FEDERAL COURT OF AUSTRALIA

Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 515

CHIN LYE OOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1360 of 1999

MADGWICK J

30 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The parties are to pay their own costs of the proceedings.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR

1                     This is a somewhat unusual matter.  On 10 February 2000 the applicant approached the Court for an order for review of the decision of the respondent to cancel his permanent resident's visa purportedly made pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  The grounds of the application included that the respondent had failed to notify the applicant, as required by s 501G of the Act, of his decision (see Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514).

2                     This ground raised two issues:  first, whether the applicant had in fact been given a letter which it was said, by the agents of the respondent, that he had, and second, whether in any case the letter gave reasons for the decision, as s 501G required.  The contention of the respondent was that, in all the circumstances, it could be said that reasons had been given because, in substance, it was perfectly plain that the applicant's visa was being cancelled on account of his involvement in a serious drug supply escapade for which he was criminally convicted and for which he served a substantial sentence. 

3                     In the amended application the applicant claimed an order setting aside the decision of the respondent to cancel his visa and "such other or further orders that the Court deems fit".  In the course of the hearing of the matter, it seemed to me that the contention that reasons had not in fact been furnished was sound and I consequently directed that the respondent personally furnish those reasons to the applicant within 21 days.  That has now occurred and in consequence the applicant has evidently taken the view that the prospects of his overall success with the application to the Court are not promising and, therefore, by consent the application is to be dismissed.

4                     A question now arises as to costs.  The usual practice, of course, is that the successful party is entitled to an award of costs.  However the discretion of the Court is well recognised as a wide one, but to be exercised judicially.  In my view the fact that s 501G did require reasons, which had not been given, is enough to disentitle the respondent from a positive order for costs.  This view is fortified by the fact that the respondent persisted in this, despite the facts that a courteous letter requesting those reasons had been sent by the applicant's solicitor and that this was followed by a more formal letter forewarning of further action if reasons were not provided. 

5                     The respondent does not concur in that view, but counsel has sensibly recognised that the more fruitful question for the respondent to argue is whether the applicant’s submission that he should have his costs of the proceedings or part of them ought to prevail.  Counsel for the applicant points out that, in effect, had there been a specific form of relief in the application seeking that the respondent be directed to furnish reasons, it would be appropriate to order the respondent to pay some equitable part of the costs of his client. 

6                     The merits of the matter seem to me to be somewhat finely balanced, but the fact is that there was no application for such relief.  The applicant has achieved success on a mere step in his argument for the important relief which would have really availed him but has nevertheless failed in relation to such relief.  Although the matter comes in a somewhat unusual setting, it seems to me that on analysis it is not different in principle from the common position where a party challenging an administrative decision succeeds in an attack on the legality of some procedure in connection with the making of the decision but for other reasons the Court is not minded to impugn the decision itself.  The unusual aspect of this case is that such an error was really only clear, and could only have been clear, as a result of the institution of the proceedings.  It was certainly reasonable for the applicant to commence the proceedings.  It is true that, if the respondent had furnished the reasons in the first place,

proceedings would not have been instituted.  However, for the reasons outlined above, the order will be that each party pays his own costs of the proceedings. 

Associate:

Dated:              30 March 2000