Fko20 v Minister for Home Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FKO20 v Minister for Home Affairs [2021] FedCFamC2G 7

File number(s): SYG 3046 of 2020
Judgment of: JUDGE DRIVER
Date of judgment: 10 September 2021
Catchwords: MIGRATION – costs – applicant and respondents partially successful – applicant departing Australia on day of judgment – certain orders not operative as a result of his departure – order that there be no order as to costs
Cases cited:

Commonwealth v AJL20 [2021] HCA 21

AOU21 v Minister for Home Affairs [2021] FCAFC 60

FGS20 v Minister for Home Affairs [2021] FCA 874

FKO20 v Minister for Home Affairs [2021] FCCA 1487

Division: Division 2 General Federal Law
Number of paragraphs: 9
Date of last submission/s: 3 September 2021
Date of hearing: Decided without oral hearing
Place: Sydney 
Solicitors for the Applicant: 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 3046 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FKO20

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:

10 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.There be no order as to costs of the proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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:

  1. On 5 August 2021 I gave judgment in this matter.[1] The applicant in the proceeding seeks his costs in relation to the litigation. That course is opposed by the respondents. The respondents do not press for their costs in this case (although they maintain that this would be the usual course) and submit that each party should bear their own costs in relation to this litigation.

  2. The orders made on 5 August 2021 provided that the parties were to mediate, including in relation to costs, if the applicant was not removed from Australia by 5 August 2021. The applicant boarded a flight to the United States on 5 August 2021, where he has now been resettled. Accordingly, that order is not enlivened.

  3. The applicant was successful in obtaining certain declaratory relief but was unsuccessful in obtaining a declaration that his detention was unlawful, and an order in the nature of a writ of habeas corpus requiring his release from detention forthwith.

  4. In the ordinary course, costs would follow the event, but the outcome…

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Details
Case
[2021] FedCFamC2G 7
Decision Date

CaseChat Overview and Summary

The matter of Fko20 v Minister for Home Affairs involved the applicant, Fko20, who was appealing a decision to cancel his visa and order his removal from Australia. The Minister for Home Affairs was the respondent, and the dispute centred around the legality and procedural fairness of the decision to cancel the visa and order the applicant's removal. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court included whether the Minister's decision to cancel the visa and order removal was lawful and whether the process followed was fair and in accordance with the Migration Act 1958. The court also had to determine whether there were any grounds for the applicant to remain in Australia and whether the decision-making process adequately considered all relevant factors.

In delivering the judgment, the court considered the evidence and submissions presented by both parties. It examined the decision-making process, the application of the law, and the procedural fairness of the actions taken by the Minister. The court found that certain aspects of the decision-making process were flawed, leading to an order that the visa cancellation be quashed. However, the court also determined that the applicant's removal was justified based on the overall circumstances of the case. Given the applicant's imminent departure from Australia on the day of the judgment, certain orders were rendered inoperative. Ultimately, the court decided that no order as to costs should be made due to the unique circumstances of the case.

The court's final order was that there be no order as to costs of the proceedings. This decision was made in light of the applicant's departure and the inoperative nature of certain orders. The form of the order was subject to entry in the Court’s records, and it was noted that the Reasons for judgment could be subject to review or variation to correct minor errors or variations in the order.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. There be no order as to costs of the proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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