Deciyanto v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 168
•17 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deciyanto v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 168
File number(s): SYG 2592 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 17 February 2025 Catchwords: MIGRATION – Student visa – Impermissible merits review – Unparticularised grounds – Application dismissed Legislation: Migration Act1958 (Cth), s 474
Migration Regulations 1994 (Cth), cl 500 sch 2
Cases cited: Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2) [2024] FedCFamC2G 1315
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: General Number of paragraphs: 60 Date of hearing: 5 February 2025 Place: Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms G. Gutman (MinterEllison) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2592 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FREDY DECIYANTO
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
17 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 17 November 2020 is dismissed.
2.The applicant must pay the first respondent’s costs and disbursements of and incidental to the proceedings, fixed in the amount of $5,900.
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 ELDERSHAW
INTRODUCTION
This is an application for judicial review made under s 476 of the Migration Act1958 (Cth) (Act) of a decision made by the Administrative Appeals Tribunal (Tribunal) dated 21 October 2020 (Decision). The applicant seeks that the Decision be quashed and a writ of mandamus. The Minister seeks that the application be dismissed with costs.
The applicant, Mr Fredy Deciyanto, is a citizen of Indonesia.
On 14 November 2018, the applicant applied to the Department of Home Affairs (Department) for a Student (Temporary) (class TU) Student (subclass 500) visa (Student Visa). On 8 March 2019, the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). On 26 March 2019, the applicant applied to the Tribunal for a review of the Delegate’s decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s Decision.
For the reasons which follow, the application will be dismissed with costs.
DOCUMENTS
The Minister filed a Court Book on 2 February 2021 which was admitted into evidence without objection and marked Exhibit R1.
The applicant relies on his application and affidavit both of which were filed in this Court on 20 November 2020.
The Minister relied on the Court Book which included his Response filed 30 November 2020, and written submissions filed 21 November 2024. The Minister’s legal representative read, but did not rely on, an affidavit from Ms Sophie Edmonstone filed 29 January 2025, which addressed the service of documents.
LEGAL FRAMEWORK
Clause 500 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfies clause 500.212(a), i.e. that he “intends genuinely to stay in Australia temporarily”, the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses a number of factors which guide the decision-making process relating to the genuine temporary entrant requirement.
This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
BACKGROUND FACTS AND MIGRATION HISTORY
The applicant was born on 29 December 1978 in Indonesia. His family resides in Indonesia.
On 16 August 2008, the applicant first arrived in Australia. Between the time of his arrival and February 2013, the applicant completed an English language course, a Diploma of Business and a Diploma of Human Resources Management. He held student visas during this period.
In about June 2013, the applicant returned to Indonesia, where he remained until about July 2015. Throughout this time, the applicant was employed as Head of Warehouse at “Toko Maju”, a cooking supply business.
The applicant came to Australia on a further student visa in July 2015. According to the Request for Student Visa Information provided by the applicant to the Tribunal, that visa expired in August 2018 and a fourth student visa was granted in May 2016 which expired in November 2018.
Between July 2015 and April 2016, the applicant was enrolled in, but did not complete, a Bachelor of Business and a Certificate III in Tourism.
From April 2016 to September 2018, the applicant completed an Advanced Diploma of Hospitality Management. In October 2018, the applicant commenced a Certificate IV in Commercial Cookery.
On 14 November 2018, the applicant lodged the subject application for a student visa. In this application, he addressed the “Genuine Temporary Entrant Requirement” as follows:
I choose to study Certificate IV in Commercial Cookery because I really enjoy my work as cook, and decided to become a chef in the future. For that purpose, I believe getting the formal education & qualification is important because it can support my chosen career in the future. I believe the qualification I will be getting combined with my work experiences & previous qualifications I have will support & enable me to achieve that career goal. I choose to study at APEX Institute of Education because they're one of the colleges that offer commercial cookery course & the tuition fee within the budget my parents give. On its website, APEX states they have 12 courses available & offer to international students, they have good mixture of students from 30+ different nationalities with more than 3,000 graduates since 2010. More importantly, the commercial cookery course at APEX has been running for a while, so I believe they must have offer & run good quality education all this time compares to other colleges that just recently offer the same cookery course. I choose to study in Australia mainly because the education qualifications are highly recognised in Indonesia, it's a help to secure a job. Australia is well known as one of the study destination countries in Indonesia. As the closest western country from Indonesia & because I had studied in Australia before, automatically I choose Australia rather than other country. It's also easier for my parents/sisters to come & visit me because Australia is quite close (around 10 hours flight from Semarang via Jakarta) compares to if I study in other western countries. I don't choose to study in Indonesia because for similar course the tuition fee will also expensive, but it will not be the same with what I'm studying in Australia. I might as well study in Australia where I can gain more work experience in an Australian working environment that benefit my future career goal.
In the application, the applicant described the type of employment he would be seeking at the completion of the course as follows:
I want to become a chef in the future (salary between AUD 936 to AUD 2,340 per month) & hopefully will progress to an executive chef in the future after (the salary between AUD 69,000 to AUD 83,000 per year).
On 8 March 2019, the application was refused by the Delegate, who was not satisfied that the applicant met the genuine temporary entrant criterion.
On 26 March 2019, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 23 April 2020, the Tribunal invited the applicant to provide, in writing, all relevant information about the course of study he was undertaking and his entry and stay in Australia as a student.
In April 2020, the applicant completed the Certificate IV in Commercial Cookery. In May 2020, he enrolled in an Advanced Diploma of Leadership and Management which would conclude in November 2021. The Certificate of Enrolment for the Advanced Diploma course was before the Tribunal.
On about 5 May 2020, in response to the Tribunal’s correspondence of 23 April 2020, the applicant’s migration agent filed a completed “Request for Student Visa Information under s.359(2) of the Migration Act” and other evidence with the Tribunal. Amongst other information provided in this document, the applicant:
(a)denied any involvement in community groups in Australia or Indonesia, nor any military service obligations or political or civil unrest in Indonesia;
(b)said that he chose to study at the stated education provider because:
I choose to study at VIA Education because there is Advanced Diploma of Leadership & Management I want to study. On the website ( it states that course content will be up-to-date & can meet the workplace's need, so I believe VIA Education will provide trainers & assessors with good skills to teach us the skills & knowledge relates to the leadership & management so in term of quality I believe they have good quality. The course will help me to get an employment and open own business in hospitality sector in the future in Indonesia. From location wise, VIA Education is in the city where it's so close (within walking distance) - 5 minutes from where I live, and the tuition fee is affordable. It is not the cheapest education provider for leadership & management, but I choose VIA Education because I believe the quality.
I already complete Certificate IV in Commercial Cookery at APEX Institute of Education but it takes a while to get the documents evidence I already complete them.
(c)said that his reason for not undertaking a similar course of study in Indonesia was that:
There are similar management or business courses in Indonesia, but since I didn't complete Year 12 it is not possible for me study in the college there. Even though I have completed Diploma or Advanced Diploma in Australia, I still need to complete Year 12 to enrol study in Indonesia. And in Indonesia to complete this qualification take 3 years (Diploma Level III).
(d)said of his employment plans:
I will try get a short-term employment in hospitality field and finally would like to open my own business in hospitality in Indonesia after completing my course in Australia. I think that courses that I completed and currently enrolled will provide me knowledge and skills to look for a job and open own business in hospitality sector in Indonesia immensely. The courses are very related to each other in terms of skills for the employment and running business.
(e)said of the remuneration he expected to receive after gaining the qualification from the proposed course of study:
I think I can earn around IDR 9 million - IDR 23 million per month if I work in the hospitality sector as chef that hold overseas qualification, according to the information I saw on the internet ( If I can become executive chef, the salary is even higher (around IDR 690 million - IDR 830 million per year). It is very high as usually for one adult, the living expenses in a month only around IDR 3.5 million - IDR 5 million.
(f)provided a written statement to the Tribunal dated 5 May 2020.
On 19 October 2020, the applicant appeared before the Tribunal where he gave evidence and presented arguments with the assistance of his migration agent and an Indonesian interpreter.
On 21 October 2020, the Tribunal affirmed the decision of the delegate to refuse the applicant’s visa application.
Save for two periods of travel to Indonesia, each of about a month’s duration in 2017-2018 and 2019, the applicant has been in Australia since about July 2015.
The Tribunal’s decision and reasons
The Tribunal’s decision to affirm the Delegate’s decision and its reasons for doing so were summarised in the Minister’s written submissions which I adopt:
8. The Tribunal was unpersuaded that the leadership and management course would meaningfully assist the applicant in effecting his career plan should he complete it. The Tribunal was also mindful given the applicant's age, overall work history and study experience that he was well placed to return home to open his own café or restaurant. The Tribunal did not objectively consider the course would meaningfully add to the applicant's employment prospects given his plan was to start his own business and considered that it appeared of little value. Further, the Tribunal noted there was a lack of specific evidence to substantiate the applicant's claim of an expected increase in remuneration in Indonesia if he completed the course.
9. The Tribunal was mindful that the applicant had only studied in the VET sector and that if he completed the course he would have been in Australia for approximately 11 years. The Tribunal considered the applicant was seeking to use the advanced diploma as a means for maintaining an ongoing residence in Australia. Further, the Tribunal noted that the applicant did not provide any evidence to substantiate his claim that he could not study a similar course in Indonesia and it did not consider the general benefits of studying in Australia weighed heavily as reasonable reasons for studying here. In relation to his ties, given the length of his time studying in Australia to date, the Tribunal considered that the applicant’s family in Indonesia did not act as a significant incentive for him to return to Indonesia.
10. The Tribunal considered that the applicant had not identified any property or significant assets owned by him in Indonesia and noted the applicant's listed salary and expenses in Australia as identified in his completed Request for Student Visa Information. The Tribunal noted that the applicant appeared to have stable employment and that his oral evidence was that his income was applied to his expenses, although his parents gave him approximately $9,800 in 2015, 2018 and 2019. The Tribunal ultimately considered it could not conclude on the evidence whether economic circumstances operate as an incentive for the applicant to remain in Australia or to return to Indonesia and therefore accorded this factor neutral weight.
11.The Tribunal noted the applicant had returned to Indonesia between June 2013 and July 2015 but that since first arriving in Australia in August 2008 he had otherwise made only a few trips home which suggested he was using the student visa program to maintain residence in Australia. The Tribunal considered this weighed heavily against concluding the applicant was a genuine temporary entrant for study in Australia. On the basis of the information before it, the Tribunal on balance was not satisfied the applicant genuinely intended to stay in Australia temporarily and considered it difficult to reconcile a proposed total 11 year stay within the meaning of temporary. Further, it considered the applicant had not demonstrated that there was any real value in completing the course.
12. For those reasons, the Tribunal was not satisfied the applicant met cl 500.212 of sch 2 to the Regulations and so affirmed the decision of the delegate to refuse to grant him the visa.
(References omitted)
THE PROCEEDING IN THIS COURT
On 17 November 2019, the applicant filed an application for judicial review in this Court, alleging:
1. AAT did not consider my review application appropriately and affirmed the DHA's decision.
2. AAT's decision was unfair as it will hinder me to complete my ongoing study and qualification in Australia and will also be an obstacle to build up a better career in the future.
On 20 September 2024, a Registrar made direction that, by 1 November 2024, the applicant was to file and serve any amended application giving proper particulars of the grounds of the application, any further affidavit evidence and any further written submissions. The applicant did not file any such documents. The applicant’s affidavit filed with his application does no more than re-state the grounds of review contained in the application and annexes the Tribunal’s Decision.
CONSIDERATION
Ground 1
The first ground alleges that the Tribunal did not consider the review application “appropriately”. The words “and affirmed the DHA’s decision” do not add to the ground or otherwise assist in identifying a jurisdictional error in that the affirmation of the Delegate’s decision is no more than the outcome of the review.
Submissions
The applicant submitted at the hearing that in 2019, when his visa was “cancelled” by the Tribunal, he was studying cookery and advanced hospitality management and was working in that field. The applicant submitted that he believed that the course could add to his skill and knowledge to work in that field. The applicant reiterated that when the visa was “cancelled”, he was in the middle of his studies. I interpret “cancel” to mean that the student visa application was unsuccessful.
The Minister said at [14] to [18] of his written submissions that:
14.Ground 1 complains that the Tribunal failed to properly consider the applicant’s merits review application. In the absence of further and better particulars, the first ground is too broad to be capable of establishing jurisdictional error: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J.
15.It is a matter for the Tribunal as to the weight to be given to the evidence before it and the factors under Direction No 69 to which the evidence related to (sic): Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [29] per Perry J. Further, the factors in Direction No 69 which must be taken into account are those which are the subject of substantial, clearly articulated claims or those that squarely arise from the material: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] per Steward J.
16.The Tribunal expressly considered the value of the proposed course of study to the applicant’s future career plans ([12] of Direction No 69) and whether he could study in Indonesia ([9.a] of Direction No 69), his personal ties to Indonesia (([9.b] of Direction No 69), his potential circumstances in Australia ([11] of Direction No 69) and his study and immigration history ([13] of Direction No 69).
17.The Minister submits that it was open to the Tribunal to doubt the value of the leadership and management course to the applicant’s future plans of working in food and hospitality given his work experience in cafes and restaurants and previous study in the area. In turn, the time of the applicant’s period of residence in Australia and his long VET study history were open to be relied upon by the Tribunal in considering whether he was attempting to maintain residence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. Further, the Tribunal had identified that the applicant had not provided any evidence to support his claim that he could not undertake the course in Indonesia or that he would receive a higher remuneration because of it: Hernandez v Minister for Home Affairs [2020] FCA 415 at [33] per Charlesworth J.
18.In relation to the applicant’s ties to Indonesia, the Tribunal identified that the applicant had been in Australia for nearly 11 years returning to Indonesia for a two year period in between, that he communicated with his family often by telephone, that this son lived with his ex-wife and not with him, and that there was no evidence that he had applied for a bridging visa which would allow him to return to Indonesia and back to Australia since he lodged the application for the visa. We consider these circumstances provide a logical and rational basis for why the Tribunal did not consider the applicant’s family provided a significant incentive for him to return to Indonesia: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ. The Minister submits the ground should fail.
(References omitted)
The Minister’s legal representative submitted orally that the applicant was inviting the court to impermissibly review the merits of the Tribunal’s decision. She also corrected the reference in paragraph 18 of the Minister’s written submissions to Minister for Immigration and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 supra at [135] per Crennan and Bell JJ.
Discussion
Firstly, the applicant’s submission that he believed that the course could add to his skill and knowledge to work in his chosen field makes it clear that he asks this Court to engage in a review of the merits of his application. Such is impermissible, for which reason the first ground fails: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Secondly, I agree with [14] of the Minister’s written submissions that the first ground is vague and unparticularised and may thus be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J. This lack of particularity persisted notwithstanding the Registrar’s direction on 20 September 2024 to file any further amended application giving proper particulars of the ground of the application, affidavit evidence and written submissions. The first ground also fails for lack of particularity.
Thirdly, nothing arises from the material before this Court to suggest that the Tribunal did not consider the review application according to law. It applied the correct statutory provisions, correctly turned its mind to whether the applicant satisfied the “genuine temporary entrant criteria” (the issue of currency of enrolment not being in issue), and applied the Direction as a guide to decision making rather than a checklist.
The Tribunal cited an accurate travel and visa history, had regard to the documents provided to it by Mr Deciyanto and accurately summarised the applicant’s study history (per [12] to [15] of its Reasons).
The Tribunal found that the applicant did not have any employment ties to Indonesia that served as an incentive for him to return home. This was open to the Tribunal on the evidence, which was summarised at [16] of its Reasons and reflected in the information provided to the Tribunal by the applicant in the Request for Student Visa Information.
The Tribunal did not consider that completing the Advanced Diploma in Leadership and Management would meaningfully add to the applicant’s employment prospects in his plans to open his own café or restaurant (per [21] of its Reasons). Having regard to the discussion found at [17] to [20] of its Reasons, the applicant’s work history, evidence given by the applicant as to his career plans and how the course would be of value to him, and recognition of prior completed course of study, it was open on the evidence for the Tribunal to so find.
The Tribunal identified that there was a lack of “specific evidence” about expected remuneration and, on that basis, found that the Advanced Diploma in Leadership and Management would not increase the applicant’s remuneration in Indonesia (see [22] of its Reasons). Given the information provided to the Tribunal as to remuneration by the applicant was based on a bare assertion and an historic article, it was open to the Tribunal to so find.
The Tribunal found that the applicant was seeking to use the Advanced Diploma in Leadership and Management as a means of maintaining ongoing residence in Australia (per [23] of its Reasons). The Tribunal relied on the fact that the applicant would have stayed in Australia for approximately 11 years while only successfully studying in the vocational education sector. This finding was open to the Tribunal on the evidence.
The Tribunal found that the general benefits of studying in Australia, as asserted by the applicant, did not weigh heavily against undertaking the course of study in Indonesia (per [24] of its Reasons). In reaching this view, the Tribunal referred to the unsubstantiated assertion by the applicant that he could not study the same course in Indonesia. It was open to the Tribunal to so find, given the absence of evidence.
The Tribunal was mindful that the applicant held a Bridging Visa A which did not allow him to travel between Australia and Indonesia since November 2018, and thus found that his family was not a significant incentive to return to Indonesia (see [26] of its Reasons). This finding was open to the Tribunal on the evidence.
The Tribunal found that the applicant’s few trips home since 2018, as evidenced by the applicant in his Request for Student Visa Information document, weighed heavily against concluding that the applicant was a genuine temporary entrant (per [30] of its Reasons). The weight to be applied to the evidence is a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.
For these reasons, I agree with [15] to [18] of the Minister’s written submissions as to why the first ground fails by reference to the way the Tribunal considered the application and the logicality and rationality of the conclusion it reached that the applicant did not satisfy the genuine temporary entrant criterion.
The first ground of review fails.
Ground 2
The second ground alleges that the Tribunal’s decision was unfair in that it will hinder the applicant from completing his ongoing study and qualification in Australia and will also be an obstacle to building up a better career in the future.
The words “in that it will” operate to explain and confine the basis of the allegation that the decision was “unfair”. That is, the reason that the decision was “unfair” relates to the effect of the decision, not the process by which the decision was made.
As with the first ground, the only articulation of the basis of the second ground were the applicant’s oral submissions made at the hearing. The applicant applied his submissions for the first ground to the second ground and added that he was studying hospitality and cookery to advance his career in hospitality management. When asked whether he was saying that the process was unfair or whether he disagreed with the outcome at the Tribunal, the applicant stated that he disagreed with the outcome.
The Minister’s legal representative relied on her written submissions but made brief oral submissions in which she identified that the applicant was inviting the court to engage in a review of the merits of the Tribunal’s decision.
The applicant was invited to make submissions in reply and enquired as to the meaning of a “merits review” which was provided by the Court. The applicant further submitted that when he was studying, he did all his courses seriously, was always present and genuinely wanted to get the qualification to support his knowledge and skill in his field of work. He said, in answer to a question from the Court, that he was not alleging a legal error.
The second ground invites the court to impermissibly review the merits of the Tribunal’s decision and so fails.
CONCLUSION ON APPLICATION FOR JUDICIAL REVIEW
Jurisdictional error on the part of the Tribunal has not been demonstrated, for which reason the application will be dismissed.
APPLICATION FOR COSTS
As the application has been dismissed, the Minister seeks his costs of $5,900. The applicant opposes this and seeks leniency.
Legal Framework
In Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2) [2024] FedCFamC2G 1315 at [14] to [23], Judge Mansini summarised the principles relating to costs orders in migration matters as follows:
[14] The Court has a wide discretion to make costs orders: s.214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
[15] Division 22.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules), which applies to migration proceedings, provides a number of options to the Court in the exercise of its discretion under s.214(3). Relevantly, at r.22.02, that an application for costs may be made within a time allowed by the Court and, in making an order for costs in a proceeding, the Court may:
a. set the amount of the costs; or
b. set the method by which the costs are to be calculated; or
c.refer the costs for taxation under Part 40 of the Federal Court Rules; or
d.set a time for the payment of the costs, which may be before the proceeding is concluded.
[16] The Court may specify the maximum costs that may be recovered on a party and party basis, whether on its own initiative or on application of a party subject only to a specified amount not including an amount that a party is ordered to pay because the party has failed to comply with Court orders, has sought leave to amend a document or has otherwise caused a party to incur costs that were not necessary for the economic and efficient progress of the proceeding or the hearing of the proceeding: rr.22.03(1) and (2).
[17] Division 22.3 then outlines a process for quantification of costs where not specified in the order.
[18] Whilst expressly not precluding an application under Part 22, in migration proceedings the Court may order an unsuccessful party to the proceeding to pay the costs of the successful party in accordance with the event based scale at Division 1 of Part 2 of Schedule 2: rr.29.13(1) and (3). For final proceedings, that amount is presently $8,371.30.
[19] Whilst the GFL Rules deal with the way in which the Court’s discretion may be exercised they do not require the exercise of the discretion in a particular manner: Gehlert at [65]. The Full Court’s guidance as to the exercise of the discretion in Gehlert relevantly including the following:
[66]However, the presence of r 29.13, and the presence of Pt 2 of Sch 2 in the scheme for the award of costs by the FCFCOA in migration proceedings evinces an intention that any application for costs be measured or assessed in a context where the Court (or Judge) is conscious that a majority of the Judges of the Court have agreed to fix a scale of costs considered to be generally applicable to migration proceedings, and considered to provide an express benchmark for what may be seen as fair and just in a given case.
[67]The same is true of Pt 1 of Sch 2 in relation to GFL proceedings other than migration proceedings. However, the critical point is that both parts of Sch 2 are to operate as benchmarks or guidance, informed as they are by the external review processes to which the parties referred in argument, and consideration of what is likely to be incurred in conducting proceedings in the GFL jurisdiction. It remains up to an individual Judge, in the particular circumstances of the case before them, and being faithful to the broad discretion in s 214(3) of the FCFCOA Act, informed by r 22.02 of the GFL Rules, to decide if the scale costs are in fact fair and just in the circumstances of the particular costs application before the Court.
[20] The overarching principle in regards to whether it is appropriate to fix costs in the amount prescribed by the GFL Rules is that costs should be set to provide the successful party a fair indemnity for the costs they have incurred in having had to litigate: CIQ17 v MICMSMA (No 2) [2020] FCCA 3467 (Manousaridis J) at [26].
[21] The guidance from the established case authorities as to the (non-exhaustive) factors that may be relevant includes: number and complexity of the grounds; number of interlocutory proceedings and hearing duration; the usual steps involved in a migration matter (see AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 (Given J)); retention of Counsel by one or both parties; length and quality of written submissions and the Court book.
[22] The Court was not asked to do so here but, for completeness, the inability to meet a costs order without more is not sufficient reason to deny a successful party his or her costs: Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 1212.
[23] The event-based scale at Division 1 of Part 2 of Schedule 2 of the GFL Rules is a guide and a relevant benchmark to take into account.
Consideration
The Court has a discretionary power to order costs. I must consider what is fair and just in the circumstances of the case.
The matter was straightforward, with two grounds of review. There were no interlocutory applications. Neither party retained counsel. The Minister’s solicitors compiled the Court Book and prepared submissions that were both useful and proportionate in their length and detail to the grounds of review.
I accept that imposing a costs order on a self-represented litigant is substantial. However, the issue is whether the demand by the successful party is reasonable, rather than the payer’s ability to pay it.
The Minister seeks costs of $5,900. This is less than the event-based scale of costs for final hearings, being $8,371.30. I am satisfied that the sum sought by the Minister is reasonable in the circumstances and not unfairly onerous.
Conclusion
For the above reasons, I will order that the applicant pay the respondent’s costs in the sum of $5,900.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 17 February 2025
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