Fhe20 v Minister for Home Affairs (No 2)

[2021] FedCFamC2G 324

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FHE20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 324

File number(s):

SYG 2936 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

3 December 2021

Catchwords:

MIGRATION – COSTS – Competing costs applications – neutral outcome on the issues litigated – no costs order.

Legislation:

Migration Act 1958 (Cth)

Racial Discrimination Act 1975 (Cth)

Cases cited:

FGS20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 325

Division:

Division 2 General Federal Law

Number of paragraphs:

12

Date of hearing:

3 December 2021

Solicitors for the Applicant:

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 2936 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FHE20

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.There is no order as to costs.

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:

1. I have before me competing applications for costs in relation to my judgment in this matter on 10 August 2021 and in relation to the conduct of the proceedings thereafter.

2. It should be noted at the outset that the only issue resolved by judgment was that contained in my judgment of 10 August 2021 and other issues have not been pursued to finality.

3. I received two affidavits made by the applicant’s instructing solicitors over the objections of the Minister subject to relevance and submissions.

4. I have been assisted by written submissions prepared on behalf of the parties.  I accept from the applicant’s submissions and those of the Minister the general principles applying to the Court’s exercise of its discretionary powers in relation to costs.  I also accept, from the Minister’s submissions, the procedural history of the matter.

5. In FGS20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 325, dealt with immediately before this case, I ordered that the Minister pay 50 per cent of the applicant’s costs, as agreed or assessed, in relation to the issues the subject of my judgment in that case.

6. This case has some similarities in that the same issues were raised, but there are also important differences which need to be noted.  One important difference is that, while in FGS20 I made declarations to resolve a disputed issue of fact, in this case no declaration was required because the issue of fact was not disputed.

7. In both cases, the applicant was unsuccessful in seeking relief for asserted unlawful detention.  The outcome of my judgment on 10 August 2021 was that the parties were directed to mediation.  The mediation was conducted but was unsuccessful.

8. In view of the essentially neutral outcome in that judgment, I am of the view that there should be no costs order.  The costs should lie where they fall.

9. As to the conduct of the proceedings subsequently, several issues were raised.  The first concerned the interaction between the Racial Discrimination Act 1975 (Cth) and the Migration Act 1958 (Cth), which had already been the subject of a judgment by me. The issue was proposed to be pursued, notwithstanding that judgment, in view of the fact that the applicant in this case is said to be stateless. In the applicant’s submission, that was a distinguishing factor. As matters transpired, the issue was not pursued to a judgment because of ministerial intervention. My view is that, while the applicant’s prospects of success on the issue may not have been particularly strong, the distinguishing factor of statelessness was at least arguable.

10. The other issue concerned the applicant’s claim to a non-refoulement assessment prior to being removed to a regional processing centre.  I regard that issue as arguable.  It was not pursued to a judgment because of the Minister’s intervention.

11. It was pressed upon me that I should have regard to the applicant’s distressing circumstances.  I accept that his personal circumstances have been distressing.  It is possible that that was a factor bearing on the mind of the Minister in making a decision to intervene.  That is, however, wholly outside the scope of this proceeding.

12. I conclude that, in the circumstances of this matter, there should be no order as to costs and, hence, I dismiss both the applicant’s and the Minister’s claims for costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       10 January 2021

SCHEDULE OF PARTIES

SYG 2936 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS