Dir19 v Minister for Home Affairs - [2020] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIR19 v MINISTER FOR HOME AFFAIRS & ORS

[2020] FCCA 1223

Catchwords:
MIGRATION – Ruling on costs application.

Legislation:

Migration Act 1958 (Cth), s.417.

Cases cited:

Whittenbury v Vocation Limited(No 2) [2020] FCA 653

Applicant:

DIR19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Third Respondent:

RASHMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093

File Number:

MLG 1785 of 2019

Judgment of:

Judge Burchardt

Hearing date:

Determined on the papers

Date of Last Submission:

15 May 2020

Delivered at:

Dandenong

Delivered on:

21 May 2020

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Winstan Lawyers

Counsel for the Respondents:

Not applicable

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Each party’s application for costs be dismissed.
The costs of the interlocutory proceedings, including the injunction proceedings before His Honour Judge McNab, be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 1785 of 2019

DIR19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Second Respondent

RASHMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093

Third Respondent

REASONS FOR JUDGMENT

Introduction

This is a costs dispute in respect of the matter that the parties agree should be transferred to the Federal Court of Australia. The Federal Court of Australia has indicated that such a transfer is indeed appropriate. The matter has had a checkered history in this Court and has been allocated I think to three or four judges from time to time. In order to understand the way in which the parties have put their competing costs arguments, it is necessary to describe the history of this matter.
On 6 June 2019, the applicant filed an application seeking relief arising from the failure or refusal of the second and third respondents to refer the applicant’s request to the Minister for him to consider exercising his power under section 417 of the Migration Act 1958 (Cth).
On 25 June 2019, the first respondent filed a response seeking that the application be dismissed and asserting that the Court had no jurisdiction to review the delegate’s decision.
On 20 September 2019, the applicant filed an application for interlocutory injunctions to restrain the Minister from removing the applicant from Australia and His Honour Judge McNab made orders granting such relief. His Honour relevantly ordered that costs be reserved.
On 15 November 2019, the first respondent filed an application in a case seeking that the substantive application be summarily dismissed.
That matter eventually found its way from His Honour Judge Blake and Her Honour Judge Mercuri’s lists to my docket on 3 March 2020 when I made orders that the parties file supplementary written submissions relating to the summary dismissal application already referred to, and the oral application for the transfer of the matter to the Federal Court of Australia made at an earlier directions hearing on 2 March 2020.
On 17 April 2020, I made orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1223
Decision Date: 21 May 2020

CaseChat Overview and Summary

The applicant, Dir19, sought an order for costs against the Minister for Home Affairs following the Minister's withdrawal of a decision to refuse Dir19's visa application. The matter came before Judge Burchardt in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether Dir19 was entitled to an order for costs, notwithstanding the Minister's withdrawal of the decision under review. Specifically, the Court had to consider the principles governing costs applications in circumstances where a respondent withdraws a decision after proceedings have commenced, and whether such withdrawal constituted a "win" for the applicant for the purposes of a costs order.

Judge Burchardt reasoned that the Minister's withdrawal of the decision effectively conceded the applicant's case, thereby entitling the applicant to an order for costs. The Court applied the general principle that costs follow the event, and that a respondent who withdraws a decision, thereby rendering the proceedings futile, should generally bear the applicant's costs. The Court noted that while the Minister's withdrawal was not an admission of error, it did mean that the applicant had achieved the outcome they sought through the litigation.

The Court ordered that the Minister pay Dir19's costs of the proceeding.

Orders