Federal Court. Should it be inferred that the reason why the Minister determined the visa application shortly after the judicial review application was filed is that he capitulated and recognised that the Applicant would succeed in his claim to a writ of mandamus, with the result that the Respondents should pay the Applicant's costs incurred until the time of the visa grant?
A delegate of the Minister refused to grant the Applicant a protection visa, after which the Tribunal made orders remitting the matter to the Department for consideration of the remaining visa criteria.
The Department failed to make a new decision for several months, after which the Applicant commenced judicial review proceeding for unreasonable delay.
Shortly after the judicial review application was filed, the Minister granted the Applicant a protection visa, which rendered the judicial review proceedings moot/nugatory.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "the reason that there is no determination of the outcome is because that which is sought by the commencement of the proceedings has occurred at the instigation, or by the acts, of the respondent party and in that sense the applicant has succeeded"?
Question 2: Should it be inferred that the reason why the Minister determined the visa application shortly after the judicial review application was filed is that he capitulated and recognised that the Applicant would succeed in his claim to a writ of mandamus, with the result that the Respondents should pay the Applicant's costs incurred until the time of the visa grant?
Question 3: If the answer to Question 2 is 'yes', should the Respondents pay costs in an indemnity basis?
The FCA answered those questions as follows: