ENI18 v Minister for Immigration and Multicultural Affairs (No 2)

[2025] FedCFamC2G 460

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ENI18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 460

File number(s):

SYG 2458 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

21 March 2025

Catchwords:

MIGRATION – Costs – Application for extension of time – where Minister sought scale costs for final hearing event despite matter not proceeding to same

Legislation:

Migration Act 1958 (Cth) s 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Schedule 2, Part 2, Division 1

Cases cited:

CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309

ENI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 405

Division:

General Federal Law

Number of paragraphs:

13

Date of hearing:

21 March 2025

Place:

Sydney

The Applicant:

In person

Solicitor for the Respondents:

Mr Cacaj, Clayton Utz

ORDERS

SYG 2458 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ENI18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	21 MARCH 2025

THE COURT ORDERS THAT:

1.The applicant must pay the first respondent's costs and disbursements of, and incidental to the proceedings, 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 GIVEN:

1. Today the Court delivered reasons for judgment refusing to extend time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act): see ENI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 405. Consequent upon that judgment being delivered, the Minister seeks an order for costs in a fixed amount.

2. The amount sought by the Minister in this case is that which is provided by Schedule 2, Part 2, Division 1, item 3 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) being $8,371.30. 

3. Relevantly, Schedule 2, Part 2, Division 1 of the Rules provides as follows:

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

1. As will be observed, the amount sought today is that for a proceeding concluded at a final hearing.  However, this matter did not conclude at or as a result of a final hearing. 

2. For reasons which I discussed in CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309 at [22] to [33], there is some scope for argument that an extension of time hearing may not be interlocutory. However, unless and until the authorities discussed therein are resolved, the present proceedings having concluded in refusal of an application for extension of time, they should be taken to have concluded as the result of an interlocutory application.

3. The solicitor for the Minister relies on the fact that, when the matter was initially listed for hearing, it was listed for an application for extension of time and, if granted, a final hearing.  The solicitor for the Minister made submissions today to the effect that the Minister had been prepared, on that occasion, had time been extended, to address the matter on a final basis. 

4. By reference to an orders made by the Court on 30 August 2024 and 5 September 2024, the hearing fixture for which the matter was listed contemplated that if, during the extension of time hearing, the Court was satisfied that time should be extended, an order may be made on that occasion pursuant to s 477(2) of the Act and the proceedings would have converted to being a final hearing, or potentially still adjourned to another occasion for such a hearing. However, that did not occur.

5. At hearing on 17 October 2024, the matter proceeded only in respect of the question of whether it was necessary, in the interest of the administration of justice, to extend time. At no time in these proceedings has an order to extend time been made under s 477 of the Act.

6. The Minister could have not been under any misapprehension as to the fact that, by the time the hearing concluded and judgment was reserved, the hearing had remained in respect of the question of extension of time only. 

7. It seems by reference to the Court scale referred to at [3] above, that the appropriate item in the scale is item 2, namely for a proceeding concluded at or before an interlocutory hearing. To the extent that item 2 is expressed as being costs for a matter which concludes "at or before an interlocutory hearing" (emphasis added), I am satisfied that this includes within it proceedings which conclude as the result of an interlocutory hearing.  That is because item 3 also uses the expression of "at a final hearing" (emphasis added) which, properly understood is a reference to being as the result of a final hearing because at final hearing judgment is, more often than not, reserved. 

8. When asked what the applicant wished to say about whether costs should follow the event and, if so, in what amount, he told the Court that he “cannot pay that kind of money”, that he is not presently working and that, if he were granted a visa to which work rights attached, said situation might change.

9. Despite the submissions made at [6] above, there is also no evidence before me to demonstrate that the first respondent has incurred costs (on a party/party basis) in the amount specified for a final hearing.

   CONCLUSION

10. I am satisfied that costs should follow the event.  However, in all the circumstances of this case, I am not satisfied that the appropriate scale amount is the item for a final hearing.  I do not accept the submissions made for the Minister at [6] and will make an order for the reduced amount, being the scale amount for an interlocutory hearing.  That decision is based on an application of the Court's scale and the nature of this hearing, and not on the applicant's submissions that he is impecunious.  It is well established in this Court that the impecuniosity of an applicant is not a sufficient basis to depart from what would otherwise be a proper indemnity of some part of the Minister's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Given.

Associate:

Dated:       31 March 2025