Alameddine v Minister for Immigration

[2016] FCCA 637

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAMEDDINE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 637

Catchwords:
MIGRATION – Review of a decision of a Ministerial delegate to refuse to waive a “no further stay” condition on the applicant’s visa – waiver subsequently granted – discontinuance of the show cause application.

COSTS – Discretion to order that there be no order as to costs so as to avoid injustice.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: OMAR ALAMEDDINE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 778 of 2015

Judgment of: Judge Driver

Hearing date: 23 March 2016

Delivered at: Sydney

Delivered on: 23 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application filed on 23 March 2015 is taken to have been discontinued at 3.45pm on 23 March 2016.

2. There will be no order as to the costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 778 of 2015

OMAR ALAMEDDINE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 23 March 2015 seeking review of a decision of a delegate of the Minister not to waive a no further stay condition on the applicant, Mr Alameddine’s, visa.  The background to this matter is set out in written submissions filed by the Minister on 17 March 2016. 

2. Mr Alameddine is a citizen of Lebanon who arrived in Australia in 2010.

3. On 24 July 2013, Mr Alameddine's first request for the Minister to waive the no further stay condition was refused.

4. On 16 February 2015, Mr Alameddine lodged a second request to the Minister to waive the no further stay condition (waiver request). On 10 March 2015, the Delegate refused the waiver request.

5. On 23 March 2015, Mr Alameddine filed an application for judicial review of the Delegate's decision.

6. On 16 April 2015, this Court[1] summarily dismissed the application for judicial review. On 7 May 2015, Mr Alameddine filed an application in the Federal Court for an extension of time and leave to appeal the orders made by this Court.

   [1] Judge Street

7. On 23 July 2015, the Federal Court[2] made orders by consent that Mr Alameddine be granted an extension of time and leave to appeal; the appeal be allowed; and the matter be remitted to this Court differently constituted.

   [2] Griffiths J

8. On remittal, a registrar made procedural orders on 27 August 2015 to prepare the case for a show cause hearing.  The matter came before me today for that show cause hearing. 

9. I received subject to relevance Mr Alameddine’s affidavit supporting his application made on 20 March 2015 and the court book filed on 9 September 2015.

10. Mr Alameddine denied receipt of the court book, but exhibit R1 establishes that it was sent to him by ordinary prepaid post under cover of a letter dated 10 September 2015.  I accept nevertheless that Mr Alameddine, for some reason, did not receive the court book.  I have provided him for the purposes of today’s hearing the original from the court file. 

11. I then invited oral submissions from Mr Alameddine.  It transpired in the course of those submissions that Mr Alameddine has been successful in obtaining the waiver of the no further stay condition on his visa, apparently as a result of a third application by him for that waiver.

12. Exhibit R2 is a letter dated 6 January 2016 to Mr Alameddine from the Minister’s Department confirming the approval of his request for waiver of the condition.  It follows, in my opinion, that these proceedings have become moot.  The question then is what should happen to the proceedings.  I explored the various options with Mr Alameddine.  He said that he would be willing to discontinue his application, but he was concerned about the issue of costs.  So, as it transpires, is the Minister. 

13. Exhibit R3 is correspondence from the Minister’s solicitors to Mr Alameddine dated 16 March 2016.  In that correspondence the Minister’s solicitors proposed, in the knowledge of the approval of the waiver of the condition, that the show cause application be dismissed with costs fixed in the sum of $3,416.  It appears that Mr Alameddine did not respond to that proposal and came to today’s hearing with the apparent intention of seeking an adjudication of the application.  The costs sought by the Minister would have been the same if the application had been dismissed today.  The question in my mind is whether any costs order at all is appropriate in the present circumstances.

14. The Minister has incurred costs of two hearings in this Court.  The orders made on the first occasion were set aside on appeal, and that is not the fault of either party.  Prior to today’s hearing, as I have observed, the issues in the case became moot when Mr Alameddine obtained the approval of his request to waive the condition on his visa.  At that point it is hard to discern what useful purpose was served by the continuation of the proceedings save for the issue of costs.  Mr Alameddine has no legal training that I am aware of, but he saw the sense of a discontinuance.

15. Having been successful on appeal in the Federal Court and having obtained what he was seeking through these proceedings and otherwise it seems to me that it would not be just for him to bear the Minister’s legal costs.  There is no entitlement for any party to receive costs following a legal proceeding.  The matter falls within the discretion of the Court, and that discretion is a very broad one.  In the unusual circumstances of this case I have formed the view that there should be no order as to costs. 

16. I will order that application filed on 23 March 2015 is taken to have been discontinued at 3.45pm on 23 March 2016.

17. I will further order that there be no order as to costs of the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 March 2016