Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6

High Court of Australia McHugh J Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6

ORDER Summons dismissed with costs

The following written judgment was delivered:—

28 February 1997 McHugh J.

The applicant, Lai Qin, (the prosecutrix) seeks an order that the first respondent, the Minister for Immigration and Ethnic Affairs, pay the costs of proceedings instituted by the prosecutrix before the Minister granted her a protection visa. The order is sought under O 71, r 39, of the Rules of Court, which provides:

When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just.

The prosecutrix contends that it is just to make an order in these proceedings because the Minister should have informed her legal advisers prior to the commencement of the proceedings that he intended to review her application for a protection visa. To understand this submission, it is necessary to sketch the background of the proceedings.

The prosecutrix arrived in Australia on 22 November 1994 by boat. On arrival she was detained and taken to Port Hedland where she remained until about 24 January 1996. On 22 January 1996 the Minister exercised his discretion under s 417 of the Migration Act 1958 Cth (the Act) and granted her a protection visa although he had refused an earlier application for a visa. That application was made on 24 January 1995 when the prosecutrix applied for a protection visa on the ground that she was a refugee within the meaning of Art 1 of the Convention Relating to the Status of Refugees that was done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. On 10 February 1995 the Minister refused the application. On 23 February 1995, the prosecutrix applied to the Refugee Review Tribunal to review the Minister's decision. The Tribunal did not give a decision until 6 October 1995 when it affirmed the decision of the Minister not to grant a visa to the prosecutrix.