FKE17 v Minister for Immigration and Border Protection (No 2)

[2024] FedCFamC2G 458

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FKE17 v Minister for Immigration and Border Protection (No 2) [2024] FedCFamC2G 458

File number(s):

MLG 2706 of 2017

Judgment of:

JUDGE CHAMPION

Date of judgment:

23 May 2024

Catchwords:

MIGRATION – Judicial review – Costs – Applicant successful party – Costs awarded to the Applicant as the successful party – Costs fixed in accordance with Schedule 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 a fair indemnity for the successful party

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 214

Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) rr. 22.09, 29.13   

Cases cited:

CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467

FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433

FKE17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 329

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of last submission/s:

17 May 2024

Date of hearing:

On the papers

Place:

Melbourne

Solicitor for the Applicant:

Ambi Associates

Solicitor for the First Respondent:

Australian Government Solicitor

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2706 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FKE17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	23 MAY 2024

THE COURT ORDERS THAT:

1.The First Respondent pay the Applicant’s costs of the proceeding fixed in the amount of $8,371.30.

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 CHAMPION:

1. On 17 April 2024 I published reasons for judgment in FKE17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 329 (Primary Judgment; PJ). This judgment as to costs should be read together with the Primary Judgment. Among other orders,  I issued a writ of mandamus directed to the Immigration Assessment Authority requiring it to determine the Applicant’s application according to law. The Applicant was therefore the successful party.

2. Before I reserved judgment, the First Respondent submitted that he wished to be heard on costs. As a result, by way of orders made at the time of the publication of the Primary Judgment, I made directions timetabling cost submissions (PJ, [148]–[151]).

3. Each party filed a written outline as to costs and the Applicant also filed written submissions in reply. No party indicated they wished to be heard orally on the question of costs and, as a result, and as foreshadowed in the primary judgment (PJ, [150]), I will determine the question of costs on the papers.

4. The Applicant sought his costs be fixed in the amount of $12,500. He noted (accurately) that the court has a discretion to order costs in accordance with the General Federal Law scale: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr, 22.09 and 29.13(3), Sch. 2, Part 1.

5. The First Respondent submitted that the court should award costs to the Applicant, fixed the amount of $8,371.30 in line with the scale set out in Schedule 2, Part 2, Item 3 of the Rules.

6. The court has jurisdiction and a discretion to award costs (Federal Circuitand Family Court of Australia Act 2021, ss. 214(2) and (3)). I must consider “whether there is a party in whose favour in award should be made and then the appropriate mechanism by which the quantum of that award should be calculated” (FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433, [28]). There is an important principle that, subject to certain limited exceptions, a successful party in the litigation is entitled to an award of costs in his or her favour (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, [67]).

7. In the exercise of my discretion, I note that the Applicant was the successful party and there should be an award of costs in his favour. So much is accepted in the First Respondent’s submissions.

8. The next question is the “appropriate amount to award” (FJS18, [35]). In the recent decision of FJS18, Burley J summarised several options for the award of costs by the court in migration cases all of which arise from the conferral of the general discretion in s. 214(3) of the Act. Burley J held that: “the rules in effect layout a palette of choices for the court and it will depend on the particular circumstances of the case which is the choice most apposite” (FJS18, [44]). It is not necessary for the Applicant to establish a “good reason” to depart from the sale for migration proceedings (FJS18, [23]). Further, like Burley J, I agree with the observations of Judge Manousaridis in CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [26] (approved in FJS18, [44]):

   If there is any overriding principle in relation to the assessment of costs, it is that costs should be set to provide the successful party a fair indemnity for the costs he or she has incurred in having had to litigate.

   [Emphasis added]

9. I do not accept the First Respondent’s submissions that the Applicant’s conduct “unnecessarily protracted the proceedings” so as to engage in disentitling conduct as to costs (Cf. Oshlack, [69]). It is, however, the fact there was a hearing in two parts on 13 December 2023 and 29 February 2024. The Applicant was unsuccessful as to the grounds argued on 13 December 2023 and successful as to the ground argued on 29 February 2024.

10. Costs should be set to provide the Applicant as the successful party with a “fair indemnity” for the costs incurred. In all the circumstances, a fair indemnity as to the quantum of costs is costs in accordance with the scale set out in Sch. 2, Part 2, Item 3 of the Rules for migration proceedings rather than in accordance with the scale for general federal law proceedings. I will fix costs in the amount of $8,371.30.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       23 May 2024