EOT17 v Minister For Immigration and Anor (No.2)

[2020] FCCA 2342

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOT17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 2342

Catchwords:
PRACTICE AND PROCEDURE – COSTS – Where unmeritorious ground for review included in application for review – no requirement for delegation to be strictly established in each case – application for diminution of costs ordered to be paid by applicant dismissed. 

Legislation:

Migration Act 1958 (Cth), s.473CB(1).

Cases cited:

BLA16 v Minister for Immigration and Border Protection (2018) 338 FLR 194.

Applicant: EOT17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 960 of 2019

Judgment of: Judge Egan

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Brisbane

Delivered on: 19 August 2020

REPRESENTATION

Solicitors for the Applicant: Fisher Dore Lawyers

Solicitors for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The applicant’s application for diminution of the quantum of costs ordered to be paid by the applicant be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 960 of 2019

EOT17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On the question of costs, the first respondent, by Ms Reid, has sought an order that the applicant be ordered to pay costs in the scale amount fixed in the sum of $7,467.00. That application was made because the Amended Application for Review filed on 20 May 2020 was, by order of the Court, dismissed. 

2. This matter had first been listed for final hearing at an earlier time. At that hearing, the applicant persisted with the claim as set out in Ground 1 of the Amended Application for Review. That ground was as follows:

   “Grounds of the Amended Application

   1. The IAA was prevented from lawfully exercising its jurisdiction because the Secretary failed to exercise the power required to be exercised by him or her by s. 473CB(1) of the Migration Act.

   Particulars

   (a) That power was purportedly exercised by a person other than the Secretary.

   (b) The person who purported to exercise the power under s. 473CB(1) of the Migration Act was not a delegate or duly authorised officer of the Secretary.”

3. Because Ground 1 could have been fatal to the first respondent’s defence of the applicant’s claims, the Court was minded to adjourn the matter such that the first respondent was able to clarify the position as to whether the person who was actually responsible for the provisions of section 473CB(1) of the Migration Act 1958 (Cth)(‘the Act’) being complied with, was duly delegated or not. Subsequently, an affidavit of Ms Reid was filed on 16 June 2020. That affidavit clarified the position of delegation by the departmental officer responsible for, inter alia, the compilation of documentation, and the listing of documentation, in what is colloquially referred to as the “checklist” material forwarded by the Department to the Authority. 

4. Upon production of the documentation which established due delegation, the applicant’s Counsel indicated that he would no longer be seeking to press Ground 1 of the Amended Application for Review. Notwithstanding the withdrawal of such claim, the applicant has submitted that any costs ordered to be paid by the applicant in the event of the Amended Application for Review being dismissed, ought to be reduced having regard to the costs which have been incurred associated with the adjournment of the original hearing, as well as work undertaken on behalf of the applicant relating to a consideration of whether there had, or had not been, a proper delegation for the purposes of section 473CB of the Act.

5. During the course of the hearing, the Court asked Ms White, who appeared on behalf of the applicant, to indicate whether there was anything in particular in any of the material before the Court which would have given rise to a reasonable suspicion that there had been somehow either a lack of delegation, or some inadequacies in any delegation, in respect of any departmental officer for the purposes of section 473CB of the Act. Ms White took the Court to pages 168 – 176 of the Court Book. When reading such pages, the Court could not identify that there was anything untoward in any of the documentation referred to by Ms White so as to give rise to any suspicion that there might have been any lack of due delegation. Ms White submitted, rather, that the very lack of proof of delegation gave rise to such submission. The Court rejects such argument.

6. There are hundreds of cases in the field of migration which weekly come before the Courts. It should be assumed as part of the due processes of government that in respect of administrative matters relating to compliance or non-compliance with sections of the Act – such as section 473CB – that where a person is referred to as being a delegate of the Minister, that that is in fact the case. What Ms White’s submission amounts to is a submission that in each and every case where a delegate of the Minister does something in furtherance of the provisions of the Act, an applicant should be provided with evidence that such person was duly delegated. Such submission ought to be rejected. As was submitted by Ms Reid, any requirement for that to be done would be overly burdensome and administratively inappropriate.

7. The Court finds that there is no warrant for the assertion that extra costs were incurred by reason of some failure on the part of the first respondent to establish that the appropriate case officer was duly delegated or not. There is some supporting authority for that proposition. [1]

   [1]        BLA16 v Minister for Immigration and Border Protection (2018) 338 FLR 194 per Judge

8. The first respondent has sought costs only in the scale amount. The first respondent might very well have sought its further costs thrown away as a result of the inclusion in the Amended Application of paragraph (1) of such application, which the Court found to be unmeritorious. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date: 25 August 2020

Manousaridis at [22].