Pull v Minister for Immigration and Citizenship - [2009] FCA 747

FEDERAL COURT OF AUSTRALIA
Pull v Minister for Immigration & Citizenship [2009] FCA 747
COSTS – where non-discontinuing party changes position rendering a significant component of the proceedings redundant and the other significant component practically futile – whether the discontinuing party should have his costs of the application.
HELD: applicant awarded costs in NSD 17/2009 but each party must pay their own costs in SAD 52/2009.
Federal Court of Australia Act 1976 (Cth) ss 20(1A), 43(2)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 13, 29, 195A, 477, 501(2)
Migration Legislation Amendment Act (No. 1) 2008 (Cth) Sch 4, Item 7
Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 9
Federal Court Rules 1976 (Cth) O 22 r 2(1)(d), O 80 r 4(1)
Griffith University v Tang (2005) 221 CLR 99 referred to
Inground Constructions Pty Ltd v Federal Commissioner of Taxation (1994) 27 ATR 513 referred to
Malloch v Aberdeen Corporation [1971] 1 WLR 1578 referred to
Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 considered
O’Neill v Mann [2000] FCA 1680 referred to
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 referred to
Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 referred to
Smith v Airservices Australia (2005) 222 ALR 464 referred to
Sullivan v Secretary, Department of Defence [2005] FCA 786 referred to
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 referred to
ALLAN PULL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and SECRETARY FOR IMMIGRATION AND CITIZENSHIP
NSD 17 of 2009
ALLAN PULL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
SAD 52 of 2009
EDMONDS J
15 JULY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 17 of 2009

BETWEEN:
ALLAN PULL
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

SECRETARY FOR IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

15 JULY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The first respondent pay the applicant’s costs up to and including the hearing of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SAD 52 of 2009

BETWEEN:
ALLAN PULL
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

15 JULY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 17 of 2009

BETWEEN:
ALLAN PULL
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 747
Decision Date: 15 July 2009

CaseChat Overview and Summary

In the case of Pull v Minister for Immigration and Citizenship, the applicant, who had arrived in Australia under a working holiday visa and later obtained a permanent entry permit, faced the cancellation of his Temporary Protection (TP) visa. The decision to cancel the visa was initially held to be unauthorised and was subsequently validated by legislative amendments. The applicant sought habeas corpus relief and other orders to challenge his detention and removal from Australia.

The court was required to determine whether the applicant was entitled to relief in the form of habeas corpus and declarations regarding his lawful status in Australia. Additionally, the court needed to consider the costs associated with the proceedings, particularly the applicant's eligibility for legal assistance under the Federal Court Rules and the appropriate allocation of costs between the parties.

The court found that the applicant was entitled to legal assistance under O 80 of the Federal Court Rules. The court ordered the first respondent to pay the applicant's costs up to and including the hearing of the application. The court noted that there would be no order as to costs beyond this point. The reasoning was based on the interests of justice and the applicant's need for legal representation in complex immigration matters.

No further orders regarding costs were made.

Orders

Orders of the court

1. The first respondent pay the applicant’s costs up to and including the hearing of this application.

Note:

1. There be no order as to costs.

Note:

Background

Background to the litigation

On 12 May 2009, Acting Chief Justice Spender made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) directing that the original jurisdiction of the Court in relation to proceeding NSD 17/2009 be exercised by a Full Court. That direction was revoked on 3 July 2009 to facilitate, if it be necessary, my dealing with the remaining issue as to costs in both proceedings.BACKGROUND The applicant arrived in Australia on 30 September 1980 as the holder of a T18-UK working holiday visa. On 4 January 1983 he was granted a permanent entry permit. The applicant’s permanent entry permit, by operation of reg 9 of the Migration Reform (Transitional Provisions) Regulations 1994, was taken to have become a TP visa on 1 September 1994. On 2 June 2005, pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’), a delegate of the Minister decided to cancel the applicant’s TP visa. On or around 15 June 2005, the applicant was arrested and taken into detention. On 6 September 2005, on review, the Tribunal affirmed the decision to cancel the visa. On 23 January 2007, Besanko J dismissed the applicant’s appeal from the Tribunal’s decision. Following the decision of a Full Court of this Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56, the decision to cancel the applicant’s TP visa was ineffective for reason that at the time of cancellation it was not authorised by s 501(2) of the Act. As a result, the applicant was released from detention on, or shortly after, 21 July 2008. Schedule 4 of the Migration Legislation Amendment Act (No. 1) 2008 (Cth), which took effect on 19 September 2008, amended the Act to authorise a cancellation of a TP visa under s 501 of the Act and to validate previous decisions to cancel TP visas that were held to be unauthorised in the Full Court’s decision in Sales. By letter dated 29 October 2008, the applicant was informed that as a consequence of the legislative amendments made under the Migration Legislation Amendment Act (No. 1), the decision to cancel his TP visa was validated, and he was liable to be detained under s 189 of the Act and removed from Australia. The applicant was arrested on or around 18 November 2008 and taken into detention. On 8 January 2009, the applicant commenced a proceeding under s 39B of the Judiciary Act (NSD 17/2009) seeking relief in the nature of habeas corpus ordering his release from detention and various other orders, including a declaration that he is a lawful non-citizen, and injunctions, including an injunction preventing the respondent from giving effect to the purported cancellation of his visa and removing him from Australia. On 4 February 2009, proceeding NSD 17/2009 came before me for the first time. The applicant appeared in person. I made a determination, pursuant to O 80 r 4(1) of the Federal Court Rules (‘the Rules’), that it was in the interests of the administration of justice that the applicant be referred for legal assistance under O 80 in respect of:Representation on direction, interlocutory or final hearing or mediation; assistance with drafting or settling of documents to be filed or used in the proceeding; and assistance generally in the conduct of the proceeding.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 17 of 2009

JUDGE:	EDMONDS J
DATE OF ORDER:	15 JULY 2009
WHERE MADE:	SYDNEY