Federal Court of Australia

Moli v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 1112

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the respondent fixed in the sum of $3,000.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Foster Moli's application to this Court to review a decision made by the Minister to cancel his visa was unsuccessful: Moli v Minister for Immigration and Multicultural Affairs [2025] FCA 350. Liberty to apply was reserved in relation to the costs of the application. The Minister now seeks an order that Mr Moli pay the costs of his application fixed in the sum of $11,188.26.

2    There is an established principle to the effect that, in general, the discretion as to costs is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]; and Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. However, the principle is not to be elevated to a rule: Norbis v Norbis (1986) 161 CLR 513. Special circumstances may warrant departure from the 'general rule': see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 at [6]. For the following reasons, there are special circumstances in the present case and the appropriate order is that Mr Moli pay the costs of the Minister fixed in the sum of $3,000.

3    Mr Moli is a citizen of New Zealand who has lived in Australia since 2010. Under Australian law, citizens of New Zealand who meet certain health and behaviour requirements (principally concerned with criminal convictions before entering Australia) may live and work in Australia indefinitely and may do so without applying for a visa. Instead, they are automatically issued with a visa upon entry into Australia. These arrangements reflect the uniquely close relationship between the two countries and their citizens.

4    Mr Moli held such a visa. However, his visa was cancelled when he was sentenced to a three year term of imprisonment after being convicted in Australia of possession of a trafficable quantity of methylamphetamine with intent to sell or supply. He sought the revocation of his visa cancellation. A delegate of the Minister decided not to revoke the cancellation. In circumstances of that kind, Parliament has made provision for the party affected by the decision to be able to seek an independent review of the case. At the time, the available review was to the Administrative Appeals Tribunal.

5    The Tribunal had statutory authority to review many types of government decisions. It was constituted by members appointed on the basis of their legal expertise or because of their special knowledge or skills relevant to undertaking the decision-making duties of a member of the Tribunal. All members assumed an obligation to faithfully and impartially perform the duties of their statutory office. The procedure to be followed by the Tribunal was within its discretion. It usually received the material that was before the original decision-maker as well as other relevant material and conducted a hearing where questions may be asked of those who can provide relevant evidence. In particular, the person seeking the review would usually have an opportunity to provide oral evidence to the Tribunal and that evidence would be tested.

6    The person who made the decision was required to assist the Tribunal in making its decision. However, the Tribunal made its own independent decision and was said to 'stand in the shoes' of the original decision-maker in doing so.

7    In a case like the present, the person who made the original decision would not have the benefit of these procedures. Consequently, the Tribunal was likely to have more relevant material compared to that which was before the original decision-maker, including the opportunity to hear evidence from the person affected by the decision.

8    The availability of review by the Tribunal is a serious and important protection for those affected by government decisions. Access to fair and independent review before the Tribunal builds trust in the decision-making of those in whom the power to make decisions is reposed by legislation.

9    In Mr Moli's case, his application to the Tribunal was successful. After a hearing conducted by the Tribunal in which he gave evidence, a decision was made to revoke the cancellation of his visa. As Mr Moli was, by then, eligible for parole, he was released into the community on parole. Thereafter, for some 16 months Mr Moli lived in the community with his partner and two young daughters. There has been no suggestion that during that time he engaged in any criminal or inappropriate behaviour that might bear upon whether he should be allowed to remain in Australia.

10    In making its decision, the Tribunal was required to comply with the terms of a written direction made by the Minister. The terms of the written direction included principles that:

(1)    'The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns'; and

(2)    'Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time'.

11    There were also detailed matters which the Tribunal was required by the written direction to take into account. The 'primary considerations' were:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    whether the conduct engaged in constituted family violence;

(c)    the strength, nature and duration of ties to Australia;

(d)    the best interests of minor children in Australia; and

(e)    expectations of the Australian community.

12    The 'other considerations' were:

(a)    legal consequences of the decision;

(b)    extent of impediments if removed;

(c)    impact on victims; and

(d)    impact on Australian business interests.

13    Further, the written direction provided:

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    Primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

14    There was further detail in the written direction as to what was required. In short, there was considerable direction from the Minister as to the matters to which there was to be regard in making the decision. There is no suggestion that the Tribunal departed from the requirements of the written direction or otherwise made some form of error that might affect the validity of the Tribunal's decision. Had that been the case it would have been open to the Minister to seek review in this Court. There was no such application.

15    The Tribunal published detailed reasons for its decision. They manifest considerable care and reveal a detailed evaluation of the issues. They dealt with the circumstances of Mr Moli's offending, as well as the nature and extent of any risk to the community. Significantly, they also dealt with Mr Moli's connections to family and community in Australia and the consequences for them, particularly his two young children, as well as Mr Moli, if he were removed from Australia. These were consequences to Australian citizens if Mr Moli was not allowed to remain in Australia. The reasons culminated in the following conclusions (paras 200-203):

The Applicant has committed a serious offence of drug trafficking. The community's tolerance for this type of offending is low because of the unacceptable risk it presents of serious harm to the community, perpetuating the trade and consumption of illicit drugs. The Applicant has acknowledged those impacts and regrets his offending. There is a risk he will reoffend, albeit a low risk. Given the nature of his offence the Australian community would expect his visa to remain cancelled.

Balanced against this, the Applicant has made a life in Australia with his Australian citizen partner and young children. His ties to the community through his family and employment history are strong. His children have been raised in Australia among their extended family here, some of whom they live with. The Applicant is committed to parenting his children with his partner and supporting them financially and emotionally. It is in their best interests that the cancellation be revoked. And while his impediments on return to New Zealand are not insurmountable in circumstances where the Applicant has had a history of mental health issues and may face an extended separation from his partner and children, the impediments to his removal to New Zealand cannot be discounted.

[The written direction] states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant's visa and the considerations against revocation, the Tribunal finds that the considerations in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other consideration of the extent of impediments if removed outweigh the considerations against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community.

In summary, having regard to all of the primary considerations, and the relevant other considerations in [the written direction], the Tribunal is satisfied that there is 'another reason' why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the decision not to revoke the cancellation of the Applicant's visa and to substitute a decision that the cancellation of the Visa be revoked.

(original emphasis)

16    Some 16 months after Mr Moli's visa was reinstated, the Minister made a decision to exercise a power conferred personally on the Minister by s 501BA of the Migration Act 1958 (Cth) to set aside and cancel Mr Moli's visa (notwithstanding the Tribunal's decision). The power arose if (a) the Minister was satisfied that Mr Moli did not pass what is referred to as the character test (because of the operation of certain specified aspects of the statutory provisions concerning the character test); and (b) 'the Minister is satisfied that the cancellation is in the national interest'. Mr Moli did not pass the character test in relevant respects by reason of the offence for which he had been sentenced to the term of imprisonment. Therefore, it was the Minister's state of satisfaction as to the national interest aspect of the provision that was of significance.

17    The Minister provided written reasons for the exercise of the national interest power. I set out the Minister's reasoning pathway in my reasons for dismissing the review application: at [8].

18    For present purposes it is sufficient to observe that the Minister expressed his conclusion in the following terms (paras 56-58 of the Minister's reasons):

In deciding whether I am satisfied that it is in the national interest to cancel Mr MOLI 's ... visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

In the specific case of Mr MOLI, I have considered the nature and seriousness of his conduct and I have concluded it is serious. I have also considered the harm that would result if Mr MOLI were to reoffend. I have considered the likelihood of Mr MOLI reoffending and have found that there is a low, but not negligible likelihood that Mr MOLI will reoffend. I have also considered the expectations of the Australian community.

Having regard to all of the above, I conclude that the use of my discretionary power to cancel Mr MOLI 's … visa is in the national interest.

19    In short, the case of Mr Moli was considered by the Minister to be of such significance that the statutory power entrusted to him to set aside and cancel Mr Moli's visa in the national interest arose and was exercised, thereby reversing the Tribunal's decision.

20    In making his decision, the Minister did not express any concern about the Tribunal's reasons or identify any defect in the independent review process that it had conducted. Nor was it suggested that there was some fact or consideration that was relevant to the evaluation of Mr Moli's case that had not been considered by the Tribunal at its hearing and in its reasons. Nor was it suggested that something of significance for the exercise of the power had occurred since the Tribunal's decision. There was no aspect of Mr Moli's circumstances that was identified as giving rise to circumstances that might be regarded as exceptional or that the case had that character or that there was some form of emergency requiring Ministerial intervention. Nor was it suggested that Mr Moli's criminality was within an exceptionally serious category giving rise to a significant threat to the community (noting that the Minister did find the offending conduct of Mr Moli to be serious). Nor was it suggested that there was some form of national or wider significance to his case. Finally, there was no reference in the reasons to the significance of the fact that the exercise of the power would involve overturning the outcome of the independent review process that Parliament itself had established as being an appropriate protection in cases like those of Mr Moli, a process which, as has been explained, required the Tribunal to comply with the Minister's own written direction in reaching its decision.

21    Mr Moli sought review in this Court of the Minister's exercise of power under s 501BA. He was unsuccessful. However, for present purposes, what is significant is that much of the case advanced by Mr Moli in support of his review application concerned whether there was a need for some form of exceptionality of circumstances that qualified in some way the power conferred upon the Minister by s 501BA or the circumstances in which that power might be validly exercised. As to exceptionality, I observed in my substantive reasons (at [34]-[36]):

It can be seen that over the course of the history of the legislative provisions conferring personal powers upon the Minister to revoke or cancel a visa if the Minister is satisfied that it is in the national interest to do so, there have been repeated references in the explanatory materials to the powers being for exceptional cases (variously expressed as: 'seriousness of the circumstances', 'exceptional or emergency circumstances', the power being intended for those instances where the offending has been 'significant' or 'serious' and the power being described as a 'special power').

However, equally, the language used in the various provisions has not been qualified expressly by any such language.

Possibly, the emphasis upon exceptionality reflects the fact that the various 'national interest powers' conferred upon the Minister are to be exercised in the context of the whole of the Migration Act noting that the legislation has as its express object the regulation, in the national interest, of the circumstances in which people who are not citizens can enter, and remain in, Australia. Within that context, a provision that is introduced to confer an additional or special power upon a Minister personally to intervene in the national interest in a way that departs from the consequences that would otherwise flow from those provisions (themselves made in the national interest) may be seen as necessarily contemplating the need for exceptionality of circumstances. Otherwise, such provisions would confer a form of plenary power for the Minister, in the national interest, to take action that was unlimited by the detailed legislative scheme which is Parliament's expression of what is appropriate in that national interest …

(original emphasis)

22    In my view, these matters provided a reasonable basis for the claims raised by Mr Moli. However, they were required to be considered within the state of existing authorities, particularly High Court authorities. After considering those authorities, I did not accept Mr Moli's contention that there needs to be something exceptional about what is said to be in the national interest or that there was error in the Minister's approach: at [106]-[111].

23    Later, a further aspect of Mr Moli's submissions was addressed in the following way (at [125]):

Finally, I observe that the oral submissions for Mr Moli appeared to include a contention that unless there was some requirement for exceptionality as to the matter of national interest then s 501BA conferred a form of unlimited power to cancel the visa. Implicitly, it appeared to be suggested that a law of that kind could not be legislated. Whether a law that conferred a power to cancel a visa on the pre-condition that the Minister was satisfied that an exercise of the power was in the national interest exceeded the limits of legislative power because the breadth of the concept of national interest allowed any instance to meet the pre-condition would be a constitutional question: see [Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1] at [39]-[49]. No submission of that kind was advanced. It would need to confront the conclusion reached in Graham that the concept of the national interest was not unbounded.

24    In my view, the case was one where there were fundamental issues as to the nature and extent of the kind of power that had been conferred by the legislature upon the executive in the form of the Minister.

25    Plainly, Mr Moli's interest in bringing his review application related to his personal circumstances and he was seeking an outcome that would benefit him personally. However, the nature of the contentions he advanced also concerned matters of much broader significance and of considerable importance when it comes to the extent of executive power conferred on the basis that it may be exercised where a Minister is satisfied that it is in the national interest to do so. Section 501BA entrusts to a Minister a power which can be exercised in any circumstance where the Minister personally is of the view that it is in the 'national interest' to exercise the power. Although the power must be exercised within the bounds of reasonableness and rationality, the extent of any real limit upon the exercise of the power is diminished if the expanse within which the power may be exercised is wide. A power that depends upon the Minister's subjective view of that which is in the national interest irrespective of whether there are exceptional circumstances or some form of emergency that affects the nation is a very broad power. Where, as here, the power conferred, if exercised, will be directed to the circumstances of a particular individual and affect them in a fundamental way, the significance of the breadth of the power is heightened.

26    The factual circumstances of Mr Moli's case demonstrated the considerable ambit of the power. Those circumstances appeared to sit awkwardly with the statements made in Parliament at the time the law was enacted to confer the power. All the more so because, in Mr Moli's case, it was an exercise of a particular power to reverse the outcome of an independent tribunal process that had been established by Parliament in the interests of ensuring trust in government decision-making in circumstances that appeared to involve a reconsideration by the Minister of the matters that had been considered by the Tribunal and no more.

27    In short, in my view, the case gave rise to issues of a fundamental kind as to the extent to which Parliament should be taken to have conferred upon the executive a power which could affect the circumstances of an individual in a fundamental way with the matters that would give rise to the power to be determined by the executive.

28    The fundamental significance of the issues raised by the case were not to do with the fact that, in the present instance, the issues as to the nature and extent of the power concerned the law as it applied to migration. Rather, it was because of the nature of the questions raised concerning the approach to be adopted when construing a statutory provision which confers a personal power upon a Minister to make a decision in the 'national interest' to reverse a decision made by an independent tribunal established under the legislation conferring the power. Further, it concerned the extent to which a power of that kind enables the Minister to make a different decision on the material that was before the Tribunal without identifying any new, exceptional or emergency circumstances.

29    Of course, many public law cases brought in the Courts invoke principles that concern the limits of power and are likely to have consequences beyond the particular case. Those aspects in and of themselves do not give rise to special circumstances that would justify departure from the general rule that costs should follow the event. However, in some limited instances, the underlying point at issue is of such broad or fundamental significance to the way in which individuals may be governed that there is a significant public interest in ensuring that the point is authoritatively determined. In my view, for reasons I have given, the present case was of that character.

30    Further, in cases of that kind, it may be appropriate to ensure that concerns as to costs do not operate to stultify the bringing of claims before the courts by individuals who have been adversely affected in a direct and significant way by the exercise of power.

31    As to the significance of that possibility for determining the appropriate order for costs, I refer to the following passage from the reasons of Black CJ and French J in Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [13]:

Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: See Tollefson, 'When the "Public Interest" Loses: The Liability of Public Interest Litigants for Adverse Costs Awards' (1995) 29 University of British Columbia Law Review 303 at 309-311; see also McCool, 'Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article' (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do however indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise.

32    Notwithstanding the authorities to which I referred in my substantive reasons, I regard the particular circumstances of Mr Moli's case as giving rise to close or difficult questions not specifically addressed by those authorities and I would not attribute any fault to Mr Moli in advancing them in the present case.

33    However, it does not follow from that conclusion that the appropriate order as to costs is the order that Mr Moli proposes, namely that there be no order as to costs. It remains relevant that the claim advanced was one in which Mr Moli advanced contentions in his personal interest and sought relief for his own benefit. It is also relevant that Mr Moli's application was not confined to the point concerning the appropriate approach to the nature and extent of the national interest power.

34    Otherwise, the submissions for Mr Moli as to costs raised matters concerning his personal financial circumstances and the consequences for his family if he was ordered to pay costs. Generally speaking, matters of that kind do not bear upon the exercise of discretion. I am not persuaded that they are matters that have significance for the exercise of the discretion in the present case.

35    Unusually, the Court has before it the bill of costs that the Minister would submit if Mr Moli is ordered to pay the costs. That circumstance arises because the Minister sought to submit the bill for taxation even though no costs order had been obtained. The total costs claimed in the bill are $11,188.26. Upon receipt of the bill, the parties were asked to advise whether orders as to costs had been agreed or whether it was proposed by the Minister to seek an order for costs. Solicitors acting for the Minister responded to the effect that there had been an attempt to resolve costs but there had been no response from Mr Moli 'and accordingly seeks an order for costs'. There was no formal attempt to exercise the liberty reserved to the Minister to seek an order for costs. In the result, the matter was listed to consider the question of costs. Mr Moli provided his written submissions.

36    Only after Mr Moli provided his submissions did the Minister file submissions and an affidavit. The affidavit produced a letter from the solicitors for the Minister to Mr Moli dated 29 April 2025 which stated that the Minister's claim for fees and disbursements had been 'formulated' having regard to the Federal Court Rules 2011 (Cth) in the total amount of $9,804.80 but a specified lesser amount would be accepted in full and final satisfaction 'of your liability of the Minister's costs in this matter' (noting that there was no such costs liability at the time). I do not have regard to the amount proposed as it was advanced on a without prejudice basis.

37    The Minister's submissions referred to the bill of costs lodged with the Court on 28 July 2025. The difference between the amount in the letter and the amount in the bill was explained on the basis of the costs of preparing and filing the bill. Otherwise, the submissions sought an order that Mr Moli pay the Minister's costs fixed in the sum of $11,188.26. The Minister submitted that the amount was 'reasonable and commensurate with the circumstances of this matter' and there were no circumstances upon which the Court 'would, in its discretion, be minded to depart from the general presumption that costs should follow the event'. Of course, there was no basis to prepare and file the bill because there was no order as to costs in favour of the Minister.

38    The submissions did not address the matter of public interest raised by Mr Moli in his submissions.

39    At the hearing which was set aside for determining the appropriate order as to costs, counsel for the Minister sought an opportunity to put on written submissions on the question whether the submission for the applicant to the effect that there was a public interest in the subject matter that justified there being no order as to costs. In circumstances where the applicant had filed written submissions in which matters of public interest were relied upon to support no order as to costs and the hearing had been listed to deal with the Minister's application for a costs order, I declined to allow the Minister that indulgence. However, I did allow the Minister to provide references to any authorities to which the Minister would refer on the point together with pinpoint references to passages said to be relevant. The Minister saw fit to deliver further submissions on costs. No leave having been sought or given for the filing of those submissions they have not been accepted. However, consistently with the leave that was given, I have considered the authorities referred to in the submissions.

40    Specifically, the Minister referred to the decision in Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 where the Full Court (Dowsett, Middleton and Gilmour JJ) examined certain authorities concerned with circumstances in which the costs discretion might be exercised in a manner that would mean that costs would not be ordered in favour of the successful party. Their Honours identified 'at least three distinct categories of situation in which a successful party might be deprived of costs': at [11]. However, I do not understand the three categories identified to be exhaustive. As the High Court has explained, special circumstances may justify departure from the usual approach that costs follow the event and the principles that have been developed to guide the discretion should not be applied as rules.

41    Otherwise, I do not regard the authorities referred to by the Minister as causing me to depart from the views I have expressed. I have considered whether it is appropriate to afford Mr Moli a further opportunity to provide authorities in response. I do not consider such a course to be necessary in circumstances where he has provided written submissions as to those matters relied upon to support the order he seeks and the point requires the exercise of a discretion by reference to the nature of the proceedings which is a matter evident to the Court from the record of the proceedings.

42    In all the circumstances, I consider the appropriate order to be that Mr Moli must pay the Minister's costs of the proceedings fixed in the sum of $3,000. There will be an order accordingly.

Associate:

Dated:    10 September 2025