Minister for Immigration and Citizenship v SZNCR (No 2) [2011] FCA 545

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZNCR (No 2) [2011] FCA 545 Citation: Minister for Immigration and Citizenship v SZNCR (No 2) [2011] FCA 545

Appeal from: SZNCR v Minister for Immigration & Citizenship & Anor [2010] FMCA 45

Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZNCR and REFUGEE REVIEW TRIBUNAL

File number: NSD 149 of 2010

Judge: TRACEY J

Date of judgment: 26 May 2011

Catchwords: COSTS – discretion to award – whether to issue and unsuccessful respondent on appeal a costs certificate

Legislation: Federal Proceedings (Costs) Act 1981(Cth) ss 3, 6 Migration Act 1958 (Cth) s 425

Cases cited: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 cited Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 followed

Date of hearing: 6 August 2010

Date of last submissions: 16 May 2011

Place: Melbourne (heard in Sydney)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 9

Counsel for the Appellant: S B Lloyd SC and T Reilly

Solicitor for the Appellant: DLA Phillips Fox

Counsel for the Respondents: J R Young

Counsel for the Respondents: McLaughlin & Riordan

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 149 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND: SZNCR

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 26 may 2011 WHERE MADE: MELBOURNE (heard in sydney)

THE COURT ORDERS THAT:

1. The First Respondent be granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the First Respondent in respect of the costs incurred by him in relation to the appeal and in respect of the costs incurred by the Minister in relation to the appeal which have been required by the Court to be paid by the First Respondent by Order 2, made herein on 15 April 2011. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 149 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND: SZNCR

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J DATE: 26 may 2011 PLACE: MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 On 15 april 2011 I allowed the Minister's appeal in this proceeding and ordered that the First Respondent pay the Minister's costs of the appeal: see Minister for Immigration and Citizenship v SZNCR [2011] FCA 369. 2 The First Respondent applied to the Court for an order granting him a certificate in respect of the appeal pursuant to s 6(1) of the Federal Proceedings (Costs) 1981 (Cth) ("the Act"). 3 Section 6 of the Act relevantly provides: "(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. (2) …. (3) The certificate that may be granted under subsection (1) and (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 is granted under section 7 relates." 4 A "Federal appeal" is defined, in s 3 of the Act, to include an appeal to this Court from a judgment of the Federal Magistrates Court: see s 3(1)(fa). This was such an appeal. 5 The Minister succeeded on a number of grounds. Two of those grounds related to the construction and application of s 425(1) of the Migration Act 1958 (Cth). In dealing with the First Respondent's application, the Federal Magistrate had followed a line of authority which had developed in the Federal Magistrates Court but which, after the Federal Magistrate's decision had been handed down, had been overruled by a Full Court of this Court. That Full Court granted the respondent in that appeal a certificate under s 6(1) of the Act: see Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102. 6 The Full Court held that the result achieved by the Minister, in that appeal, had implications well beyond the outcome of the particular appeal. No matters were suggested which would have disentitled the respondent from being granted a certificate. The Full Court also had regard to the fact that the existence of a debt to the Commonwealth could provide a reason for the respondent being refused a visa other than a protection visa. In these circumstances, and in the exercise of what the Full Court considered to be the broad discretion conferred on the Court by s 6(1) of the Act, it determined that a certificate should be granted. 7 All of the considerations which favoured the granting of a certificate in SZNVW (No 3) are present in this appeal. 8 The Minister neither consented to nor opposed the granting of a certificate. 9 A certificate should be issued to the First Respondent pursuant to s 6(1) of the Act. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate: Dated: 26 May 2011