FCZ20 v Minister for Home Affairs (No 2)
[2022] FedCFamC2G 148
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCZ20 v Minister for Home Affairs (No 2) [2022] FedCFamC2G 148
File numbers: SYG 2826 of 2020
SYG 2938 of 2020
SYG 2982 of 2020
SYG 2989 of 2020
SYG 23 of 2021
SYG 48 of 2021
SYG 50 of 2021
SYG 52 of 2021Judgment of: JUDGE DRIVER Date of judgment: 21 March 2022 Catchwords: MIGRATION - costs – proceedings rendered moot following the trial but before judgment – reasons given were obiter – ongoing proceedings in other matters – no order as to costs Cases cited: ADM21 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 323
AOR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 958
Director General, Dept of Education and Training v MT (No 2) [2006] NSWCA 320
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
FDT20 v Minister for Home Affairs [2021] FCCA 711
FDT20 v Minister for Home Affairs [2021] FCA 1484
Kazar v Kargarian [2011] FCAFC 136
Lawindi, in the matter of Elkateb v Elkateb [2001] FCA 1527
Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 2) [2009] VSC 174
Microsoft Corporation v Marks (No 2) (1996) 69 FCR 144
Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27
Re Bonnie View Petroleum Pty Ltd (in liq) [2018] VSC 489
Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664
Division: Division 2 General Federal Law Number of paragraphs: 16 Dates of hearing: Decided without oral hearing Date of last submissions: 22 February 2022 Solicitor for the Applicants: Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration Counsel for the Respondents: Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 2826 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCZ20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 2938 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHF20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 2982 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIO20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 2989 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIZ20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 23 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABG21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 48 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACB21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 50 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACC21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACE21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
21 MARCH 2022
ORDERS:
1.There is no order as to costs in the proceedings the subject of judgment in FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15.
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).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
On 28 January 2022 I delivered judgment in eight matters comprising the principal proceedings in this case: FCZ20 v Minister for Home Affairs.[1] In each of the cases, the application was dismissed. I found at [6] that the issue to be determined (namely, the availability of a writ of mandamus to compel a non-refoulement assessment prior to returning the applicants to a regional processing country) was moot following ministerial intervention. I nevertheless delivered reasons explaining why mandamus was unavailable.
[1] [2022] FedCFamC2G 15
The proceedings had been the subject of extensive submissions and argument. The procedural history of the matters was complex.
In view of the outcome, the respondents seek an order for costs. That is opposed by the applicants.
I invited submissions on costs. Those of the respondents were filed on 22 February 2022. The applicants sought additional time but nothing was filed.
The respondents’ claim for a costs order is based upon the following propositions.
It is uncontroversial that costs should generally follow the event. This was the approach taken in similar cases including FDT20 v Minister for Home Affairs[2] (costs awarded to the respondents following delivery of the judgment), and by Griffiths J in the recent appeal in FDT20 v Minister for Home Affairs.[3] In AOR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] I ordered costs after noting at [3] that a cohort of cases before the Court appeared intended to achieve several purposes, including “issues of policy. The Court in its adversarial jurisdiction is not the proper place for those issues of policy to be debated”.
[2] [2021] FCCA 711
[3] [2021] FCA 1484
[4] [2021] FCCA 958
As indicated in G E Dal Pont’s Law of Costs (4th ed), there are important reasons why costs follow the event and few circumstances justify depriving a successful party of costs (see particularly [8.26]ff). In Microsoft Corporation v Marks (No 2),[5] Lindgren J (with whom Beaumont and Lehane JJ agreed) held at 146 that a submission that the fact counsel had appeared on a pro bono contingency fee basis was relevant to a costs determination “should not be accepted… it lies in the hands of government, not the courts, to address the problem of impecunious litigants”.[6] In Director General, Dept of Education and Training v MT (No 2),[7] Spigelman CJ (with whom Ipp JA agreed, Hunt AJA agreeing in short separate reasons) noted at [18] that: “there is no principle that the costs discretion will be exercised in such a way as to ensure that orders are not made against persons who are not in as good a position to bear the legal costs as the party in whose favour they are made”.
[5] (1996) 69 FCR 144
[6] See also Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [16] (per Kenny, Edmonds and Rangiah JJ)
[7] [2006] NSWCA 320
It is well established that a court may award costs where an underlying dispute is rendered moot, even where a decision is not delivered. Where proceedings were well advanced, a court may be able to form a considered view as to the merits of the underlying application (as has occurred in the present case, in which the Court proceeded to deliver a judgment, albeit in obiter).
In Yates Property Corporation Pty Ltd v Boland,[8] Goldberg J formed a view of the merits because, by the time that parallel proceedings had attained judgment with the result that the Federal Court proceedings were obviated, all relevant matters had been fully argued in the latter court, and his Honour was well-advanced in the preparation of his reasons for judgment.[9]
[8] (2000) 179 ALR 664
[9] See also, for example: Lawindi, in the matter of Elkateb v Elkateb [2001] FCA 1527 at [7]; Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 2) [2009] VSC 174 at [16]; Re Bonnie View Petroleum Pty Ltd (in liq) [2018] VSC 489
In Re Bonnie View, Randall AsJ observed at [52]:
[M]ost of the authorities above considered the applicable principles within the context of where the relevant supervening events occurred prior to there being a trial on the merits. Where … the relevant supervening event occurs after a trial on the merits, with full argument and submissions from the parties, but before the decision is handed down, the merits of those arguments will hold greater weight in the Court’s decision whether to make an order in respect of the costs of the proceeding. The merits of a fully argued case will be a strong factor in determining whether, notwithstanding the proceedings becoming inutile due to some supervening event, ‘there is some circumstances that justifies a costs order in order to do justice between the parties’.
In the present case, as above, proceedings were completed and the Court has delivered a judgment.
CONSIDERATION
As explained in Dal Pont’s Law of Costs the Court’s discretion in relation to costs is very broad; but must be exercised judicially. There is no entitlement to a costs order.[10] I accept that the respondents were “successful on the merits” in each of the eight applications in as much as the applications were dismissed. As I observed, however, in my principal judgment, the dispute between the parties was rendered moot following ministerial intervention and the granting of visas to each of the applicants. In a sense, both sides got what they wanted. The respondents had the benefit of the dismissal of the applications and the applicants were granted visas which enabled them to be released from immigration detention, as well as providing a favourable outcome, at least for the time being, in relation to return to a regional processing country. Some analogy may be drawn with the decision of McHugh J in Minister for Immigration and Ethnic Affairs; ex parte Lai Qin.[11] Some analogy may also be drawn with my own decision in ADM21 v Minister for Home Affairs (No 2).[12]
[10] Kazar v Kargarian [2011] FCAFC 136
[11] (1997) 186 CLR 622 at 624
[12] [2021] FedCFamC2G 323
The issue of whether mandamus is available to compel the consideration of non-refoulement claims prior to the taking of persons to a regional processing country, or prior to their return to a regional processing country, has not been settled. My reasons in FCZ20 were obiter, as I made clear at [7] of my principal judgment.
There are a significant number of other cases in the course of being heard in which the same issue is raised, namely whether mandamus lies to compel the consideration of non-refoulement claims in relation to a regional processing country. For the purposes of those cases, my judgment in FCZ20 was intended to provide the parties in the remaining cases with some judicial guidance. That judgment, however, does not close off further argument and, as has since become apparent, further argument is being made, but on a broader view of relevant provisions of the Migration Act 1958 (Cth). Nevertheless, the judgment was intended to assist in refining the issues in other related cases yet to be heard.
It follows, in my view, that no costs order should be made in respect of my judgment in FCZ20. The purpose of that judgment was to provide guidance to the parties in an ongoing and broader dispute. With the benefit of that guidance, the parties can address the remaining issues on the questions to be resolved with greater clarity.
CONCLUSION
I conclude that no costs order should be made. I will order that there be no order as to costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 21 March 2022
SCHEDULE OF PARTIES
SYG 2826 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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