NAVJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1341

FEDERAL COURT OF AUSTRALIA

NAVJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1341

NAVJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1124 OF 2003

SACKVILLE J
SYDNEY
13 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1124 OF 2003

BETWEEN:	NAVJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE
DATE OF ORDER:	13 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay the applicant’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1124 OF 2003

BETWEEN:	NAVJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE
DATE:	13 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for a costs order arising out of the resolution of proceedings commenced in this Court on 22 August 2003.  The proceedings were commenced on behalf of the applicant, who at that time was held in detention.  The relief sought included orders that the Minister or his representatives make arrangements for the applicant to be examined by a medical specialist.  The purpose of the examination was to obtain an opinion as to whether the applicant had a special need based on health or previous experience or trauma such that he could not be properly cared for in a detention environment.  Provision is made by the Migration Regulations1994 (Cth), reg 2.20(9)(c) for the Minister to take such steps.

2. The proceedings have been resolved by the applicant filing a notice of discontinuance. However, that has come about because shortly after the proceedings were commenced, the Minister agreed to have the applicant examined by a medical specialist to provide the opinion contemplated in reg 2.20(9)(c).

3. The application for costs is based essentially on the contention that the Minister has acted unreasonably in not agreeing to take these steps prior to the institution of the proceedings.  Reliance is placed upon the observations of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622, at 625.

4. It is important to note that in this case, a request was made on behalf of the applicant on 27 May 2003, that a medical specialist be appointed to conduct an examination of the applicant.  So far as the evidence shows, that request elicited no response in writing and no reasons were given for declining to comply with the request.  Instead, on 25 June 2003, the Department simply refused the applicant's application for a bridging visa.

5. Further requests were made on behalf of the applicant for the appointment of a medical specialist pursuant to reg 2.20(9)(c). Again, they did not yield any result. It is clear enough from the correspondence that the Minister's representatives had a good deal of information before them indicating the need for a medical examination of the kind that has ultimately taken place.

6. In my view, it was unreasonable for the Minister not to accept these requests without providing a reasoned explanation as to why he was not prepared to do so.  It was not necessarily unreasonable to refuse to make the appointment of a medical specialist if there was some valid reason for declining to take that course.  The difficulty is that the correspondence does not reveal any such explanation.  I simply do not know why the requests were not complied with earlier.

7. In these circumstances I think it appropriate that the Minister pay the applicant's costs of the proceedings notwithstanding the fact that they were discontinued. 

8. The applicant also seeks indemnity costs as from 27 August 2003.  While there was correspondence relating to the resolution of the proceedings at that time, I do not think that this provides a basis for awarding indemnity costs.  There may have been some issues other than the medical examination itself that required resolution before the proceedings could be disposed of in their entirety.  I think that the interests of justice will be served by an order for costs on the usual basis.

9. I therefore order that the respondent pay the applicant's costs of the proceedings on the usual basis.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             19 November 2003

Counsel for the Applicant:	Mr SA Beckett
Solicitor for the Applicant:	Public Interest Advocacy Centre
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 November 2003
Date of Judgment:	13 November 2003