FEDERAL COURT OF AUSTRALIA

Ahmetaj v Minister for Immigration & Multicultural Affairs [1999] FCA 332

SADRI AHMETAJ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFAIRS

N 34 OF 1999

JUDGE:          SACKVILLE J

PLACE:          SYDNEY

DATE:            30 MARCH 1999

THE COURT ORDERS THAT:

1.         Leave be granted to the applicant, pursuant to Federal Court Rules, O 22, r 2(1)(d), to discontinue the proceedings.

2.         The applicant file a notice of discontinuance within seven days.

3.         The applicant pay the Minister’s costs of the proceedings, including the costs of 26 March 1999.

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

REASONS FOR JUDGMENT

1                     On 15 January 1999, the applicant sought review of a decision of the Immigration Review Tribunal (“IRT”), made on 22 December 1998, affirming a decision to refuse him a Bridging Visa E (Subclass 050).  The IRT affirmed the decision because it could not be satisfied that the applicant complied with the criterion laid down in Schedule 2 to the Migration Regulations, Item 050.212(3)(b), that

“the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia”.

The IRT took the view that the applicant was unable to apply for the relevant visa, a Territorial Asylum Visa, because he could not comply with a necessary precondition, namely that he had been granted territorial asylum in Australia by instrument of a Minister (Item 800.21).  The relevant Minister is the Minister for Foreign Affairs and Trade.

2                     The applicant sought review of the IRT’s decision on the ground that the IRT had erred in holding that Item 050.212(3)(b) could not be satisfied where the applicant had not yet received the necessary instrument from the Minister for Foreign Affairs and Trade.

3                     On or about 13 February 1999, the applicant’s solicitor was notified that the Minister for Foreign Affairs and Trade did not propose to make a decision on the applicant’s claim for territorial asylum.  The Minister suggested that the applicant’s interests might more appropriately be satisfied by an application for a Protection Visa.

4                     The applicant now seeks leave to discontinue the proceedings, pursuant to Federal Court Rules (“FCR”), O 22, r 2(1)(d).  The Minister does not oppose the grant of leave, but seeks costs.

5                     The applicant resists an award of costs.  He points out that a discontinuance pursuant to leave granted under FCR, O 22, r 2(1)(d) does not attract an automatic award of costs against the discontinuing party: cf FCR, O 22, r 3.  Costs are therefore in the discretion of the Court: Federal Court of Australia Act 1976 (Cth), s 43(2).  The applicant says that the proceedings have been rendered futile by the decision of the Minister for Foreign Affairs and Trade, and that, in these circumstances, the appropriate course is that no order be made in relation to costs.

6                     The fact is, however, that the applicant has chosen to discontinue the proceedings without obtaining the relief he sought.  The event which rendered the proceedings “futile” was the difficulty that the applicant always faced in relation to any application for a Territorial Asylum Visa, namely that the Minister for Foreign Affairs and Trade might refuse to grant the relevant instrument.  The applicant commenced the proceedings knowing that, if the Minister took the course he ultimately did, they would serve no practical purpose.  Indeed, it was the absence of an instrument from the Minister for Foreign Affairs and Trade that was held by the IRT to be the fundamental difficulty in the path of the applicant securing a Bridging Visa.

7                     In substance, the applicant has not succeeded in his claim for relief, by reason of a difficulty that he has always faced.  This is not a case where the proceedings have been rendered futile because the Minister has granted the relief in substance sought by the applicant: cf Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622.  Nor is it a case where the Minister has conceded that the applicant’s arguments were bound to succeed.  On the contrary, the Minister has always intended to support the IRT’s decision and no ruling has been sought or made on whether the Minister’s position is correct.

8                     In my view, the appropriate orders are these:

1.         Grant leave to the applicant, pursuant to FCR, O 22, r 2(1)(d), to discontinue the proceedings.

2.         Direct that the applicant file a notice of discontinuance within seven days.

3.         The applicant pay the Minister’s costs of the proceedings, including the costs of 26 March 1999.

Associate:

Dated:              30 March 1999