Chol v Minister for Immigration and Anor (No.2)
[2018] FCCA 706
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOL v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 706 |
| Catchwords: MIGRATION – Costs – Application under the Migration Act 1958 (Cth) – application dismissed – power to award costs under the Federal Circuit Court Rules 2001 (Cth) – complexity of matter – Costs order made. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.79, 86 Federal Circuit Court Rules 2001 (Cth), rr.21.02, 21.10, 44.03, 44.15, divs.21.2 and 21.3 of Chapter 1, pt.44 of Chapter 6, pts.1, 2 and div.1 of pt.3 of sch.1 Migration Act 1958 (Cth) |
| Cases cited: Chol v Minister for Immigration & Border Protection [2018] FCCA 306 |
| Applicant: | BOUTROS CHOL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 565 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | Determined on the papers |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr F Nikjoo, Nikjoo Lawyers |
| Solicitors for the Respondents: | Ms A Lucchese, Sparke Helmore |
ORDERS
The applicant pay the first respondent’s costs fixed in the amount of $12,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 565 of 2017
| BOUTROS CHOL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ALEX HAWKE MP IN HIS CAPACITY AS THE ASSISTANT MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant sought judicial review of 2 decisions: first, the decision to cancel the applicant’s Class BA Subclass 202 Global Special Humanitarian visa; and secondly, the decision not to revoke that cancellation.
On 2 March 2018 I delivered judgment in the proceedings and ordered that the application be dismissed: Chol v Minister for Immigration & Border Protection [2018] FCCA 306.
The Minister sought an order that his costs of the proceedings set in the amount of $12,000 be paid by the applicant. In support of that application the Minister relied on the affidavit of Eden Weller who deposed to certain work having been undertaken by the Minister’s solicitors in relation to the proceedings and the amount of counsel’s fees ($4,938.33 excluding GST).
The applicant’s solicitor did not oppose an order for costs set in a particular amount but sought further time to make submissions concerning the amount of those costs. In light of that application, I ordered that the applicant file and serve any submissions in relation to the question of costs within 7 days and that the question of costs was to be determined on the papers.
On 9 March 2018, the applicant’s solicitor filed an affidavit concerning costs. In it, he stated relevantly (without alteration):
…
4.To my knowledge the applicant is a person currently detained at immigration detention and unemployed. I represent the applicant Pro bono in this proceedings.
5.This is a migration matter where the respondent cancelled the applicant’s visa and the applicant sought revocation of that cancellation.
6.Item 3, Division 1, Part 3 of Schedule 1 (Costs) of the Federal Circuit Rules 2001 sets the costs at $7328.00 of a proceedings of migration nature which concluded at a final hearing.
7.Given the circumstances of the applicant and the court power under rule 21.3 of the court rules, I strongly believe it is in the interest of justice for the court to reduce the costs as it sees reasonable.
Leaving aside the question whether this affidavit was no more than a submission, it raises only 2 points concerning the question of costs. First, that the applicant is in immigration detention. That much may be accepted, as his visa was, and remains, cancelled. Secondly, as these were migration proceedings, costs should be set in the amount provided for in the Schedule to the Federal Circuit Court Rules 2001 (Cth).
Section 79(2) of the Federal Circuit Court of Australia Act 1999 (Cth) gives the Court or a Judge “jurisdiction to award costs in all proceedings” except those proceedings in respect of which any other Act provides that costs must not be awarded. Section 79(3) provides that the award of costs is in the discretion of the Court or Judge.
Section 86 of the Act provides that the Rules of Court may make provision for or in relation to the costs of proceedings in the Court.
General provision is made in relation to costs of proceedings in divs.21.2 and 21.3 of the Rules. Those divisions are in Chapter 1 to the Rules and contain, inter alia, rr.21.02 and 21.10.
Sub-rule 21.02(2)(a) provides that, in making an order for costs, the Court may set the amount of costs.
Rule 21.10 of the Rules provides that, unless the Court otherwise orders, a party entitled to costs in a proceeding is entitled to costs in accordance with pts.1 and 2 of sch.1 and disbursements properly incurred.
However, specific provisions concerning migration proceedings are contained in pt.44 of the Rules. Rule 44.03 provides that Chapters 1 and 3 apply, so far as they are relevant and not inconsistent with pt.44 to a proceeding to which pt.44 applies. Rule 44.15 makes provision for costs. It states:
(1)The Court may, in relation to a proceeding that is concluded, order an unsuccessful party in the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1.
It is plain that r.21.10 is inconsistent with r.44.15(1) and, in light of r.44.03 of the Rules, the latter applies to these proceedings.
The difference is important: whereas r.21.10 sets a prima facie rule for the amount of an award for costs, r.44.15 does not. The question for the Court is not, then, whether an amount different to the amount in sch.1 should be awarded, but what amount of costs should be awarded. That said, in my view, the amount in the Schedule may be considered by the Court for the purposes of determining that question.
Division 1 of pt.3 of sch.1 to the Rules is divided into three parts, each addressed to the stage at which a proceeding is concluded. The third part concerns proceedings concluded at a final hearing. While there may be some ambiguity about this, I construe that to be a reference to a matter that is concluded after a final hearing. The amount of costs set for matters in this part is currently $7,328.
The Minister seeks costs in the amount of $12,000. That is roughly 60% above the amount in pt.3 to the Schedule. That is not determinative of the issue. However, using the amount in sch.1 as a comparator, I do not consider the amount of costs sought by the Minister is unreasonable. There were two directions hearings in this matter and a number of amendments were made to the application (the final form was entitled the “Further Second-Amended APPLICATION”). In addition, the applicant served a notice of a constitutional matter under s.78B of the Judiciary Act 1903 (Cth). There were, in other words, a number of steps involved that were out of the ordinary.
Further, one of the issues raised was of considerable difficulty and, although it was ultimately decided by a judgment handed down by the High Court after judgment in these proceedings had been reserved, it took the matter out of the scope of an ordinary proceeding in this Court brought under the Migration Act 1958 (Cth).
Leaving aside any question of comparison, I consider that the amount of $12,000 a reasonable amount for costs in light of the complexity of the matter and the steps involved in it.
I also consider that it is appropriate, given the small amount of costs and the circumstances of the matter in general, for there to be an order for costs set in a particular amount. As I have already noted, the applicant did not oppose an order of that nature.
Conclusion
For those reasons there will be an order that the applicant pay the first respondent’s costs set in the amount of $12,000.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 29 March 2018
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