CGP21 v Minister for Home Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11

File number(s): SYG 1532 of 2021
Judgment of: JUDGE DRIVER
Date of judgment: 1 September 2021
Catchwords: MIGRATION – Application for mandamus to compel making of a decision on a visa application – application to the Court premature and circumstances of the applicants rapidly changing – mandamus refused – no award of costs.
Legislation:

Migration Act 1958 (Cth) ss 63, 65, 474

Migration Regulations 1994 (Cth)
Cases cited:

AFX17 v Minister for Home Affairs [2020] FCA 807

AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424

ASP15 v Commonwealth (2016) 248 FCR 372

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

CMA19 v Minister for Home Affairs [2020] FCA 736

Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285

FGS20 v Minister for Home Affairs [2021] FCCA 753

FGS20 v Minister for Home Affairs [2021] FCA 874

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

P & C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

R v Building Controller; Ex Parte Marinov (1981) 36 ACTR 13

Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577

SZMNF v Minister for Immigration and Citizenship [2008] FMCA 983

Thornton v Repatriation Commission (1981) 35 ALR 485

Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767
Division: Division 2 General Federal Law
Number of paragraphs: 59
Date of hearing: 1 September 2021
Place: Sydney
Solicitor for the Applicants: Mr D Taylor with Ms N Harendran of Sydney West Legal and Migration
Counsel for the First, Second and Fourth Respondents: Ms C Roberts
Solicitor for the Third Respondents: Mr J Hutton of Australian Government Solicitor
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

SYG 1532 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGP21

First Applicant

CGR21

Second Applicant

CGS21 (and others named in the Schedule)

Third Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

1 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application lodged on 6 August 2021 and filed on 12 August 2021 is dismissed.

2.There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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…

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Details
Case
[2021] FedCFamC2G 11
Decision Date

CaseChat Overview and Summary

In the case of CGP21 v Minister for Home Affairs, the applicants sought a writ of mandamus to compel the Minister for Home Affairs to make a decision on their visa applications. The applicants, who were based in Afghanistan, were seeking to reunite with their father who was residing in Australia. The case was heard in the Federal Circuit and Family Court of Australia, with the applicants represented by a legal team and the Minister represented by the Department of Home Affairs. The legal issues before the court were whether the applicants had a right to compel the Minister to make a decision on their visa applications, and whether the application was premature given the rapidly changing circumstances in Afghanistan.

The court found that the applicants did not have a right to compel the Minister to make a decision on their visa applications. The court held that the visa applications had not been received or considered at the time the judicial review application was lodged, and that there had not been any unreasonable failure to consider the applications since then. The court further held that compelling a decision at that time would likely result in a negative outcome for the applicants, which would provide little comfort to them. The court also found that the application was premature given the rapidly changing circumstances in Afghanistan, and that it would be inappropriate to make a decision on the visa applications at that time.

The court dismissed the application and made no order as to costs. The court found that the applicants had made the application in support of an understandable desire to help their family members in Afghanistan, but that the application had been unsuccessful. The court held that it would be inappropriate to further burden the applicants with a costs order, given the extraordinary circumstances of the case.

In summary, the court found that the applicants did not have a right to compel the Minister to make a decision on their visa applications, and that the application was premature given the rapidly changing circumstances in Afghanistan. The court dismissed the application and made no order as to costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application lodged on 6 August 2021 and filed on 12 August 2021 is dismissed.

2. There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

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

It seems to me that the same situation still applies. Processing, albeit not as quick as the applicants want, is being undertaken. If the Court were to compel a decision now on the visa applications, the outcome would probably be a negative one. That might provide something else for the Court to review but that would be of little comfort to these applicants. I have come to the view first that, at the time their judicial review application was lodged, there was no basis for any order of mandamus, given that the visa applications had not then been received or considered. Secondly, in the time that has passed since then, there has not been any unreasonable failure to consider the visa applications and processing work has been undertaken in difficult circumstances. CONCLUSION It follows, in my view, that the application should be dismissed. I will order that the application lodged on 6 August 2021 and filed on 12 August 2021 be dismissed. That, however, is not the end of the matter. As I have already noted, the fifth applicant, the applicant father, was the subject of earlier proceedings in this Court and I have made orders for a mediation to occur in relation to his circumstances. His circumstances are obviously affected by those of his family in Afghanistan. There is, in my view, no reason why the applicant father could not pursue enquiries about the visa applications by his family in the course of that mediation. In consequence of the dismissal of the application, the Minister seeks an order for costs against the applicant mother and applicant father, consistent with the normal principle that costs follow the event. The present case, however, is in my view, extraordinary and there is no entitlement to a costs order. The applicant mother is, we assume, somewhere in Afghanistan at a location unknown and her circumstances are unknown. The applicant father is in Australia and, no doubt, joined in the application because of his concern for his family but did not have any direct legal interest in it. The application was made and pursued, in my view, in support of an understandable desire to attempt to shepherd the visa applicants in Afghanistan through a very challenging situation to safety in Australia. That has been unsuccessful, but I see no reason to further burden these applicants with a costs order. I will order that there be no order as to costs.

Ratio Decidendi

Legal Principle Established

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