MZWYX v Minister for Immigration
[2007] FMCA 269
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWYX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 269 |
| MIGRATION – Refugee Review Tribunal – Protection visa. PRACTICE AND PROCEDURE – Discontinuance – exercise of Ministerial discretion pursuant to s.48B of Migration Act – whether costs should be paid on discontinuance – proceedings rendered futile by exercise of Ministerial discretion – each party to bear their own costs. |
| Federal Magistrates Court Rules 2001, r.13.01 Migration Act 1958, ss.48B, 417 |
| Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 NGBM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 Heitz & Ors v Minister for Immigration [2005] FMCA 1820 |
| Applicant: | MZWYX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 371 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 February 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Ms D. Krause |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Solicitor for the First Respondent: | Ms S. Koya |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Applicant be granted leave to amend the name of the First Respondent by deleting the words “Multicultural and Indigenous Affairs” and inserting in lieu thereof “Citizenship”.
Pursuant to rule 13.01(2)(b) of the Federal Magistrates Court Rules 2001, the Applicant be granted leave to discontinue the application filed on 13 April 2005.
Each party should bear their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 371 of 2005
| MZWYX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicant, by an application filed 13 April 2005, had sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 22 February 2005 which had affirmed the decision of a delegate of the First Respondent to refuse to grant a protection visa. It is not necessary to recite in detail the background of the matter, save to note the Applicant is a citizen of Afghanistan who, after arrival in Australia, had lodged an application for a protection visa and was granted a temporary protection visa on 13 August 2001. An application for a further protection visa was made on 9 January 2002. This was refused by a delegate of the First Respondent and affirmed by the Tribunal.
These proceedings have had a somewhat chequered history in this court, and the prime reason for the delay in the matter being heard was that the court had deliberately made orders which were designed to ensure that upon the hearing date the court would have the benefit of the decision of the High Court in two cases namely, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (QAAH) and NGBM v Minister for Immigration and Multicultural Affairs [2006] HCA 54.
It is not necessary to recite in detail the relevance of the High Court decisions as it appears to be common ground in the interests of both parties that those High Court decisions be delivered in order for the court to obtain some guidance as to the appropriate law to be applied, particularly in circumstances where this court had applied the majority of the Federal Court decision in QAAH..
The issue before the court this day is the question of whether or not, upon being granted leave to discontinue the application, the Applicant should pay the First Respondent's costs. A notice of discontinuance was filed on 21 February 2007. According to r.13.01 of the Federal Magistrates Court Rules 2001 (the Rules), a notice of discontinuance may be filed at least 14 days before the day fixed for the final hearing of the application or with the leave of the court or a Registrar at a later time. It is clear that, this matter having been listed for final hearing this day, the Applicant requires the leave of the court to discontinue rather than simply relying upon the notice of discontinuance filed yesterday.
Leave was accordingly sought for and on behalf of the Applicant and not opposed by the First Respondent. I granted leave in circumstances where it was brought to the court's attention that on or about 30 January 2007 the First Respondent had made a determination pursuant to s.48B of the Migration Act 1958 (the Migration Act) which states as follows:
“Minister may determine that section 48A does not apply to non-citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
(3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b)sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.
(5)A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b)if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.”
It is clear that that section provides for the Minister to exercise a discretion in order to prevent a non-citizen from making an application for a protection visa. The effect of the determination made by the Minister, which I note is a determination exercised by the Minister personally, appears to be that the Applicant in this instance has been permitted to make a fresh application for a visa.
Had it not been for the exercise of the Minister's discretion pursuant to s.48B of the Migration Act, then it again seems to be clear that the opportunity to make a fresh application would not have been available to this Applicant, who then would be left with the prospect of pursuing this application for judicial review of the decision of the Tribunal to which I have referred. It seems to be also common ground that the exercise of the discretion by the Minister under s.48B has effectively rendered futile the pursuit of these proceedings.
Neither party could indicate to the court that any purpose would be served by the court now completing its judicial review task in relation to the Tribunal decision currently sought to be reviewed. So much is evident from the fact that the Applicant now has an opportunity, as a direct consequence of the exercise of the Minister's personal discretion under s.48B of the Migration Act, to make a fresh application for a visa.
I have been informed that there are a number of factors which may be relied upon by the Minister in the exercise of the discretion, but in simple terms it is sufficient to note that events may change, particularly in relevant countries, and other matters may arise which persuade the Minister to exercise the personal discretion. It is clear, and I accept, that the discretion exercised by the Minister pursuant to s.48B is not analogous to the broader discretion which is available to the Minister under s.417 of the Migration Act. Nevertheless, I am satisfied, and find, that it was the exercise of the Minister's discretion pursuant to s.48B which persuaded the Applicant reasonably to seek leave to discontinue this application and which I find effectively rendered futile the pursuit of this application.
The First Respondent has submitted that notwithstanding that history, costs should follow the event upon leave being granted to the Applicant to discontinue the proceedings. Although an amount of $5,000.00 was sought for costs and disbursements, it was noted that this application does not appear to have commenced by way of a show-cause application and it seems to be common ground therefore that Part 44 of the Rules does not apply. That means that the court has an inherent discretion, exercised judicially, to consider whether it will or will not make an order for costs and that the amount of those costs would otherwise be within the discretion of the court and reliance placed upon sch.1 of the Rules.
As indicated, the court undoubtedly has a discretion when dealing with the question of costs. Normally, costs follow the event. The event in this case is discontinuance. Leave having been granted to the Applicant to discontinue the proceedings, then in the normal course of events a court may well order that costs follow that event namely, that the Applicant who discontinues should pay the costs of the other parties, in this case the First Respondent.
In my view, having regard to the history of the matter and the finding that I have made that the proceedings have been rendered futile as a direct consequence of the exercise of the Minister's personal discretion under s.48B of the Migration Act, it would be unfair and inappropriate to then impose upon the Applicant, who sensibly and appropriately has discontinued, the burden of costs.
It was of some concern to note that the notice of discontinuance was only filed a day before the final hearing. Neither party, however, has appeared this day represented by counsel and neither suggest to the court that counsel's fees have been incurred. For present purposes I am prepared to accept that soon after 30 January 2007, discussions occurred between the legal representative of the Applicant and the respondent's legal representative concerning resolution of this matter.
Sensibly, neither party retained counsel to appear this day and the issue before the court has been confined, as indicated, to the question of costs. Hence the late filing of the notice of discontinuance in practical terms has not resulted in any significant additional costs incurred by the parties, save and except for their costs of appearance this day through respective solicitors acting as legal representatives of the respective parties. In those circumstances, the late filing of the notice of discontinuance in my view, whilst in some cases may be a significant and relevant factor, does not in the circumstances of this case persuade me that there should be any costs order made against the Applicant in favour of the First Respondent.
I should add that the decision of the court not to make an order for costs in favour of the First Respondent should not be taken as an indication that the exercise of the personal discretion of the Minister should not occur in circumstances where there is, as in this case, a pending application for judicial review. Clearly the Minister has a broad discretion to make the determination of the kind contemplated by s.48 of the Migration Act and should be free to do so regardless of whether there are any pending proceedings, and indeed regardless of whether there may ultimately be some costs incurred.
Ultimately, the costs which may be incurred for both parties, potentially at least, could be far greater than the costs incurred up to the present date in these proceedings. Accordingly the exercise of the Minister's discretion pursuant to the relevant provision at any time whilst proceedings are pending should not be regarded as inappropriate or undesirable and indeed quite to the contrary.
The opportunity now given to the Applicant as a result of the Minister's determination is a matter solely for the Minister, and no doubt any fresh application will be dealt with on its merits according to law. In the circumstances, for the reasons given, however, in my view it would not be appropriate in the exercise of the court's discretion and nor would it be just to make an order that the Applicant pay the First Respondent's costs.
During the course of submissions the court was referred to a decision of the Federal Magistrates Court in the matter of Heitz & Ors v Minister for Immigration [2005] FMCA 1820. The reasons for that decision do not reveal clearly the nature of the application, save that I note the catchwords demonstrate that it was apparently a review of a decision of a delegate of the Minister. It seems to me that the decision in that case is restricted to the circumstances of that case and it does not provide any assistance to this court in reaching the decision it has reached on the question of costs payable where there has been leave granted to discontinue as indicated.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 February 2007
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