FEDERAL COURT OF AUSTRALIA

DQR16 v Minister for Immigration and Border Protection [2017] FCA 96

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

2.    There is no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The matter came on for hearing before me this morning in relation to the objection to competency which the Minister had filed in respect of the originating application dated 30 November 2016. In brief, the applicant complained that the Minister had failed to decide whether or not to grant him a Protection (Class XA) visa (protection visa) in circumstances where he lodged his visa application on 26 August 2012. The applicant complained that the delay in determining his visa application was unreasonable. Among the orders sought by the applicant in his originating application under section 39B of the Judiciary Act 1903 (Cth) was an order in the nature of mandamus to compel the Minister to make a decision in respect of his visa application.

2    When the matter was called for hearing this morning Dr Tully of counsel appeared for the applicant and Ms Watson, solicitor, appeared for the respondent. The Court was advised that a favourable outcome had been achieved by the applicant and that he had been granted a protection visa. Ms Watson tendered a letter dated 9 February 2017 which she had sent to the applicant’s solicitor. The letter advised that the Australian Government Solicitor had been instructed by the Minister that the applicant had been granted a temporary protection visa. Further, the letter stated that the Australian Government Solicitor’s instructions were that “the protection visa application was able to be progressed due to an outstanding security assessment by an external agency being provided to our client recently”.

3    The parties are agreed that it is appropriate in these circumstances that the originating application be dismissed. The only remaining issue is the question of costs. The applicant contended that he should obtain a costs order in his favour because the favourable outcome achieved yesterday was, he said, only as a result of him having commenced the proceeding. Ms Watson submitted that there should be no order as to costs.

4    The relevant principles applying to costs orders where a proceeding is settled or has otherwise become moot are set out in the often quoted decision of McHugh J sitting as a single judge of the High Court in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622, where his Honour said at 625:

If it appears that both parties have acted reasonably in commencing and defending the proceedings 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 costs discretion will usually mean that the court will make no order as to the costs of the proceeding.

5    This authority, among others, relating to the issue of costs where proceedings are settled is referred to in the decision of Goldberg J in Yates Property Corporation Pty Ltd v Boland (2000) FCA 1106 at [4] – [5].

6    I am not satisfied that the commencement of the proceedings was the reason for the recent favourable outcome. In evidence before the Court is an exchange of emails between the applicant’s solicitor and the Department of Immigration and Border Protection (the Department). After the applicant’s solicitor inquired of the Department by email on 3 October 2016 as to the position regarding the still undetermined application for a protection visa, the Department responded by an email dated 13 October 2016 in which it was stated that the application was still being processed but the officer was unable to provide any further update at that time. An assurance was given by the Departmental officer that the Department was seeking to process applications for protection as soon as possible. However, he said that relevant checks needed to be made, including security checks, and that these matters could take some time. It was also explained that the timing of the completion of such checks may vary from one case to another depending upon individual circumstances. The officer concluded by stating that the applicant could be assured that the Department would seek to finalise his visa application as soon as all the relevant checks had been completed.

7    It is evident from this correspondence, together with the letter dated 9 February 2017 from Ms Watson to the applicant’s solicitor, that the reason for the delay in finalising the visa was the need to await a security assessment by an external agency. In all these circumstances I am not satisfied that the litigation per se was the catalyst for the recent decision. I consider that having regard to the relevant principles and the circumstances of this matter it is appropriate that there be no order as to costs.

Associate:

Dated:    10 February 2017