Rinaldy v Minister for Immigration and Multicultural Affairs

[2002] FCA 117

FEDERAL COURT OF AUSTRALIA

Rinaldy v Minister for Immigration & Multicultural Affairs

[2002] FCA 117

COSTS – whether costs should be awarded when application for judicial review made only shortly after the extensive amendments to the Migration Act 1958 (Cth) effected on 2 October 2001

RUDY RINALDY V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.193 of 2001

MANSFIELD J
6 FEBRUARY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.193 OF 2001

BETWEEN:	RUDY RINALDY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 FEBRUARY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.193 OF 2001

BETWEEN:	RUDY RINALDY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. At the commencement of the hearing counsel for the applicant indicated that the applicant no longer wishes to proceed with it. I am told, and I accept, as does counsel for the respondent, that the reason for that change of heart is because the applicant has only very recently been given legal advice and that, in the light of that legal advice, the applicant now adopts the course indicated on his behalf in the light of s 474 of the Migration Act 1958 (Cth) (the Act). In those circumstances I propose simply to dismiss the application.

2. The respondent seeks costs of the application.  The applicant opposes that order.  The reasons why the applicant contends that the Court should depart from the usual ruling as to costs are fourfold.  Firstly, it is said that the applicant has acted appropriately in the light of legal advice very recently given to him.  Without commenting on the merits of his application, but accepting what has been told to the Court as recorded above, I accept that he has done so.

3. Secondly, the application was instituted on 26 October 2001 following a decision of the Migration Review Tribunal on 10 October 2001. Those events occurred only a short time after the very extensive amendments to Part 8 of the Migration Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into force on 2 October 2001. This application was instituted only a short time after those significant amendments to the Act were introduced and, at least inferentially, at a time when their import was not fully appreciated by the applicant or indeed by others. I think there is some merit in that contention. The period after the introduction of those significant amendments did involve a period during which persons such as the applicant and their advisers properly should have addressed the effect of those amendments, but it is reasonable to accept that it would have been a matter of a little time before the copies of that legislation were readily available to be considered, and then some time for the implications of those legislative changes to be addressed. This matter is one of those which was instigated only shortly after those amendments.

4. Thirdly, it is put that the applicant acted reasonably in instituting the application.  Again I accept that contention, but subject to it being seen in the context of what I have just said about the decision to institute the application being at a time soon after the introduction of those significant amendments.  To an appreciable extent, although not entirely, the applicant's failure to comply with conditions applicable to his visa, which he held in the year 2000, was attributable to his decision to return to Indonesia following the death of his father from a heart attack on 25 March 2000.  It is understandable in that circumstance that he should feel, whether rightly or wrongly as a matter of law, that he had some excuse for his failure to comply with those conditions.

5. Finally, it is put that the Court should not remove from litigants an incentive to discontinue hopeless litigation by imposing costs when such litigation is discontinued.  I do not accept that proposition in all respects.  Costs are a useful incentive to discourage hopeless litigation in the first place.  But in the context of this matter, for the reasons I have already given, I attribute some weight to it.  It is not by way of reward, but it acknowledges that having instituted the application not unreasonably, the applicant did decide to discontinue it promptly, following the receipt of legal advice.

6. In the particular circumstances of this matter, in my view it is appropriate that there should be no order for costs following the dismissal of the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             21 February 2002

Counsel for the Applicant:	Mr H Heuzenroeder
Solicitor for the Applicant:	Legal Services Commission
Counsel for the Respondent:	Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 February 2002
Date of Judgment:	6 February 2002