CJC18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1212    

File number(s):

SYG 1288 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

20 December 2023

Catchwords:

MIGRATION – Immigration Assessment Authority – Costs dispute – Assessment of costs – Temporary Protection visa – Error in interpretation – Whether Jurisdictional error is made out – Costs ordered

Legislation:

Federal Circuit and Family Court of Australia Act 2021(Cth) s 214

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22

Cases cited:

AKZ15 v Minister for Immigration and Border Protection [2015] FCA 1444

 AKZ15 v Minister for Immigration and Anor (No 2) [2015] FCCA 2303

CIQ17 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467

ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658

Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 563

Latoudis v Casey (1990) 170 CLR 534

Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250

Rhodes v Tower Australia Superannuation Ltd [2004] FCA 812

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of last submission/s:

13 December 2023

Date of hearing:

13 December 2023

Place:

Parramatta

Counsel for the Applicant:

 Mr Mostafa

Solicitor for the Applicant:

Varess

Counsel for the Respondents:

Mr Kaplan

Solicitor for the Respondents:

Minter Ellison

ORDERS

SYG 1288 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJC18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	20 DECEMBER 2023

THE COURT ORDERS THAT:

1.The First Respondent should pay the Applicant’s costs fixed in the sum of $16,000.00. This amount is to be paid within 28 days of the date of these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This judgement concerns an acrimonious costs dispute in a migration matter where the Minister conceded, following the very late provision of new information relating to the accuracy of a translation of the interview of the applicant, with the delegate.

2. It is a matter of considerable concern that this dispute has resulted in a contested hearing before the Court, with the necessity for a written judgement to decide the issue. The Court expects that practitioners who regularly appear in the migration jurisdiction of this Court should be able to resolve costs disputes by negotiation between themselves, without the need for a contested hearing, unnecessarily taking up valuable Court time or referral of the matter to a Registrar for an assessment of costs.

3. This is particularly so where the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth)(“Rules”) provide in Schedule 2 Costs, Part 2 Migration Proceedings, Division 1 Migration proceedings that have concluded, scale costs. In the case of a proceeding that has concluded after hearing, those scale costs are currently set at $8,371.30. Where the matter concludes after the first Court date for the proceeding, scale costs are set at $4,189.38. Scale costs are the default position.

4. It should be a very rare case where costs are ordered that diverge from the prescribed scale costs, particularly where the matter has settled prior to a full hearing on the merits before the Court. Practitioners should be aware that the Court retains a discretion to award costs of the contested costs hearing itself, against the unsuccessful party.

   THE HISTORY OF THE MATTER

5. The matter commenced in this Court on 4 May 2018. The applicant is a citizen of Iran. On 23 March 2016, the applicant lodged an application for a Temporary Protection Visa. The applicant claimed that he feared persecution because his father was accused of being a member of Mojahedin-e Khalq and arrested. The applicant claims he participated in demonstrations against the Government in 2009. In 2012, the applicant claims that he was arrested with his girlfriend and detained, falsely accused of having alcoholic drinks in his car and sentenced to 18 months imprisonment. On 26 June 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa.

6. The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 9 April 2018, the Authority affirmed the delegate’s decision not to grant the applicant his visa. A matter in contention before the Authority was the extent of the participation of the applicant in the campaign of a candidate opposed to the Iranian Government in the election.

7. Various pre-trial procedures took place, including A Notice to Admit Facts and two Amended Initiating Applications. The Court notes that the Second Further Amended Application contained no less than 6 grounds of judicial review and was supported with prolix and detailed particulars that ran to some 13 pages.

8. The underlying complaint in the application was that there were errors in the interpretation during the Protection visa (“PV”) interview. This was supported by an Affidavit by an independent Interpreter who had reviewed the interview between the delegate and the applicant. That was served on the first respondent on 6 September 2018.

9. The matter was initially listed for hearing on 11 May 2023. On 10 May 2023, the first respondent requested that the matter be relisted, due to illness of Counsel briefed on behalf of the Minister.

10. The Solicitor for the applicant did not consent unconditionally to the adjournment request and did not seek an order for costs thrown away as a result of the adjournment. Rather, he stated:

    “(We) consent to an adjournment subject to your client consenting that the successful party in this proceeding is entitled to an order that his costs be paid as agreed or taxed.”

11. The Solicitor for the Minister replied:

    “The Minister is otherwise agreeable to your proposal, and consents to an order being made that the successful party in the proceeding is entitled to an order that costs be paid as agreed or taxed.”

12. The Court notes at this juncture, that while the parties may agree between themselves the content of proposed orders by the Court, it is the Court that makes the orders and not the parties by agreement between themselves.

13. The matter was relisted for hearing on 4 July 2023. On 4 July 2023, the applicant filed a further Affidavit from the Interpreter which the applicants admit was filed “in response to [27] of the Minister’s submissions”. This paragraph and the subsequent paragraph highlighted what was contended was a fundamental flaw in ground 4 of the application, in that, irrespective of errors that may have been made in the interpretation of the PV interview there were other parts that were not affected by error and the Authority was entitled to rely upon those parts and in doing so did not misunderstand the applicant’s claims. The first respondent was unable to proceed with the hearing due to this very late development and filing.

14. In an order dated 4 July 2023, the matter was adjourned to a date to be fixed and an order was made for costs thrown away as agreed or assessed. This second costs order effectively neutralised the first costs order in respect of the adjournment of the 11 May 2023 hearing.

15. On 23 October 2023, the Solicitors for the first respondent wrote to the applicant’s Solicitors advising that the first respondent would consent to the final relief sought by the applicant on the basis that the Authority fell into jurisdictional error by reasons of errors in interpretation that led it to fail to conduct a review of the delegate’s decision. Since then, the parties have been unable to agree on costs.

    THE APPLICANT’S SUBMISSIONS

16. The applicant claims that they are entitled to rely upon the agreement with the Solicitors for the first respondent dating from May 2023 (“May agreement”) and that should be the end of the matter. Further, had the first respondent prevailed they would have had the benefit of their costs being assessed or agreed. The applicant relies on the assertion that the May agreement was a binding contract that the Court should enforce.

17. It was submitted that it is not unusual for costs between the parties to be other than scale in circumstances where the complexity of the matter is beyond what might be reasonably expected.

18. Further, the applicant seeks costs for the Costs Application itself. These were initially sought on an indemnity basis, however this position was not pressed during the oral hearing.

19. During the oral hearing reliance was placed on AKZ15 v Minister for Immigration and Border Protection [2015] FCA 1444 (“AKZ15”) per Jagot J.

20. That matter involved an appeal to the Federal Court of Australia against orders by the then Federal Circuit Court of Australia dismissing an application for judicial review against a decision of the Administrative Appeals Tribunal to affirm a decision not to grant AKZ15 a protection visa. In AKZ15 v Minister for Immigration and Anor (No 2) [2015] FCCA 2303 the Court refused an adjournment application to require the Minister to prove costs that had been incurred by way of an Affidavit, and instead ordered costs in a fixed sum. At [68] Jogot J stated:

    [68] I accept that if the appellant wanted to see proof of the costs incurred then the discretionary options available to the primary judge consistent with the requirements of procedural fairness were only two.  The primary judge could have adjourned the matter to enable the Minister to provide an affidavit proving the costs.  Alternatively, the primary judge could have decided that in the circumstances the usual order as to costs should be made. The appellants claimed impecunious citing not being a sufficient reason to adjourn the costs issue as set out above.  The primary judge erred in making the fixed costs order.  The appellant was denied procedural fairness in this regard.  Given the circumstances I consider that this aspect of the matter should not be remitted to the primary judge.  Rather, I should make an order setting aside the costs order and replacing it with an order for the usual order as to costs.

21. It was submitted that in fact the default position in relation to costs in migration matters should be costs as assessed or agreed, rather than any fixed sum by reference to the scale amount.  In circumstances where there had at least been some agreement with the first respondent’s solicitors, then the default position with respect to costs should be as agreed or assessed.

    THE FIRST RESPONDENT’S SUBMISSIONS

22. On behalf of the first respondent it was conceded that, costs usually follow the event.  However, a Court may deny a successful party its costs where it has acted in a way to occasion unnecessary expense (see; Latoudis v Casey (1990) 170 CLR 534 (“Latoudis”) at [544]), and where their success stems from a late amendment of their case (see; Rhodes v Tower Australia Superannuation Ltd [2004] FCA 812 (“Rhodes”) at [19] – [20]).

23. In this case, the service of the additional Interpreters evidence, which was the same as the evidence served in 2018 and related to one of the claims for protection, which was covered in the Affidavit of September 2018, caused the first respondent to incur unnecessary costs.  The second Affidavit contained evidence of this, fatal to the first respondent’s defence of the Authority’s decision.  It was submitted that the Court could comfortably infer that the 4 July 2023 Affidavit of the Interpreter was served, because it was perceived by the applicant that there were gaps in the September 2018 Affidavit which the first respondent’s written submissions sought to expose.  Had these gaps not been addressed, it may have resulted in a rejection of ground four.  It was submitted that the applicant has provided no reason, let alone any good reason, why that 4 July 2023 Affidavit could not have been provided in 2018.

24. It was submitted that it was appropriate that any order made on 4 July 2023 requiring the applicant to pay costs thrown away by the first respondent should be set aside on the basis the applicant has ultimately been successful.

25. However, it was submitted that costs should be limited to the scale amount.  Scale costs “exist to provide simplicity and certainty in determining costs”: (see; Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250 (“Pierson’s”) at [43]). As far as migration matters are concerned, scale costs are “intended to represent… a standard unit equivalent migration proceeding which concludes at a final hearing in this Court”: (see; AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 257 (“AHE18”) at [4] per Given J).

26. It was submitted that the scale amount would in fact have been an appropriate amount noting that whilst the applicant was successful on ground four, the matter did not proceed to a final hearing and there was no determination on the merits of the applicant’s other grounds of judicial review.

27. It was conceded however, given the unusual nature of this case, that it would be a fair exercise of discretion, if the Court was not minded to award the scale amount, and to award costs in the applicant’s favour fixed in the sum of $14,000.00,  which represented 1/5 of the amount claimed by the applicant of $70,000.00, noting the applicant relied upon five grounds of judicial review.  This is akin to treating each of the proposed grounds of judicial review as a separate event.

28. In relation to the alleged agreement on costs, it was submitted that as at the time of the asserted agreement, on 10 May 2023, this did not include the subsequent Affidavit made by the Interpreter on 4 July 2023.  Further, there was no suggestion by the applicant’s Solicitor prior to 10 May 2023 that the applicant was proposing to serve such an Affidavit. Had this been communicated to the Minister’s representatives, they may not have responded in the way that they did.  It could not reasonably be the situation that the first respondent would be held to any agreement in the face of an unanticipated retrospective amendment that rendered the first respondent’s case untenable.

29. Secondly, even assuming the parties entered into a contract, which is not conceded, it was informal in nature and did not spell out completely and formally its terms.  That being so, a term can be implied by reference to the imputed intention of the parties if it is necessary for the reasonable or effective operation of the contract in the circumstances of the case.  That term is that each party agreed to pay opposing parties costs on, (at least) the case pleaded by the applicant and the evidence that had been served by him in support of that case prior to 10 May 2023.

30. Thirdly, it was submitted that the first respondent did not receive (that is, good or valuable) consideration.  It was inevitable that the Court would vacate the hearing on 11 May 2023 in circumstances where Counsel for the first respondent was unwell, and it was communicated to the Court that he would be unable to appear.  As to any submission that the first respondent receives valuable consideration because the applicant indicated he would consent to an order paying the first respondent’s costs or as agreed, as this Court said in AHE18 at [11] the Court “will simply not just ’rubber stamp’ orders just because [a party]’ has consented to them”.  What orders are made by the Court is, ultimately, a matter for the Court and not the parties.

31. The Court was also referred to ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658 (“ENY17”) per Laing J. That matter also dealt with an application, by the same Solicitors as acting for the applicant in this matter, seeking costs against the Minister as assessed or agreed rather than an amount fixed by the Court. At paragraphs [21] – 25] Laing J set out the relevant provisions relating to costs of the Federal Circuit and Family Court of Australia Act 2021 (Cth) being s 214(2) and (3) of the Act together with r 22.03, 22.09 and 22.13 of the Rules.

32. At [26] – [38], Her Honour reviewed relevant cases including Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 563 (“Gehlert”) at [24]- [26] and 62] in which Judge Lucev considered a costs application where the matter was conceded by the Minister prior to hearing. At [26] His Honour stated:

    [26] In some cases a successful party in this Court will incur significantly more in costs than is recoverable pursuant to the relevant costs scale.  It does not follow that that is an unjust result, where it occurs.  It has been said that the Court’s cost scales are publicly available and parties to litigation should be aware that the relevant costs scale is likely to determine their maximum recoverable costs should say succeed, and that if parties wish to incur significantly more costs in litigation in this Court than they could ever recover, that is a matter for them: Hinchliffe [No2] (citation omitted) at [10] per Driver FM, and, it might be added, their lawyers.

33. Judge Laing noted at [30] that heavy reliance was placed by the applicants in ENY17 on the decision of Judge Manousaridis in CIQ17 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 (“CIQ17”). In that case, His Honour accepted at [27] that the scale amounts “represent an assessment by the Court of what can be considered to be reasonably and properly incurred in a proceeding under the Migration Act 1958 (Cth) on a party and party basis”. However, His Honour considered that the type of proceeding the Court would have had in mind in setting a scale, would have been a typical proceeding in which the applicant is not legally represented.

34. His Honour at [24] rejected that the discretion to set costs at the then applicable scale amount ought to be regarded as the “default rule”, in circumstances where it was only one of a number of orders the Court can make in relation to the setting of costs.

35. In the Court’s view, the scale amount should not just be restricted to matters where the applicant is unrepresented, rather, the Court prefers the approach of Lecev J in Gehlert set out above and adopted by Liang J at [34] in ENY17.

    SHOULD THE MATTER BE REFERRED TO A REGISTRAR FOR AN ASSESSMENT OF COSTS?

36. In all of the circumstances, the Court is not satisfied that this is a matter that the Court ought to refer the question of costs to a Registrar for an assessment.  While it was put to the Court that it should give primacy to the purported agreement between the parties reached in May 2023, the question of the amount of costs to be paid is a matter for the Court and not for the parties to determine, and for the Court to “rubber stamp”.  It is essential that the Court retains control over proceedings before it, in all aspects, including as to costs.

37. This matter has been before the Court for some time and has been case managed by me.  I am fully seized of all the relevant circumstances that have occurred in the case including those leading to the substantive outcome of the proceedings.  The Court has had the benefit of an oral hearing in which the amount of costs that should be ordered has been fully ventilated before it.  In these circumstances with noting the relevant Rules, and in particular r 22.02, the Court is satisfied that it can and should make a final order in relation to costs and not protract the matter further by referring the matter to a Registrar for an assessment, in circumstances where that Registrar may not be fully seized of all the relevant facts and circumstances.

1. The Court is satisfied that it is appropriate for a fixed costs order to be made.  The Court notes the concession by the first respondent that costs fixed in an amount of $14,000.00 would be appropriate.  The Court notes that the applicant’s grounds of judicial review were amended on a number of occasions and that the Final Further Amended Application was in the Courts view, prolix, and lacked both brevity and clarity which the Court is entitled to expect.  The Court notes that the concession made by the first respondent only occurred after a second Affidavit from an Interpreter was filed in response to the first respondent’s written submissions at final hearing.  Had the material contained in that Affidavit been filed in 2018, it is likely that the first respondent would have conceded the matter then and the proceedings brought to an early conclusion.

2. The Court has taken account of the fact that the applicant would have incurred additional disbursements in retaining a qualified interpreter to check and interpret the Protection visa interview with the delegate.  The Court notes that both parties have caused the matter to be adjourned on one occasion each due to first, the unfortunate illness of the first respondent’s Counsel and second, by the late provision of a second Interpreter’s Affidavit.  In the Court’s view, these matters cancel each other out.

3. Noting that the first respondent’s concession that the amount of $14,000.00 in costs would be a fair amount, and the additional cost to the applicant of having a qualified Interpreter retained to give evidence, the Court is satisfied that an amount of $16,000.00 under all the circumstances is appropriate.

   CONCLUSION

4. Accordingly, the order of the Court is that the first respondent should pay the applicants cost fixed in the sum of $16,000.00. This is to be paid within 28 days of the date of these orders.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       20 December 2023