Kroeker v Minister for Immigration and Multicultural Affairs

[2000] FCA 292

FEDERAL COURT OF AUSTRALIA

Kroeker v Minister for Immigration & Multicultural Affairs [2000] FCA 292

PRACTICE AND PROCEDURE – immigration – costs – where leave granted to discontinue proceedings – applicant for review of decision of the Minister for Immigration and Multicultural Affairs to cancel an Electronic Travel Authority (Visitor) Visa – whether appropriate to make no order as to costs

Migration Act 1958
Federal Court Rules O 22 r 2(1)(d)

TRACY LEE KROEKER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q21 OF 2000

SPENDER J
6 MARCH 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q21 OF 2000

BETWEEN:	TRACY LEE KROEKER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SPENDER
DATE OF ORDER:	6 MARCH 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Leave to discontinue the proceedings be given to the applicant, pursuant to O 22 r 2(1)(d) of the Federal Court Rules.

2.There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q21 OF 2000

BETWEEN:	TRACY LEE KROEKER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SPENDER
DATE:	6 MARCH 2000
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for an order of review of a decision by the Minister for Immigration and Multicultural Affairs on 3 March 2000 that an Electronic Travel Authority (Visitor) Visa issued by the respondent in favour of the applicant be cancelled pursuant to the provisions of s 116(1)(g) of the Migration Act1958 (Cth).

2. The applicant, who is a citizen of Canada, arrived in Australia on 3 March 2000.  Although ostensibly the purpose of her trip was to have a holiday, the Immigration Inspector (as the Minister’s authorised delegate) identified various matters, including items in her luggage, which in his opinion indicated that she did not intend to visit Australia only temporarily for the purpose of tourism.

3. Upon her application, I will grant the applicant leave to discontinue these proceedings and make no order as to costs.

4. I think it appropriate to make no order as to costs for the following reasons: first, the application to the Federal Court was made in circumstances closely associated with the question of the detention of the applicant; second, leave has been sought to discontinue these proceedings very shortly after the application was made, and before there have been really significant costs incurred by the Minister, so that the quantum of costs involved, in the scale of things, is not very great; third, it is likely that an order for costs made here would have to be satisfied as a condition precedent to the grant of any entitlement by this applicant to return to Australia.  In my opinion the appropriateness of granting a future visa should not turn on the payment of a relatively small sum as such a condition.

5. Another important factor is that these proceedings have been discontinued without any inquiry into the validity of any claims that the application sought to agitate.  Ordinarily a party against whom proceedings have been discontinued has an entitlement to a costs order for costs thrown away in having to meet the application which is no longer being pursued, but, in the particular circumstances of this case, it seems to me that I should make the following orders:

   1.that leave to discontinue the proceedings be given to the applicant, pursuant to O 22 r 2(1)(d) of the Federal Court Rules; and

   2.that there be no order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             6 March 2000

Counsel for the Applicant:	Mrs A Julian-Armitage
Solicitors for the Applicant:	Gilshenan & Luton Lawyers
Solicitor for the Respondent:	Mr M Belcher, of the Australian Government Solicitor
Date of Hearing:	6 March 2000
Date of Judgment:	6 March 2000