Nguyen v Minister for Immigration and Multicultural Affairs

[2001] FCA 965

FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 965

THI HAI VAN NGUYEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 886 OF 2001

HELY J
16 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 886 OF 2001

BETWEEN:	THI HAI VAN NGUYEN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	16 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with 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	N 886 OF 2001

BETWEEN:	THI HAI VAN NGUYEN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	16 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order of review of decision of the Migration Review Tribunal (“MRT”) in which it affirmed the decision of the Minister's delegate not to grant to the applicant a Partner (Temporary) Class UK visa.  MRT's decision wrongly described the visa for which application was made as a Class TK, subclass 820 visa whereas it is clear that the application was with respect to a Class UK subclass 820 visa.  This is an obvious error but it is not one which is material to the decision.

2. The Application for an Order of Review which was lodged with the Court on 30 May 2001 does not disclose the grounds on which the application was made, nor did the applicant comply with an order made by a registrar on 14 June 2001 that the applicant should lodge written submissions prior to the hearing date.  When the matter came on for hearing this morning the applicant, who appeared for herself with the assistance of an interpreter, informed me that her intention was to withdraw her application, and she said that she wished to apologise to the Court and the Minister for having wasted their time. 

3. The applicant was in detention but I was informed by counsel for the Minister that she was released from the Detention Centre on 28 June 2001.  The applicant told me that she had obtained legal advice in connection with her application and that there were many aspects which she could not justify and for that reason she was withdrawing her application.  Counsel for the Minister submitted that it was appropriate in those circumstances that the application should be dismissed, but added that the Minister sought an order for costs as it was only when the Minister's legal representatives arrived at Court this morning that they were informed that it was the applicant's intention not to proceed with her application.

4. Before coming to Court I gave some consideration to the question of whether the MRT’s decision disclosed reviewable error, as I expected that the applicant would be without legal representation.  It seemed to me as a result of that consideration, that subject to any arguments that the applicant might bring forward, that MRT’s decision was a factual one which did not disclose any reviewable error.  I can thus understand why the applicant has decided that she does not wish to pursue her application, and from what she tells me that decision was reached after taking legal advice.  In those circumstances I think that I should make an order that the application be dismissed. 

5. The applicant opposes the making of an order for costs upon the basis that she had to pay a lot of money in relation to her stay in the Detention Centre.  She also incurred legal costs and financially she is not in a position to pay the Minister's costs.  Whilst I can understand the financial difficulties to which the applicant refers, the fact of the matter is that the Minister has been put to considerable expense in opposing an application that was without merit and which was abandoned at the very last minute.  In those circumstances the application should be dismissed with costs.  I therefore order that the application be dismissed and that the applicant pay the Minister's costs. 

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

Associate:

Dated:             24 July 2001

The applicant appeared in person
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 July 2001
Date of Judgment:	16 July 2001