DGW22 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 406
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGW22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 406
File number(s): SYG 1432 of 2022 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 20 March 2025 Catchwords: MIGRATION – reasons for judgment delivered ex tempore – extension of time – 361 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 66, 477, 494B(5) and 494C(5)
Migration Regulations 1994 (Cth) subreg 4.31(2)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
BUH23 v Minister for Immigration & Multicultural Affairs [2024] FedCFamC2G 995
CJG22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1087
Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612
DWK17 v Minister for Home Affairs [2019] FCA 66
Jess v Scott (1986) 12 FCR 187
Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
Northern Territory v Sangare [2019] HCA 25 at [35]; (2019) 265 CLR 164
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 20 March 2025 Place: Sydney Applicant In Person Solicitor for the Respondents: Ms C Warren of Sparke Helmore Lawyers ORDERS
SYG 1432 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGW22
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’.
3.The application filed on 30 September 2022 is dismissed.
4.The applicant pay the first respondent's costs, of and incidental to the application, fixed in the sum of $4,189.38.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 August 2021.
By that decision, the Tribunal found it did not have jurisdiction to review a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 30 September 2022 (originating application), 361 days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND
The background of the matter was helpfully outlined in the Minister’s written submissions filed on 5 March 2025, which I largely adopt.
The applicant is a male national of the People’s Republic of China, who arrived in Australia on 28 June 2017 as the holder of a Visitor (Subclass 600) visa.[1]
[1] Court Book (CB) 8.
Protection visa application
On 1 September 2017, he applied for the protection visa.[2] He claimed to fear harm because he did not have the ability to pay back money he had borrowed and gang members were threatening to harm and kill him.[3]
[2] CB 1 to 20.
[3] CB 11 to 12.
On 5 October 2019, the applicant submitted a ‘Change of Email Address Details’ form and nominated an email address (nominated email address) for the purpose of receiving correspondence.[4]
[4] CB 28.
On 31 May 2021, a delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.[5] The applicant was notified of the delegate’s decision that same day, by way of email dispatched to his nominated email address.[6]
[5] CB 36 to 44.
[6] CB 45 to 46; Affidavit of Carly Maree Warren affirmed 5 March 2025 (Affidavit) Annexure CW1.
Review application
On 21 July 2021, the applicant applied to the Tribunal for review of the delegate’s decision.[7] That review application was given the file number 2109267.
[7] CB 50 to 61.
On 22 July 2021, the Tribunal invited the applicant to comment on the validity of his review application numbered 2109267, as it appeared it was made outside the prescribed timeframe for seeking review.[8]
[8] CB 63 to 64.
On 27 July 2021, the applicant purported to make a further application to the Tribunal for review of the delegate’s decision.[9] This application was given the file number 2109515.
[9] CB 65 to 69.
On 3 August 2021, the Tribunal invited the applicant to comment on the validity of this second review application, numbered 2109515, as it appeared it was made outside the prescribed timeframe for seeking review.[10]
[10] CB 75 to 76.
On 30 August 2021, the Tribunal determined it did not have jurisdiction in respect of either of the applications for review made by the applicant.[11] On that same day, the applicant was notified of both decisions by way of email dispatched to his email address.[12]
[11] CB 83 to 84; 87 to 88.
[12] CB 81; 85.
Tribunal’s decision
The Minister notes that the applicant has annexed the Tribunal’s decision in application numbered 2109515 to his affidavit in support of his application for judicial review. In those circumstances, it is apparent that the applicant seeks review of that decision, such that that is the decision to which the following summary relates.
By way of that decision dated 30 August 2021, sent to the applicant that day by email under cover of a letter of same date, the Tribunal:
(a)found that the applicant was effectively notified of the delegate’s decision in accordance with the statutory requirements on 31 May 2021;[13]
(b)observed that because the applicant was not in detention on the day he was notified of the delegate’s decision, an application for review had to be made within 28 days, commencing on the day of notification;[14]
(c)determined, in accordance with s 494C of the Act and subreg 4.31(2) of the Regulations, the prescribed period to apply for review ended on 27 June 2021;[15] and
(d)concluded that as the review application was not received until 27 July 2021, it was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.[16]
[13] CB 88 at [3].
[14] CB 88 at [2].
[15] CB 88 at [5].
[16] CB 88 at [6].
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order
At the date of notification of the delegate’s decision, section 66 of the Act relevantly read as follows:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed by application under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Section 494B(5) of the Act provides for the method by which the Minister gives documents to a person by way of email transmission. At the date of notification of the delegate’s decision, it relevantly read as follows:
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
…
(b) email;…
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents…
Section 494C(5) provides for when a person is taken to have received a document from the Minister which has been transmitted by email. At the date of notification of the delegate’s decision, it read as follows:
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of the originating application filed on 30 September 2022. As stated above, that application was accompanied by an affidavit attached to which was a copy of the Tribunal’s decision in the application numbered 2109515.
As the Tribunal’s decision was dated 30 August 2021, the applicant had until 4 October 2021 to bring this proceeding. Because the application was not filed until 30 September 2022, it was brought 361 days out of time.
CONSIDERATION
The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant sought leave of the Court to grant him an extension of time, relying on his affidavit in support of his claim. In his originating application, the applicant stated that:
1.The reason is that I did not get assistance in time to lodge my appeal properly.
2.My review application was not handled fairly.
The applicant’s affidavit filed with his originating application also contained a number of statements, only one of which I understand seeks to address this limb. That statement reads:
5. The reason I delayed to appeal to the court is that I did not get assistance in time to lodge application.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) of the Act allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
The extent of the delay and explanation for it
As stated above, the applicant’s delay in filing his judicial review application amounts to 361 days out of time.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) per Wigney J at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
The Minister submits, and I agree, the delay of 361 days is extreme.
The applicant submits that the reason for his delay is because he ‘did not get assistance in time to lodge’ his application to the Court. At hearing before me, the applicant submitted that he was working on a remote farm in a regional area of Australia, and during the time he was working on the farm, his mobile phone had no reception which impacted his ability to receive emails and potentially communicate with people who might be able to assist him. He submitted that he wants to work in Australia for a longer time and has always followed the legal requirements during his time in Australia.
The applicant’s failure to obtain assistance or legal advice in a timely manner is not a reasonable or satisfactory explanation for such an extreme delay in making the application: see DWK17 v Minister for Home Affairs [2019] FCA 66 at [11].
Having considered the parties’ submissions and the available evidence, I am of the view that, given the lengthy delay, the applicant has not offered a satisfactory explanation for his delay in making this application. It is the applicant’s responsibility to ensure that he keep abreast of the progress of his applications made to the Department and the Tribunal, including by way of maintaining proper communication channels and, should he wish, engaging the assistance of others to support him during that process. Accordingly, in the absence of a satisfactory and acceptable explanation, this delay weighs against the grant of an extension of time.
Prejudice
The Minister concedes he would not suffer substantial prejudice if the extension were to be granted. However, the Minister submits that the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. I consider this factor neutral regarding the grant of an extension of time.
Impact on the applicant
If the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for the applicant in relation to his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
While the applicant submitted that there may be adverse impact arising out of his inability to continue working in Australia, it is my view that the impact on the applicant is significant in that he would be removed from Australia, and be returned to his country of nationality where he has claimed he will be harmed. On that basis, I consider this to be a matter weighing in favour of the grant of an extension of time.
Interests of the public at large
The applicant also submits that in his area of employment, construction, there is a shortage of workers in Australia. He submits that if the application was granted he would continue to work in this field and make a contribution, and continue to live his life in accordance with Australian laws.
The Minister submits that there is a public interest in the finality of administrative decision making, particularly given the statutory timeframe in which to seek review, and that the present case does not offer any ‘exceptional’ circumstances and the proposed grounds lack merit which would justify an extension of time being granted: see Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42 at [3]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30].
I accept the applicant’s contribution to the Australian community through his work in the construction industry, but find the Minister’s submissions to be far more persuasive on this issue. I agree that any delay caused by the extension of time would undermine the public interest in the finality of decision making, which causes ‘some prejudice’ to the public at large: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J. I consider this factor weighs somewhat against the granting of an extension of time.
Merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted: see MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.
The applicant raises the following three grounds of review (reproduced without alteration):
1. AAT did not check if the Department’s notification was sent out to my email box. It is possible that the notification did not go into my email box due to technical reason. If it is the case, it may not be fair for me to take the responsibility for failure to receive that notification.
2. AAT did not show me how the Department sent its notification and if its email was returned. If the Department’s notification was returned due to its mistake, how could I receive it?
3. AAT did not consider the possible mistakes made by the Department before it made decision in favour of the Department. So my review application was not handled fairly.
At hearing, the applicant told the Court that the reason he did not apply to the Court on time is because he was working remotely and had no reception on his mobile phone. In relation to his grounds of review, the applicant further clarified that because he was working and living in an area outside of mobile phone reception, he did not have the ability to contact people to assist him. Otherwise, the applicant stated he did not wish to further elaborate on his grounds.
Grounds 1 and 2
By grounds 1 and 2, the applicant disputes that he was validly notified of the delegate’s decision. The notification letter was in similar terms to the notification letter recently considered by this Court in Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612 (Daksh). The letter stated that application forms could be lodged by a number of different means including, amongst other things, by email to ‘[email protected]’. This was a non-functioning email address.
I asked the applicant at hearing whether he had attempted to apply to the Tribunal by any means other than the way in which he lodged his two applications to the Tribunal as outlined above. The applicant told the Court that he did not attempt to make any other applications to the Tribunal.
Accordingly, the Minister submits, and I accept, that the notification letter did not fail to comply with s 66(2)(d)(iv), or in the alternative, if there was non-compliance with s 66(2)(d)(iv), as it did not deprive the notification of all effectiveness or validity: see Daksh at [31]-[39]; BUH23 v Minister for Immigration & Multicultural Affairs [2024] FedCFamC2G 995 and CJG22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1087 at [26]-[27]. Accordingly, no reasonably arguable jurisdictional error arises on this basis.
Furthermore, in terms of the validity of the notification, the Minister submits that the Tribunal was correct to reach the conclusion that the applicant had been validly notified of the delegate’s decision and that his review application was filed out of time for the following reasons.
First, the delegate’s decision was emailed to the applicant’s nominated email address in accordance with s 494B(5) of the Act, which permitted the Minister to give documents by email to the last known email address provided to the Minister for the purposes of receiving documents: see s 494B(5)(b) and (d). By way of the operation of ss 494B(5)(b) and 494C(5), the applicant was taken to have received the delegate’s decision on 31 May 2021, the day it was emailed to him. As the applicant was deemed to have received the delegate’s decision, and therefore have been notified of it, there was no obligation on the Tribunal to demonstrate that the applicant actually received it: see Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [17]-[19].
Second, by operation of s 412(1)(b) of the Act and subreg 4.31(2) of the Regulations, an application for review of the delegate’s decision could only be lodged within a period of 28 days, commencing on the day the applicant was notified of that decision. As the applicant was notified of the delegate’s decision on 31 May 2021, the relevant period ended on 27 June 2021. As neither review application to the Tribunal was made within that period, that is before 27 June 2021, the applicant was plainly out of time in commencing the review.
I accept the Minister’s submissions and find that no jurisdictional error arises in relation to the validity of the notification.
Ground 3
By ground 3, the applicant contends that the Tribunal did not handle his application fairly as it did not consider possible mistakes made by the Department. It should be noted that the Tribunal, in its decision, did consider whether the applicant had been validly notified of the delegate’s decision. Nevertheless, for the reasons above, the Tribunal was correct to find that the applicant was validly notified of the decision and that his review application was filed out of time.
To the extent that the applicant asserts that the Tribunal failed to afford him procedural fairness, the Minister submits, the Tribunal’s procedural fairness obligations under Part 7 of the Act did not apply in circumstances where the Tribunal did not have jurisdiction: see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[38]. The Minister further submits the Tribunal nevertheless provided the applicant with common law procedural fairness when it invited him to comment on the validity of the application by letter dated 3 August 2021, to which the applicant did not meaningfully respond.
I accept the Minster’s submissions in this regard and find that this contention does not give rise to a reasonably arguable basis of jurisdictional error.
I also note that, in his reply, the applicant told the Court that there may have been difficulties with the email address he provided to the Department due to the relationship between Australia and China, which may have frustrated his ability to receive email communications at that address. The difficulty with the applicant’s contention is that this email address was provided to the Department by the applicant. Accordingly, the Department made no mistake in using this email address and, by way of the operation of applicable legislation, the applicant is taken to have received the notification letter: see s 494C(5) of the Act.
Given the foregoing analysis, I conclude the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case was filed with this Court 361 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the application and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
COSTS
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $4,189.38. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions and preparing for, and appearance at, the hearing.
Whilst I acknowledge the applicant’s submission that he may have difficulty paying such an amount, the applicant’s financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare [2019] HCA 25 at [35]; (2019) 265 CLR 164 at [176]-[177] (Sangare) per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ, as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
Accordingly, I will so order that the Minister’s costs be paid by the applicant fixed in the sum of $4,189.38.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 21 March 2025
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