AID18 v Minister for Immigration & Anor (No.2)

[2020] FCCA 3383

FEDERAL CIRCUIT COURT OF AUSTRALIA

AID18 v Minister for Immigration & Anor (No.2) [2020] FCCA 3383

File number(s):

ADG 40 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

10 December 2020

Catchwords:

MIGRATION – Costs – where the applicant sought the matter be adjourned multiple times.   

Legislation:

Migration Act 1958 (Cth) s 473GB

Federal Circuit Court Rules 2001 (Cth) sch 1 pt 3 div 1

Cases cited:

AID18 v Minister for Home Affairs and Anor [2019] FCCA 3667

Number of paragraphs:

10

Date of last submission/s:

16 April 2020

Date of hearing:

13 March 2020

Place:

Darwin

Counsel for the Applicant:

Mr Solomon-Bridge

Solicitor for the Applicant:

Victoria Immigration Lawyers

Counsel for the Respondents:

Mr McLiver

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

ADG 40 of 2018

BETWEEN:

AID18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	10 DECEMBER 2020

THE COURT ORDERS THAT:

1.The costs of the first respondent be paid by the applicant, such costs to be taxed pursuant to Part 40 of the Federal Court Rules 2011 in the absence of agreement.

REASONS FOR JUDGMENT

JUDGE YOUNG

1. On 2 April 2020 I made an order dismissing the applicant’s application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) to refuse a protection visa to the applicant. I also made an order that unless the parties sought some other order and made submissions within 14 days I would make a costs order in the sum of $7,206 in conformity with the schedule set out in the Federal Circuit Court Rules.

2. The Minister filed a submission within that time seeking an order that his costs be taxed unless agreed.  The applicant filed submissions opposing that course. 

3. The fact that the Minister had sought another order was overlooked and has led to the present delay in finalising the matter.  I apologise to the parties for the oversight.

4. Both parties accepted that in an appropriate case the court may make the order sought by the Minister.  In my view, this is such a case.

5. The particular matter that took the matter out of the run-of-the-mill was that the Minister disclosed that a section 473GB certificate had been issued. The applicant alleged that the IAA committed jurisdictional error by unreasonably deciding not to disclose the material that was subject to the certificate. The IAA in fact disclosed, in summary terms, the information on which it relied: information from a person who was said to be the applicant’s brother which was inconsistent with the applicant’s claims.

6. The matter was adjourned a number of times, initially to enable the applicant to obtain legal representation and later, once he had obtained legal representation, to permit the applicant to contest the Minister’s claim of public interest immunity with a view to establishing, having regard to the nature of the material, that it was unreasonable not to disclose it.

7. The applicant sought discovery, served a notice to produce and the Minister’s claim of public interest immunity over much of the material was subject to a contested hearing.  The Minister relied on affidavits from senior departmental officers.  The parties were appropriately represented by counsel. The result of that hearing is set out in AID18 v Minister for Home Affairs [2019] FCCA 3667. The Minister was substantially successful.

8. The course of the proceedings was out of the ordinary.  The matter was adjourned part-heard on 21 January 2019, further adjourned on 1 March 2019 to permit the applicant to obtain legal representation, an amended application with a new ground of review was filed in April 2019, the matter was again adjourned to 26 November 2019 to hear argument about the public interest immunity claim and final submissions were heard on 13 March 2020.  The Minister says that he has incurred counsel’s fees in the sum of $14,000.  That figure is not obviously unreasonable having regard to the protracted nature of the matter.  The Minister says that, in all the circumstances, the scale amount is inadequate.

9. The applicant opposes the Minister’s application.  He says that the matter was not out of the ordinary and was “a simple matter”.  He submits that he is impecunious, although the submission conceded that that is not relevant to a question of whether a costs order ought to be made.  He further submits that if an order for costs in excess of the scale amount is to be made then this court should make the assessment.  He says that other judges of this court have sometimes adopted that approach.  While it may be that such an approach is open in a simple matter where discrete additional costs have been incurred, an example was given of an extra charge for transcript, it is not appropriate in this case.  Here there has been considerable extra work beyond that expected in a run-of-the-mill case and the applicant’s proposal would require me to effectively conduct a taxation hearing, setting aside an indeterminate amount of time to do so.  I do not propose to adopt that course.

10. In my view, the matter was not “simple” and was not a run-of-the-mill application for review for jurisdictional error.  There were multiple hearing dates with the hearing of the proceeding stretching over more than a year.  I accept that the figure said to have been incurred for counsel’s fees appears not unreasonable and that item alone is well in excess of the scale fee provided in the court rules.  It is appropriate to make the order sought by the Minister.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       10 December 2020