BLF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The parties confer and within 7 days submit agreed short minutes of order giving effect to these reasons for judgment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 The parties have reached agreement on orders disposing of the appeal. However, they remain in dispute on the question of costs. The Appellant seeks his costs of the appeal and in the court below. The First Respondent ('the Minister') says that there should be no costs order before either court. 2 The question of costs arises in a circumstance which is unusual. The appeal concerns the Appellant's successful efforts to have a decision cancelling his visa set aside. This visa was cancelled by a delegate of the Minister and then the Administrative Appeals Tribunal ('the Tribunal') on review because each was satisfied that the Appellant had committed certain criminal offences. The consequence of such a cancellation is that the Appellant would be unable for a period of time to apply again for a visa. 3 All parties are now agreed that the Appellant never made a valid application for the visa. They are also agreed that the effect of this is that neither the delegate nor the Tribunal on review had any power to cancel the visa. The effect of this from the Appellant's perspective is that whilst he does not have the visa, he is not a person who has had his visa cancelled. He remains at liberty to apply for another one. 4 It is evident from the reasons of the court below that the Appellant did pursue an argument that his visa did not exist in law so that its purported cancellation was erroneous. The primary judge recorded this argument at [81]. The primary judge rejected this argument at [147] concluding that whilst it was contrary to the Migration Act 1958 (Cth) to have issued the visa this did not result in invalidity. 5 Since the primary judge reached that conclusion, this Court has reached the contrary conclusion in another case: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 ('CBW20'). The High Court refused special leave to appeal on 10 December 2021: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] HCATrans 217. The evidentiary basis on which CBW20 rested was not identical with the evidentiary basis on which this case proceeded. 6 This matter began to be heard by the Full Court but that hearing was adjourned whilst CBW20 was determined. Subsequent to the decision in CBW20 the Minister sought to put on further evidence in the appeal. On 23 December 2021 on the recommendation of the judges hearing this case the Chief Justice determined that further consideration of the matter should be reserved to a single judge. Subsequent to that the parties reached agreement on all orders except costs including that the Minister should be entitled to rely on the fresh evidence. 7 The general rule where there is a compromise of a proceeding is that there should be no order as to costs: see Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 ('Re Lai Qin') at 624-625 per McHugh J. A significant consideration is the need to avoid trying the substance of the matter in order to determine a satellite matter such as costs: 624. 8 Nevertheless, the Court retains a discretion in the matter. In my view, the Appellant has obtained the Minister's agreement to his basic contention viz that his visa was not cancelled. In Re Lai Qin the judicial review proceeding before McHugh J became moot when the Minister determined to grant the prosecutor a protection visa. It was held that there should be no order as to costs. That is not this situation. Here the Appellant sought to demonstrate at trial that his visa should not have been cancelled. He has successfully had that conclusion overturned. It would appear to follow that he is entitled to his trial costs. 9 Insofar as the appeal is concerned, the correct characterisation would appear to be that the Minister had acceded to the correctness of the Appellant's case and has consented to orders which make it unnecessary for the appeal to be decided. This is a compromise of the kind contemplated in Re Lai Qin. The appropriate order is that there should be no order as to costs in relation to the appeal. 10 The parties should bring in a minute of order giving effect to this conclusion and to the agreement they have otherwise reached. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.