While VCAT is an informal and cost efficient jurisdiction to initiate proceeding in, it is not generally a favorable jurisdiction for litigants seeking an order for costs.

The Victorian Civil Administrative Tribunal (VCAT) takes the prima facie position not to award costs unless there are justifiable grounds for VCAT to exercise its discretion pursuant to Section 109 (3) of the VCAT Act.

The Tribunal applies the test stringently under Section 109 (3) of Act.

Section 109 (3) of the VCAT Act states the following:
  (3)     The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—

        (a)     whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—

              (i)     failing to comply with an order or direction of the Tribunal without reasonable excuse;

              (ii)     failing to comply with this Act, the regulations, the rules or an enabling enactment;

              (iii)     asking for an adjournment as a result of (i) or (ii);

              (iv)     causing an adjournment;

              (v)     attempting to deceive another party or the Tribunal;

              (vi)     vexatiously conducting the proceeding;

        (b)     whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

        (c)     the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

        (d)     the nature and complexity of the proceeding;

        (e)     any other matter the Tribunal considers relevant.

Of course, there are cases where costs have been awarded at the Tribunal.

In Australian Federation of Consumer Organisations Inc. v Tobacco Institute of Australia, 19, Morling J ordered that the respondent pay the applicant’s costs on an indemnity basis.  Morling J stated:

‘I do not think it would be in the public interest for a litigant in the position of the applicant to be heavily out of pocket in consequence of the public spirited action it has taken’.

Costs are an important consideration when choosing which forum to bring proceedings under. Litigants should therefore appreciate that VCAT does not easily give out orders for costs. VCAT will have regard to each of the factors set out under Section 109 (3) and the Tribunal will apply the test stringently.

Written by RSG Lawyers.

Footnotes provided upon request.

If your offshore Australian student visa application has been refused, it does not mean that you are barred from making another application.

However, it is important that you closely consider the Decision Record which will specify the reasons why the Department of Home Affairs (DHA) has refused the visa application as your immigration history (refusal) will be a relevant consideration if you lodge a new Australian student visa application.

You must address the concerns that have been raised by the DHA stated in the Decision Record and further ensure that you meet all of the relevant Australian immigration law criteria in your new visa application.

Some considerations for your new student visa application:

A valid Confirmation of Enrolment (CoE) – if your CoE has expired, you will need to ensure you extend the CoE from the Institute that initially issued it to you. You can also obtain a CoE from a new Institute if you wish.

Financial documents – you must ensure that you have access to the specific amount of funds to cover for your travel, accommodation and study in Australia. If you have previously provided a bank statement from you or your sponsor you may be requested for an up-to-date financial statement.

Notarised or certified documents – it is always best to provide notarised or certified documents to the DHA as this will give the case officer certainty as to the genuineness of the documents you are providing.

GTE and motivational statement – the GTE and motivational statement are very important documents in an Australian student visa application. These documents must specify why you consider yourself to be a Genuine Temporary Entrant and why there is a need for you to study the intended course in Australia. Some factors relevant to both the GTE and motivational statement are your age, the political situation of your Country, your economic circumstances, your educational and work history, what you intend on doing after the completion of your course in Australia and various other considerations. You can view the criteria the DHA uses to assess your student visa under the Ministerial Direction per Section 499 of the Migration Act (you can view it here: https://immi.homeaffairs.gov.au/visa-subsite/files/direction-no-69.pdf).

DHA assessment – please note that it is common for DHA processing officer to contact you by telephone and ask you various questions about the reasons for your study in Australia. This telephone call to you may be without any notice. Therefore, it is imperative that you are well prepared to discuss your application.

RSG Lawyers has assisted many international students in successfully obtaining an Australian student visa. We are immigration lawyers (not agents or consultants). We take care in preparing your application and can assist with the whole process including:

Assistance with obtaining a CoE.
Health Insurance.
Preparation of documents.
Lodgement of the student visa application.

If you require any assistance you are welcome to contact our office through the below mentioned details.

Contact:

admin@rsglaw.com.au

(03) 9350 4440

Footnotes available upon request.

Written by RSG Lawyers, all rights are reserved.