with the applicant’s representative between the date of that letter and 13 September 2023 when the applicant’s representative provided the Department with the completed Form 956 authorising them to act on the applicant’s behalf: see above at [11]-[12]. It follows that I do not consider that it was unreasonable for any inquiries not to have been completed, and instructions obtained, before 13 September 2023.

5.    CONCLUSION

37    In all of the circumstances, therefore, I consider that the appropriate order is for the Minister to pay the applicant’s costs.

Associate:

Dated:    31 October 2024