Federal Court. After judicial review proceedings commenced, the Minister's Department took steps that resulted in the applicant succeeding in obtaining the outcome which he sought on judicial review. Is this an example of surrender, with the result that the applicant should obtain costs?
The Department indicated to the Applicant that his partner visa application had been withdrawn.
The Applicant wrote to the Department, indicating that without his knowledge or consent, his former partner had logged into his ImmiAccount and submitted the withdrawal request.
The Applicant applied for judicial review of the Department's decision to treat the partner visa application as withdrawn.
Months later, before the judicial review application was decided, notifying him that it reserved the withdrawal, with the effect that the partner visa application was reinstated.
As such, the proceedings in the Federal Court were resolved before a hearing on the merits of the judicial review application.
The applicant then sought costs in relation to the judicial review application, which the respondent Minister opposed.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is this an example of the Minister surrendering the judicial review application, with the “practical result” that the applicant has succeeded in obtaining the outcome which he sought?
Question 2: Can it be said that, "while the reversal decision was made by the Department, the Minister is responsible for the Department and the administration of the Migration Act 1958 (Cth)", with the result that "the conduct of the Department should not be considered as separate from the Minister’s conduct and treated as a supervening event"?
The FCA answered those questions as follows: