Eke18 v Minister for Home Affairs

[2019] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKE18 v Minister for Home Affairs [2019] FCCA 524   

File number(s):	SYG 2155 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	5 March 2019
Catchwords:	MIGRATION - whether an order for costs against the applicant’s solicitor should be granted – application for costs against solicitor refused
Legislation:	Migration Act 1958 (Cth) ss 486E, 486F
Number of paragraphs:	10
Date of hearing:	5 March 2019
Place:	Sydney
Counsel for Applicants:	Mr J Gormly
Solicitor for the Applicants:	Sydney West Legal and Migration
Counsel for First Respondent:	Ms R Graycar
Solicitor for the First Respondent	Minter Ellison

ORDERS

SYG 2155 of 2018

BETWEEN:

EKE18

First Applicant

EKF18

Second Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

VISA CANCELLATIONS OFFICER – POSITION 60029772

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 March 2019

THE COURT ORDERS THAT:

1.The application under s 486E and s 486F of the Migration Act 1958 (Cth) is dismissed.

2.The first and second applicants pay the first respondent’s costs as taxed or agreed.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application by the first respondent for an order for costs against the lawyer who acted for the applicants pursuant to s 486E of the Migration Act 1958 (Cth) (“The Act”).

2. On 8 November 2018, his Honour Judge Smith delivered a decision in which his Honour refused an application for an extension of time. 

3. His Honour’s reasons addressed the challenge that was advanced in that application, namely the two notices of intention to cancel, which grounds, relevantly, included an allegation of bad faith. His Honour found that the application could not succeed. 

4. His Honour then turned to the issue of whether the notices were migration decisions. This was an issue that his Honour identified at an impressionistic level as one in which the notices could constitute such decisions. 

5. His Honour addressed the merits in relation to the delay in the application for an extension of time and found it was not necessary in the interests of administration of justice to make an order for an extension of time. 

6. His Honour then referred to an application by the Minister for costs against the applicant’s lawyer. His Honour made express reference to the submissions advanced in that regard, acknowledging that the requirements of s 486E (1)(a) and s 486E(1)(b)(i) of the Act might be found to be made out.

7. His Honour correctly identified that the applicant’s solicitor, Mr Taylor, was not represented before the Court and made orders giving Mr Taylor an opportunity to put on submissions in that regard. 

8. Mr Gormly, counsel on behalf of the applicants, put on submissions in that regard as well and also referred to submissions that have been filed by the Minister and an affidavit in respect of the quantum of costs. 

9. Ms Graycar, counsel on behalf of the respondent, indicated that the first respondent only sought an order for costs after there was a merits decision regarding the relevant notices of intention to cancel that was reviewable by the Administrative Appeals Tribunal. 

10. The Court does not regard the proceedings as ones in respect of which the Court should draw the inference invited in respect of the solicitor under s 486E(1)(b)(i) of the Act.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 March 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Dated:       13 May 2021