FEDERAL COURT OF AUSTRALIA

Leghaei v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1118

MANSOUR LEGHAEI & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

A21 of 2002

MADGWICK J

27 JULY 2004

CANBERRA

THE COURT ORDERS THAT:

1.         The second respondent is to pay one third of the costs of the applicants. 

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

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an unusual case.  The applicant sought relief against administrative decisions both of the Minister responsible for immigration affairs and the Director General of Security.  The effect of the migration legislation, as I understand it, is that if the holder of a visa has been assessed by the competent Australian authorities (represented in these proceedings by the Director General of Security) to be directly or indirectly a risk to Australian national security, the Minister must cancel the visa.

2                     There had been a security assessment of the first applicant undertaken by ASIO which was adverse to him and the consequent cancellation of the applicants’ visas by the Minister.  Among other things, the applicants had claimed in effect that the 2002 security assessment was void because procedural fairness in connection with it was not accorded to the applicants.

3                     They had at least some arguable ground for complaint if there was a legal requirement that they be afforded procedural fairness, in that the Inspector General of Security reported (in response to complaints made by the applicants to him) that ASIO officers had not put to the first applicant the translation of a document upon which they relied, which document was the property of the first applicant.

4                     The respondents cooperated, as I would think very fairly and properly, in agreeing to a number of consent interlocutory orders which preserved the applicant’s presence in Australia pending the outcome of the litigation. 

5                     For reasons which are not clear, but I infer at least in part were prompted by the institution of the proceedings, ASIO determined to undertake a fresh security assessment and, as it appears, put to the first applicant a number of his documents which they had earlier had.  Apparently, the first applicant was able to shed some light on the significance to be attached to these.

6                     Nevertheless, the fresh assessment was also adverse, and a fresh decision to cancel the applicant’s visas was made, which decision is to be challenged in other proceedings now instituted.  As a consequence of institution of those other proceedings and the second assessment, the present proceedings have been terminated.

7                     The applicants say that, in substance, they have achieved what they wanted to achieve in the proceedings, namely that the respondent cease to rely on the 2002 assessments and, further, it is steps taken by the Director General of Security that have:

‘deprived them of the opportunity of obtaining a judicial determination vindicating their complaints against the manner in which the 2002 ASIO assessments were made.’

8                     The respondents rely on the judgment of McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia & Anor; Ex Parte Lai Qin (1997) 186 CLR 622 in which his Honour said:

‘If it appears that both parties have acted reasonably in commencing and defending [proceedings in which there has been no hearing on the merits and the moving party no longer wishes to proceed with the action] and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the Court will make no order as to the cost of the proceedings.  This approach has been adopted in a large number of cases.’

9                     In the first place, as it seems to me, there can be no costs order against the first respondent.  The Minister, as it would appear to me, has acted reasonably and was at no time obliged to form a view as to whether the security assessment was vitiated by any denial of procedural fairness on the part of the security authorities.  That focuses attention on the conduct of the applicants and of the second respondent, the Director General of Security.

10                  The applicants, it may be said, so far as anything put before me enables a conclusion, have acted entirely reasonably in bringing, maintaining and terminating these proceedings.  There is nothing to indicate that the Director General of Security acted unreasonably.  On the other hand, there is material which suggests a degree of possible room for improvement in the processes that led to the making of the first decision, but this was not fault of a major kind.

11                  I am unable to conclude that, had the matter proceeded to hearing, the applicants probably would have succeeded.  There are many issues.  But it does seem that it is likely that the administrative processes followed in relation to the second security assessment probably proceeded without at least some of the possible grounds for criticism which might otherwise have been available in consequence of the institution of the proceedings.

12                  McHugh J was, I think, at pains to indicate that all one can do in this area is to enunciate general principles.  The matter ultimately is a question for the discretion of the Court.  It is not possible in advance to lay down general rules to govern the exercise of discretion in all cases.  So much, I think, is inherent in his Honour’s use of the word ‘usually’ in the passage which I have extracted from his Honour’s judgment.

13                  In the circumstances, it seems to me that the ends of justice would be served and it would be a proper exercise of discretion if I ordered the second respondent to pay one third of the costs of the applicants, which I will do. 

Associate:

Dated:              27 August 2004