CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 921
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 921
File number(s): SYG 1552 of 2021 Judgment of: JUDGE LAING Date of judgment: 11 October 2023 Catchwords: MIGRATION – costs – cost sought fixed in an amount other than scale – relevant principles – fixed costs order made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Cases cited: AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 907
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 11 October 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms C Warren of Sparke Helmore Lawyers Second Respondent Submitting appearance, save as to costs ORDERS
SYG 1552 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTB21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING:
Before the Court is an application for costs fixed in an amount above scale. This follows delivery of judgment today in CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 907, in which I dismissed an application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) contains what is commonly referred to as the Court’s “scale” in relation to migration proceedings. It states the following in relation to such proceedings that have been determined other than by discontinuance:
Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,675.75 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing$4,189.38 3 A proceeding concluded at a final hearing $8,371.30
Determination of this matter occurred after the matter had been listed for hearing of the applicant’s extension of time application and, if granted, final hearing of the application. As the extension of time was not granted, the matter has not technically been concluded at a final hearing. The applicable scale amount is therefore $4,189.38. This is notwithstanding the fact that the Minister would have been required to prepare for the possibility that the listing in question may have ultimately proceeded by way of final hearing. Had the extension of time been granted, the applicable scale amount would have been $8,371.30. This would have been so even if determination of the proceedings in this manner had not required any substantial difference in the work required of the Minister. The Minister submits that the amount of $8,371.30 would be an appropriate quantum to order in the present case.
Whilst due regard is to be had to the Court’s scale, the Court is not bound to impose it. In an application such as the present, the Court will consider what represents “a fair indemnity for the costs the successful party has incurred”: CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [23]-[28] per Judge Manousaridis. To that end, it may be useful to consider the usual steps involved in proceedings of this nature. In this regard, the following usual steps that the Minister may be expected to undertake in proceedings such as the present were identified by Judge Given in AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 at [7]:
7.While processes have varied somewhat over the years and, occasionally, between different registries, it can be accepted that a standard migration proceeding ordinarily involves a number of usual steps (DZW17 (No 2)). For the Minister, those steps will usually include:
(a) the originating application and Affidavit in support;
(b) preparing a Response and Submitting Appearance;
(c)sometimes, attendance at a first court date if the matter was initially filed in the Sydney registry (albeit that practice has now changed post-COVID-19);
(d) preparation of the Court Book;
(e)a grant of leave to the applicant to amend and consequential requirement for the first respondent to consider same;
(f) consideration of the applicant’s submissions;
(g)preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and
(h)attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere around two hours or two and a half hours) …
Not all of these steps will be undertaken in all cases. For example, submissions are not always filed or served by an applicant, particularly where the applicant is unrepresented. Regardless, I accept that in the present case, work beyond the norm has been required of the Minister. Most notably, the Minister has been required to prepare for and attend two hearings in this matter. This was on the basis that although the matter was listed for an extension of time, the matter may have proceeded by way of final hearing if the extension of time were granted. The first hearing was adjourned some time after the commencement of the hearing, after the applicant informed the Court that he required an interpreter in a particular dialect despite having generally requested a Mandarin interpreter in his application.
The second hearing concluded on the basis that the applicant was granted some additional time in which to consider the audio of the Tribunal hearing. The Minister was ordered to provide a copy of the audio to him within a specified time. After judgment had been delivered in this matter, the applicant submitted that he had not received the hearing audio when he was invited to respond to the Minister’s costs application. This was after the Minister’s affidavit claiming this as a costs item had been interpreted for the applicant. However, no issue in this regard appears to have been raised by the applicant to the Minister’s representative or the Court prior to judgment being delivered. I am informed by the Minister’s representative that the audio was, in fact, sent to the applicant. In any event, the costs of sending the audio are not likely to have substantially increased the Minister’s costs in these proceedings. Costs would, however, have been expected to have been substantially increased by the Minister having to prepare for and appear at a second hearing.
The Minister relies upon an affidavit of Carly Maree Warren affirmed on 10 October 2023, which deposes to the Minister’s costs in this matter exceeding $10,000 (excluding GST).
Having regard to the foregoing, I am satisfied that the higher amount of $8,371.30 represents a “fair indemnity” regarding the Minister’s costs in this matter. This is the amount that would have been the applicable scale amount if the extension of time had been granted. The fact that the Minister has had to perform additional work in this matter, and in particular has been required to prepare for and attend two hearings, satisfies me that it is an appropriate amount to award in this case.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 October 2023
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