FGS20 v Minister for Home Affairs (No 2)
[2021] FedCFamC2G 325
•3 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FGS20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 325
File number(s): SYG 2917 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 3 December 2021 Catchwords: COSTS - competing costs applications – prolonged proceedings – mixed success by both parties – limited costs order Legislation: Migration Act 1958 (Cth) Cases cited: AOU21 v Minister for Home Affairs [2021] FCAFC 60 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of hearing: 3 December 2021 Solicitors for the Applicant: Ms N Harendran, with Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 2917 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FGS20
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:
3 DECEMBER 2021
INTERLOCUTORY ORDERS:
1.The respondents are to pay 50% of the applicant’s costs and disbursements of and incidental to the proceedings, culminating in judgment on 3 August 2021.
2.There is to be no order as to costs in relation to any proceeding subsequent to judgment on 3 August 2021.
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 DRIVER:
I have before me competing applications for costs orders in this matter. The application made by the applicant is supported by two affidavits made by solicitors who have represented the applicant at various times in the proceedings. Those affidavits have been objected to, and I receive them over the Minister’s objection. The parties also filed helpful submissions relating to the issue of costs. I accept the parties’ submissions relating to the general principles to be applied, and I accept the submissions of the Minister detailing the procedural history of the matter. The first and, in my view, substantial question is what, if any, costs order should be made in respect of the judgment I delivered on 3 August 2021.
As is noted in that judgment, the case raised issues somewhat similar to those dealt with by the Full Federal Court in AOU21 v Minister for Home Affairs.[1] In addition, I made declarations similar to those made by the Full Federal Court and, like the Full Federal Court, directed the parties to mediation in order to deal with particular questions at some variance to those addressed in AOU21. The mediation was conducted but was not successful. The applicant concedes that he was only partially successful in my judgment. To the extent that he sought an outcome that his detention was found to be unlawful, he failed. To the extent, however, that he sought clarification of an obligation to remove or return him as soon as reasonably practicable to a regional processing centre, he was successful.
[1] AOU21 v Minister for Home Affairs [2021] FCAFC 60
It is true that the Minister did not dispute an obligation to remove although there was a disagreement as to the source of that obligation. The Minister saw it as coming from requests by the applicant to be returned to a regional processing centre and provided evidence of the steps taken to attempt to give effect to those requests. I found, however, that those requests had, in effect, been superseded by the cessation of a need for the applicant to remain in Australia which gave rise to an obligation to remove under different provisions of the Migration Act 1958 (Cth). Having regard to the costs outcome in AOU21, it is understandable that the applicant seeks an order for costs in essentially the same terms.
The Minister, however, resists costs, pointing to differences between this case and AOU21 and also by reference to the manner in which the proceeding was conducted. There is some force in the Minister’s submissions in the latter regard. The proceedings were characterised by the filing of many documents, sometimes without leave, sometimes very shortly before a hearing and sometimes with unclear connection to the issues to be resolved. It is, in my view, likely that the manner in which the case was conducted on behalf of the applicant increased the costs for the Minister. That should be reflected in a costs order. I do not accept the Minister’s submission that the Minister was successful in my judgment and that costs should follow that event. As I have indicated, success was mixed. Given the somewhat close similarity to the outcome in the Full Federal Court in AOU21, in my view, a costs outcome in favour of the applicant is called for although not to the extent granted by the Full Federal Court and sought in this case by the applicant.
I will order that the respondents are to pay 50% of the applicant’s costs and disbursements of and incidental to the proceedings, culminating in judgment on 3 August 2021.
The remaining question is what, if any, order should be made in respect of the proceedings after 3 August 2021. In my view, there should be no order as to costs of the mediation. Both parties were directed to mediation. They participated in it, but there was no successful outcome. In those circumstances, the costs should lie where they fall. There were further proceedings in relation to other issues following the mediation. One of those issues was an attempt by the applicant to secure transport of family members from Kabul to Australia at the time of the Taliban takeover. No costs are sought by the Minister in relation to that proceeding. While the applicant seeks costs of proceedings after 3 August, I do not think any order is called for. The Kabul evacuation issue was only resolved in a negative sense in that it became impracticable to attempt any rescue.
Another issue arose concerning an outbreak of COVID-19 at the Park Hotel in Melbourne where FGS20 was being detained. Again, that proceeding was not resolved. I determined that, in view of proceedings being conducted in the Federal Court, that Court was the more appropriate forum. Both of those proceedings were conducted in an atmosphere of crisis which is understandable, and, again, the costs should lie where they fall.
The remaining issue concerns the applicant’s claim for a non-refoulement assessment prior to any removal to a regional processing centre. That was listed for a hearing but has not been heard and determined in this case because of ministerial intervention to release the applicant from detention. That has eliminated, at least for the time being, a need for the Minister to consider a non-refoulement assessment. The outcome of that proceeding is hypothetical.
There will, in the circumstances, be no order as to costs in respect of any proceeding subsequent to my judgment on 3 August 2021.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 10 January 2022
SCHEDULE OF PARTIES
SYG 2917 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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