MZAPS v Minister for Immigration

[2016] FCCA 2581

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2581

Catchwords:
MIGRATION – Applicants filing Notice of Discontinuance – ruling on costs.

First Applicant: MZAPS

Second Applicant: MZAPT

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ROSLYN SMIDT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 2650 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Melbourne

Delivered on: 27 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Hughan

Solicitors for the Applicant: Lander & Rogers

Counsel for the Respondent: Mr Cunynghame

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the applicants are granted leave to file a Notice of Discontinuance.

2. That the proceeding be discontinued.

3. That there be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2650 of 2014

MZAPS

First Applicant

MZAPT

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ROSLYN SMIDT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicants have sought leave to discontinue their application currently before the Court and that is not opposed.  What is in dispute between the parties is whether a costs order should follow that event.  It seems to be relatively clear that the applicants filed their application in December 2014 seeking to effectively overturn an earlier – some eight months earlier I am told – decision of the Independent Merits Reviewer in relation to their application for protection visas.  Following a data release difficulty which itself had occurred quite some time ago but which took a while as it were to percolate through the system, the Department wrote to the applicants on 25 August 2016 inviting them to apply for a temporary protection visa or a safe heaven enterprise visa.

2. That invitation does not, of course, mean that the applicants will be ultimately granted any such visa.  That would be a matter to be determined by the appropriate processes.  There is some question as to how long it took the applicants to understand that correspondence and in my view, given the affidavits filed, there is no room for criticism if such delays took place as a result of the applicants’ lack of understanding.  The fact is, however, the matter has lurched to this day and we now have the application for costs to deal with.  

3. In the written submissions filed on behalf of the applicants there is reference at page 6 to the case of Lai Chin in which McHugh J relevantly said:

   “[i]f 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.” 

4. His Honour’s remarks were made in the context of a case involving no hearing on the merits.  I have had a very quick look at the first respondent’s written submissions in the proceeding and it must be said that the prospects of success in this substantive proceeding would be questionable.  But the fact is that those merits have not been tested by a final hearing and in circumstances where the applicants have before them a ready avenue for further consideration of their claims, in my view, their decision to elect to pursue their claims in that way cannot be said to be unreasonable.

5. In those circumstances and there having been no adjudication of the matter on its merits and emphasising that each case turns on its own facts – there are no universal rules – in my view in all the circumstances it is inappropriate that there be an order for costs in these proceedings, although I should emphasise that the conduct of the first respondent in formulating its claim as to costs was eminently in accordance with their obligations as a model litigant and does the first respondent credit. I order that there be no order as to costs.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 6 October 2016