Bowman v Commonwealth of Australia - [2022] FCA 594

FEDERAL COURT OF AUSTRALIA
Bowman v Commonwealth of Australia [2022] FCA 594

File number(s): VID 161 of 2021

Judgment of: MORTIMER J

Date of judgment: 20 May 2022

Catchwords:
PRACTICE AND PROCEDURE – where applicant seeking relief related to immigration detention and removal from Australia was granted a visa after judgment reserved –– whether proceeding should be dismissed or permanently stayed – proceeding dismissed

COSTS – whether court should make an order for costs where no judgment on the merits of the applicant’s claims is to be delivered – competing claims for costs – consideration of Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 – no orders as to costs

Legislation:
Migration Act 1958 (Cth), ss 13, 14, 189(1), 196(1), 198, 476A(1)

Federal Court Rules 2011 (Cth), r 26.12(7)

Migration Regulations 1994 (Cth), Schedule 2, cl 101.511

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), s 5

Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 57.02

Cases cited:
AZC20 v Minister for Home Affairs [2021] FCA 1234

Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747

Chamoun v Commonwealth of Australia [2021] FCA 740

Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562

DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793

Gould v Deputy Commissioner of Taxation [2010] FCA 1489

Grant v Secretary of Department of Home Affairs [2022] FCA 261

La Roche v Cormack [1991] FCA 917; 33 FCR 414

MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194

Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622

Te v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 15; 204 ALR 497

United States of America v Griffiths [2004] FCA 895

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 65

Date of last submission: 10 May 2022

Date of hearing: 16-17 November 2021

Counsel for the Applicant: Mr M Albert with Mr S Rajanayagam

Solicitor for the Applicant: WLW Migration Lawyers

Counsel for the Respondents: Mr R Knowles QC with Ms L Mills

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 161 of 2021

BETWEEN:
RODGER BOWMAN (A PSEUDONYM)

Applicant

AND:
THE COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

ORDER MADE BY:

MORTIMER J

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:
1.The proceeding be dismissed, without adjudication on the merits.
2.Each party bear their own costs of the proceeding, including any reserved costs.

Note: Entry of orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FCA 594
Decision Date: 20 May 2022

CaseChat Overview and Summary

Bowman was the applicant in a proceeding against the Commonwealth of Australia, seeking relief related to his immigration detention and removal from Australia. After the judgment was reserved, Bowman was granted a visa, rendering the proceeding moot. The Federal Court was required to determine whether the proceeding should be dismissed or permanently stayed, and whether an order for costs should be made in light of the mootness and the absence of a judgment on the merits.

The court held that it was inappropriate to express any views about the likelihood of the applicant succeeding in the proceeding, as part of its consideration of the costs discretion. It found that no orders as to costs should be made, in line with the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin. The court dismissed the proceeding without adjudicating on the merits.

The proceeding was dismissed, without adjudication on the merits, and there was no order as to costs. Each party bore their own costs of the proceeding, including any reserved costs. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The proceeding be dismissed, without adjudication on the merits.

2. Each party bear their own costs of the proceeding, including any reserved costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For similar reasons I consider it inappropriate to express any views about the likelihood the applicant may have succeeded, as part of my consideration of the costs discretion.CONCLUSION The proceeding will be dismissed, and there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	VID 161 of 2021
Judgment of:	MORTIMER J
Date of judgment:	20 May 2022
Catchwords:	PRACTICE AND PROCEDURE – where applicant seeking relief related to immigration detention and removal from Australia was granted a visa after judgment reserved –– whether proceeding should be dismissed or permanently stayed – proceeding dismissed COSTS – whether court should make an order for costs where no judgment on the merits of the applicant’s claims is to be delivered – competing claims for costs – consideration of Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 – no orders as to costs
Legislation:	Migration Act 1958 (Cth), ss 13, 14, 189(1), 196(1), 198, 476A(1) Federal Court Rules 2011 (Cth), r 26.12(7) Migration Regulations 1994 (Cth), Schedule 2, cl 101.511 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), s 5 Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 57.02
Cases cited:	AZC20 v Minister for Home Affairs [2021] FCA 1234 Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 Chamoun v Commonwealth of Australia [2021] FCA 740 Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562 DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 Gould v Deputy Commissioner of Taxation [2010] FCA 1489 Grant v Secretary of Department of Home Affairs [2022] FCA 261 La Roche v Cormack [1991] FCA 917; 33 FCR 414 MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Te v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 15; 204 ALR 497 United States of America v Griffiths [2004] FCA 895
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	65
Date of last submission:	10 May 2022
Date of hearing:	16-17 November 2021
Counsel for the Applicant:	Mr M Albert with Mr S Rajanayagam
Solicitor for the Applicant:	WLW Migration Lawyers
Counsel for the Respondents:	Mr R Knowles QC with Ms L Mills
Solicitor for the Respondents:	Australian Government Solicitor

ORDER MADE BY:	MORTIMER J
DATE OF ORDER:	20 MAY 2022