FEDERAL COURT OF AUSTRALIA Buksh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 32 ABDUL SAHEEM BUKSH, SHARIFA SAHIDA BUKSH, ABDUL SHALMAN BUKSH & SHAHIL SHAIBAAN BUKSH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 460 OF 2003 MANSFIELD J 30 JANUARY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 460 OF 2003 BETWEEN: ABDUL SAHEEM BUKSH, SHARIFA SAHIDA BUKSH, ABDUL SHALMAN BUKSH & SHAHIL SHAIBAAN BUKSH APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 30 JANUARY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The solicitor for the applicants Mark Wallis Clisby pay the costs of the respondent on the application up to and including 24 October 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 460 OF 2003 BETWEEN: ABDUL SAHEEM BUKSH, SHARIFA SAHIDA BUKSH, ABDUL SHALMAN BUKSH & SHAHIL SHAIBAAN BUKSH APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 30 JANUARY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This application was discontinued by leave given on 18 December 2003. At the time the leave was given, the applicants were ordered to pay the costs of the respondent of the application. The respondent also sought orders that the solicitor for the applicants pay the respondent's costs of the application up to and including 24 October 2003, or alternatively from 28 June 2003 (being two months after the filing of the application) up to and including 24 October 2003. The foundation for the application by the respondent is said to be that the solicitor for the applicants seriously failed to give reasonable attention to the relevant facts and the law at any time material to the application. 2 The application was issued on 28 April 2003. It sought prerogative orders, including the quashing of a decision of the Migration Review Tribunal (the Tribunal) made on 14 April 2003. The application was not then addressed, in the circumstances to which I will refer below, until 24 October 2003. Upon that date the respondent issued a notice of motion that the application be summarily dismissed under O 20 r 2 of the Federal Court Rules, on the ground that it had no reasonable prospect of success. The motion was listed for hearing on 18 December 2003. The notice of the proposed discontinuance was given on 16 December 2003. 3 It is implicit in the respondent's submissions that the period from 24 October 2003 should have been used, and was used, for the purposes of completing instructions and investigations with a view to properly advising in relation to the matter. I am asked to infer that, in the light of the advice then given, the application was discontinued. I infer that the advice given was that there was no real prospect of success in the application. No other reason for the discontinuance of the application has been suggested. It is upon that basis, as I understand it, that the claim for costs is limited to the period up to and including 24 October 2003. 4 I discussed, in the context of an application such as at present, principles which should guide the Court in making an order for costs against the solicitor for an applicant in the matter of Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 18 (Kumar). I will not repeat that discussion. I will apply those principles in this matter. 5 I have come to the conclusion that it is appropriate to accede to the application of the respondent that the solicitor for the applicants pay to the respondent the costs of the application up to and including 24 October 2003. 6 To explain the reasons for that decision, it is necessary to refer in a little detail to the nature of the application, including the visa which was the subject of the initial application. 7 The principal applicant is a Fijian national who entered Australia on a Medical Treatment (Visitor) Class UB Subclass 685 (Medical Treatment (Long Stay)) visa (the medical visa) on 4 February 1996. He entered Australia with his wife and one son. A son was subsequently born whilst they were in Australia. The visa was valid to 4 February 1998. On 28 January 1998 the applicant, and his wife and two sons as secondary applicants, applied for a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa (the visa). To be eligible to be granted the visa it was necessary that the applicant satisfy the criteria for the grant of the visa specified in the Migration Regulations 1994 (Cth) (the Regulations). If the delegate of the respondent, and on review the Tribunal, was not satisfied that each of the criteria were met, then s 65 of the Migration Act 1958 (Cth) (the Act) directed that the application for the visa should be refused. 8 There were two criteria specified in Sch 2 to the Regulations which caused the Tribunal to affirm the decision of a delegate of the respondent to refuse to grant the visa sought by the applicant. That decision also led the Tribunal to determine that the secondary applicants also were not entitled to the visa. 9 The first criterion is that specified in cl 457.211 of Sch 2 to the Regulations, a criterion required to be satisfied at the time of the application, namely that the applicant be the holder of one of a series of specified visas. It applied because the application was made in Australia. The medical visa is not a specified visa. Consequently, the applicant could not satisfy, and did not satisfy, the criterion for the grant of the visa specified in cl 457.211 of Sch 2 to the Regulations. 10 Secondly, relevant to the grant of his application, the applicant had to satisfy at the time of the Tribunal's decision the criteria specified in cl 457.223(4) or (5) of Sch 2 to the Regulations. Clause 457.223(4) requires the applicant be nominated to be employed in Australia by an employer who is a pre-qualified or standard business sponsor. Clause 457.223(5) relevantly required the applicant to be nominated to be employed in Australia by an employer who does not operate a business activity in Australia and who had satisfied certain attributes. The application for the visa specified as a proposed employer an employer within Australia who is not and was not a business sponsor. The proposed employer had not been approved as a business sponsor. The proposed employer had sought review by the Tribunal of a decision refusing that employer approval as a business sponsor. On 19 February 2003, the Tribunal affirmed the decision of a delegate of the respondent not to approve the proposed employer as a business sponsor. Consequently, at all times, including critically at the time of the Tribunal's decision, the applicant was nominated to be employed in Australia by an employer who was not an approved business sponsor. He did not therefore meet the criteria in cl 457.223(4) or (5) of Sch 2 to the Regulations. 11 Clause 457.321 then provided that members of his family unit, as secondary applicants, could also not be eligible for the grant of the visa as it was necessary for the applicant to have satisfied the primary criteria for the grant of the visa before they themselves became eligible. 12 The application, when made, contained the following grounds: '1. That a breach of the rules of natural justice occurred in connection with the making of the Decision. 2. That the Applicants were denied procedural fairness in connection with the making of the Decision. 3. That the Decision involved an error of law, whether or not the error appears on the record of the Decision. 4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed. 5. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 6. That there was no evidence or other material to justify the making of the Decision. 7. That the Decision was otherwise contrary to law.' There were no particulars. Order 4 r 6 of the Federal Court Rules required the application to have been accompanied by an affidavit showing, inter alia, the material facts on which the application is based. The application was in fact supported by an affidavit of the solicitor for the applicants which simply annexed a copy of the Tribunal's decision. It did not otherwise assert any material facts upon which the application was based. 13 In this matter, there is no explanation for the manner of expression of the application. It does not appear to relate in any way to the reasons for decision of the Tribunal. There has been no suggestion that the Tribunal erred in the process by which it came to its decision. The material on the motion includes correspondence sent by the Tribunal to the applicant pursuant to s 359A of the Act of the letter giving him notice of information which the Tribunal considered would be the reason for affirming the decision under review, so that the applicant could comment upon it. Nothing was put on the argument as to costs to suggest there is any merit in any of the assertions of error of law, failure to comply with procedures, and improper exercise of the power, or the absence of evidence available to justify the making of the decision, made in the application. 14 It would appear, therefore, that the solicitor for the applicants did not give attention to the claim in any meaningful way before it was instituted, and did not give any advice to the applicants as to their prospects of success on the application, before it was instituted. I reach those conclusions from my consideration of the terms of the application, the grounds upon which the Tribunal's decision was based, together with the inadequacy of the affidavit in support of the application and the absence of any factual material or legal argument suggesting some foundation for the application. I also infer, as I have indicated above, that upon the solicitor for the applicants giving appropriate consideration to the matter, and giving advice to the applicants to the effect that the application had little or no prospect of success, the applicants determined not to proceed with it and to discontinue it. 15 In those circumstances, subject to one consideration, it seems to me that this is a case in which there can be shown to be a serious failure on the part of the solicitor for the applicants to give reasonable attention to the relevant law and facts at any time prior to the filing and service of the notice of motion of 24 October 2003. The failure to do so, in this instance, in my view amounts to a serious dereliction of duty which has occasioned needless costs to the respondent. 16 The one reservation concerns the timing of the application. Section 477(1A) and (2) of the Act obliges the application to have been instituted (provided there was no jurisdictional error on the part of the Tribunal) within 28 days of the Tribunal's decision. Shortly before the present application, on 4 February 2003, the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 317 had given judgment dealing with the effect of s 474 of the Act. It is not necessary at present to refer to that judgment in any detail. It demonstrated that, in the case of jurisdictional error on the part of the Tribunal, an application under s 39B of the Judiciary Act 1903 (Cth) might be brought to the Court of the nature of the present application notwithstanding the privative clause provision in s 474 of the Act and, arguably, notwithstanding the time limitation purportedly imposed by s 477 of the Act. Even if the 28 day time limit did not apply, the potential for the applicants as illegal non-citizens to be placed in immigration detention under s 189 of the Act and to be deported pursuant to s 198 of the Act would warrant prompt proceedings before full investigation and advice concerning the prospects of success. 17 However, it is not simply sufficient to note the brevity of time arguably available to the applicants and their solicitor to consider the Tribunal's judgment and to give instructions concerning it. It may be accepted that the applicants gave instructions to the solicitor for the applicant to institute the application. But this matter is unlike the matter of Kumar. There the complaints ultimately made concerned the process by which the Tribunal came to reach its decision, and therefore involved the possible need for some period of investigation as to the means by which the Tribunal came to reach its decision including the communications passing between the applicant, his migration agent, and the Tribunal. In this matter, the material on the motion includes correspondence sent by the Tribunal to the applicant pursuant to s 359A giving him notice of information which the Tribunal considered would be the reason for affirming the decision under review so that the applicant could comment upon it. Nothing was put on the argument as to costs to suggest any failure by the Tribunal to accord procedural fairness to the applicant. The application for the visa failed because two criteria for its issue were not met. That is apparent from the Tribunal's reasons. They are self-evidently correct. The contrary has not been suggested. No detailed consideration was necessary to recognise that obstacle to any challenge to its decision. 18 The period between the Tribunal's decision and the present application is such as to have enabled the applicants' solicitor to have given its reasons some consideration and to have given some advice as to whether there was any apparent prospect of the application succeeding. In some cases, such consideration will suggest the need for further legal research or further factual investigation or both. There is nothing to suggest that that was the case in this matter. The Tribunal's reasons for its decision were clear and apparently irrefutable. No submission to the contrary has been put. Consequently, in my view, this is a matter where the solicitor for the applicants should have seen on the face of the Tribunal's decision that there was no basis upon which the application could succeed. Such a judgment could readily have been made upon a cursory examination of the Tribunal's decision. The institution of proceedings in those circumstances did a disservice to the applicants. It inappropriately engaged the time of the Court. It exposed the respondent to costs which she ought not to have incurred. 19 In those circumstances, in my judgment it is appropriate that the order for costs sought should be made. I order that the solicitor for the applicants be liable for the costs of the respondent on the application up to and including 24 October 2003. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 28 January 2004 Counsel for the Applicant: M W Clisby Solicitor for the Applicant: M W Clisby Counsel for the Respondent: Mr K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 December 2003 Date of Judgment: 30 January 2004