Federal Court. Did the Federal Circuit and Family Court (FCC) deny the appellant Minister procedural fairness? Is the question of whether the FCC denied the Minister procedural fairness one of law? If so, is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?
The non-citizen Respondent applied to the Federal Circuit and Family Court (FCC) for judicial review of a decision of the Tribunal.
At the hearing before the FCC, the Respondent's advocate finished his oral submissions in chief, at the end of which the Court adjourned as follows:
[Advocate for the Respondent]: Your Honour, I’ve finished what I wanted to say, unless your Honour has any questions of me.
HIS HONOUR: No. Thank you, [Advocate for the Respondent]. Do you rely on your written submissions, [Advocate for the Appellant]?
[Advocate for the Appellant]: Yes, your Honour.
HIS HONOUR: Yes. The court will reserve its decision. Thank you for your assistance. Adjourn the court.
The FCC allowed the Respondent's judicial review application, remitting the review application to the Tribunal. The Minister then appealed from the FCC's decision to the Federal Court (FCA), claiming that the FCC denied the Minister procedural fairness.
The Respondent was then granted a permanent visa and withdrew the review application that was remitted to the Tribunal. As a result, the parties submitted that the FCA should dismiss the application for judicial review without adjudication on the merits of that application.
Section 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) provided as follows:
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
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the FCC deny the Minister procedural fairness?
Question 2: Should the FCA dismiss the application for judicial review without adjudication on the merits of that application?
Question 3: Is the question of whether the FCC denied the Minister procedural fairness one of law?
Question 4: If the question before the FCA were whether the Tribunal had made a jurisdictional error in the form of a denial of procedural fairness, would that be a question of law?
Question 5: If the answer to Question 3 is 'yes', is it appropriate that a costs certificate be granted to the Respondent in relation to the costs of the appeal?
The FCA answered those questions as follows: