Chen v Minister for Immigration & Multicultural Affairs

1 In this matter, upon the case being called on for hearing, the applicant sought leave to discontinue the proceedings. I granted that leave. The Minister now seeks the costs of the whole proceeding. On behalf of the applicant, it is submitted that there should be no order for costs upon the footing that the reason for the discontinuance was the intervention of a supervening event, namely the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 in May of this year. 2 The proceedings were commenced in December 1998. The applicant sought judicial review of the Minister's decision to refuse a protection visa. There were three grounds relied upon by the applicant. The first was that the procedures required by s 476(1)(a) of the Migration Act 1958 ("the Act") were not observed. The second was that there had been an error of law (s 476(1)(e) of the Act). Thirdly it was said that there was no evidence or other material to justify the decision, reliance was placed upon s 476(1)(g) of the Act.

3 The applicant now accepts that in the light of the decision in Eshetu, the first ground at least was no longer arguable. 4 The relevant procedural history of the proceedings is as follows. 5 The matter was before the Court for directions in February this year. On that occasion it was ordered by consent that the Minister file and serve a bundle of relevant documents by 17 February 1999. This was done. The applicant was directed to file and serve written submissions five working days prior to the hearing date and the Minister was directed to file and serve his submissions two working days prior to the hearing date. The parties were directed to approach my associate for a hearing date. 6 Later in that month, the matter was fixed for hearing today, 22 June 1999. In accordance with the Court's direction, counsel for the Minister prepared written submissions two working days prior to the hearing date, namely 18 June 1999, although that document was not filed and served until yesterday. It appears that on 18 June 1999, counsel for the applicant informed counsel for the Minister that the applicant proposed to discontinue the proceedings. 7 It is, of course, clear that the Court has a judicial discretion in this area. The general parameters of the exercise of this discretion in circumstances such as the present have been authoritatively considered by McHugh J in re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622 at 624-6. See also Mineralogy Pty Ltd v National Native Title Tribunal, Full Federal Court of Australia (Lee, Tamberlin and R D Nicholson JJ), unreported, 23 December 1998; Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119. 8 As McHugh J made clear in Lai Qin, the essential question here is one of judgment, in terms of assessing whether the respective conduct of the parties has been reasonable. In my view, it was reasonable for the Minister to prepare the document being the book described as "relevant documents". I order that the applicant pay the Minister's costs of that preparation. In my view, it was equally reasonable that the Minister's counsel prepare written submissions. Both these steps were taken in accordance with consent directions ordered by the Court. Again, the Minister should have the costs of preparation of those written submissions. 9 In my view, the applicant should not have any of her costs of the proceedings for the reason that, in addition to the Eshetu ground, she relied on the second and third matters I have described, and no explanation has been advanced as to why that aspect of the proceeding was not prosecuted. 10 That leaves outstanding the other costs of the Minister. They consist firstly, of preparation for, and attendance at, the directions hearing in February and preparation and attendance at today's hearing, excluding the preparation of the written submissions, which I have already dealt with. So far as the directions hearing is concerned, I am of the opinion that it was reasonable that the Minister should receive those costs. I so order. So far as today's hearing is concerned, the matter is more difficult. It must be accepted that the High Court in Eshetu reversed the majority decision of the Full Federal Court. However, that decision necessarily could only deal with the general legal principles before the High Court in the circumstances of that case. The High Court did not attempt to deal with the facts or circumstances of any other case, nor of course, of this case. Whilst, therefore, it may be said that the High Court disapproved the statement of the general legal principles in the procedural area of s 476(1)(a) of the Act expressed in the majority decision of the Full Federal Court, it does not follow that. even if the Full Federal Court decision had stood, relief of the kind granted by this Court by majority in Eshetu would have been granted in this case. 11 However, no attempt was made to argue this point on behalf of the Minister. In that respect, I am prepared to follow the reasoning of the Full Federal Court in the Mineralogy Case and to rule that the reversal of the majority's view by the decision of the High Court in Eshetu, is an event which should not be laid at the feet of the applicant. In other words, if this were the only ground that had been relied upon by the applicant in her application for review. I would have made no order for the costs of today's hearing. 12 But, as the Minister's counsel has pointed out, there were the other two grounds advanced by the applicant in her initiating process. They have not been pursued and no explanation has been given, except that one was abandoned in particulars, namely, the no evidence ground. It follows that the error of law, that is, the second ground raised in the application for judicial review, remained on foot, independently of the outcome in the High Court in Eshetu. In all those circumstances, I think a fair exercise of the discretion is to allow the Minister one-half of his costs of today's hearing, but otherwise to make no order for the costs of today's hearing.