AZH17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 610
•9 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZH17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 610
File number(s): MLG 471 of 2017 Judgment of: JUDGE EGAN Date of judgment: 9 July 2024 Catchwords: MIGRATION – COSTS – Whether the discontinuance of a proceeding brought about by the Taliban overthrow of the Afghanistan government ought to result in an adverse costs order against the applicant – whether the Minister was unreasonably responsible for delay in making a decision about the raising of the bars – where proceedings futile after the raising of the bars – appropriate order is that there be no order as to costs. Legislation: Migration Act 1958 (Cth) ss. 46A and 48B Cases cited: Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at [625] Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 21 August 2023 Date of hearing: 13 December 2022 Place: Brisbane Solicitor for the Applicant: Ms N. Merlino Solicitor for the First Respondent: Mr M. Daly Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 471 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZH17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 JULY 2024
IT IS ORDERED THAT:
1.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The applicant commenced this proceeding by the filing of an Application for Review on 9 March 2017. The applicant was then an Afghan citizen from the Hazara ethnic group fleeing the Taliban.
As a result of the overthrow of the Afghan government in August 2021, it was made clear by Ministerial Statement that those in the position of the applicant, whose legal status was at the time unresolved, would not be forcibly returned to Afghanistan. Such approach was entirely understandable and reasonable. People in the position of the applicant were instead encouraged by the Minister to seek the lifting of the bars pursuant to the provisions of ss. 46A and 48B of the Migration Act 1958 (Cth) (“the Act”).
The applicant applied to lift the bars on 27 September 2021.
Because a decision on the bar lift applications was pending, the applicant sought an adjournment of the hearing of the matter before this Court until such time as the Minister had made a decision. The Court granted each adjournment application made to it on behalf of the applicant. The lawyers for the first respondent had opposed the adjournment applications.
On or about 24 July 2023, the relevant bars were lifted by the Minister. It was submitted on behalf of the applicant that the Minister’s delay between about August/September 2021 and July 2023 remains unexplained.
On 8 August 2023, by reason of the lifting of the bars, the Court granted leave to the applicant to file and serve a Notice of Discontinuance in the proceeding. The costs question which has arisen as between the parties requires a determination as to whether either party should pay the other party’s costs, or whether there should be no order as to costs.
The presence in Australia of Afghan citizens of Hazara ethnicity at the time of the Taliban takeover of government in Afghanistan gave rise to a very real prospect that if such people were returned to Afghanistan, they would be killed. To the extent that the bars were lifted, fresh protection visa applications have, for the most part, been made on behalf of those Hazaras in Australia.
The actions of the Minister, in terms of delay in making a decision about lifting the bars, ought not to be scrutinized too keenly. There were many competing interests to be taken into account in what was a highly volatile humanitarian and geo-political environment. That there was delay was understandable bearing in mind the whole host of considerations which necessarily needed to be taken into account before a decision about bar lifting was made.
The applicant properly cited the decision of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at [625] where His Honour said: [1]
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
[1] Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at [625] per
McHugh J
The Court is of the view that the factual scenario in the present matter ought not to be viewed through the prism of the usual filing of a Notice of Discontinuance. Similarly, the Court is not of the view that usual cost considerations consequent upon the filing of any such notice ought to apply.
In circumstances where a humanitarian crisis has arisen, and where such crisis has had a substantial impact upon the conduct of litigation in Australia, the Court considers that usual cost considerations ought be set to one side. The continued litigation between the parties became futile after the relevant lifting of the bars. Such was not the fault of either party. To the extent that the Court granted adjournments, the Court itself exercised its powers for such to occur.
In all of the circumstances, the Court is of the view that the proper order is that there be no order as to costs.
And it is so ordered.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan . Associate:
Dated: 9 July 2024
0
1
1