Fku20 v Minister for Home Affairs
[2022] FedCFamC2G 343
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKU20 v Minister for Home Affairs [2022] FedCFamC2G 343
File numbers: SYG 3053 of 2020
BRG 665 of 2020
SYG 2831 of 2020
SYG 2988 of 2020
SYG 2998 of 2020
SYG 3058 of 2020
SYG 82 of 2021
SYG 158 of 2021
SYG 837 of 2021
SYG 2349 of 2021
SYG 2362 of 2021
SYG 2366 of 2021
SYG 2368 of 2021
SYG 2403 of 2021
SYG 2404 of 2021
SYG 71 of 2022
SYG 75 of 2022
SYG 76 of 2022Judgment of: JUDGE DRIVER Date of judgment: 19 May 2022 Catchwords: MIGRATION – costs – Ministerial intervention rendering proceedings moot – order that there be no order as to costs Legislation: Migration Act 1958 (Cth) Cases cited: FCZ20 v Minister for Home Affairs (No 2) [2022] FedCFamC2G 148
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Division: Division 2 General Federal Law Number of paragraphs: 6 Dates of hearing: 7, 21 March and 6 April 2022 Place: Sydney Solicitor for the Applicants: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr N Wood SC and Mr N Swan Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 3053 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKU20
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
BRG 665 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHH20
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 2831 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDD20
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 2988 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIV20
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 2998 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FJI20
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
SYG3058 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKY20
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 82 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADN21
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 158 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGO21
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 837 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFT21
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 2349 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUK21
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 2362 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUR21
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 2366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUZ21
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 2368 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVD21
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 2403 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYK21
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 2404 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYL21
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 71 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEE22
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 75 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFC22
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 76 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFD22
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:
19 MAY 2022
THE COURT ORDERS THAT:
1.There is no order as to costs in the proceedings.
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:
On 21 March 2022, 6 April and 8 April 2022 I dismissed a number of applications by so called “medevac detainees”. In each case the applicant was a person who had been transferred to either Papua New Guinea or Nauru under provisions of the Migration Act 1958 (Cth) (Migration Act) relating to offshore processing of irregular maritime arrivals. Some of the applications were part heard and some awaited a hearing.
In each case the Minister for Home Affairs intervened in order to grant the applicant a visa (or in some cases a residence determination) which had the consequence that the applicants were released from held immigration detention. The relief sought in the applications changed over time as the case law developed concerning the detention of medevac detainees in Australia while in this country for a temporary purpose. It was always, however, apparent that a primary objective of each applicant was to be released from held detention into the community. It was also apparent over time that the legal arguments available to each applicant were narrowing as the case law developed.
The difficulties confronting applicants in this cohort became even more apparent following the judgment of the Full Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20.[1] I have myself dealt with a range of issues in a series of judgments over the course of the past two years, most recently and relevantly in FCZ20 v Minister for Home Affairs.[2]
[1] [2022] FCAFC 52
[2] [2022] FedCFamC2G 15
In FCZ20 v Minister for Home Affairs (No 2)[3] I dealt with the issue of costs following dismissal of the applications following Ministerial interventions in eight matters.
[3] [2022] FedCFamC2G 148
In the matters dealt with in this judgment, the issue of costs was likewise reserved. The question of costs was only very lightly addressed on behalf of the parties, probably because the issue of costs in these cases is indistinguishable from the issue of costs in FCZ20. In that case I ordered that there be no order as to costs.
In my view, the same order is appropriate in these cases. Indeed, the conclusion that there should be no costs awarded is if anything stronger in these cases where no substantive judgment has been delivered and the dismissal of these cases is the consequence of Ministerial intervention, rather than a consequence of a failure of the applicants’ claims. Further, while the arguments available to medevac applicants have progressively narrowed with the development of jurisprudence affecting their cases, they have not yet been exhausted. Four matters remain in my docket for hearing and judgment. Those matters were in the process of being heard (or prepared for hearing) concurrently with the matters the subject of this judgment on costs. The continuing cases have not been dismissed because the particular applicants remain exposed to removal to an offshore processing country. The applicants seek to resist that outcome and obtain orders to prevent it. It is not appropriate in this judgment to canvass the arguments but it is sufficient to note that existing court authorities do not foreclose all possible arguments on behalf of the remaining applicants.
I certify that the preceding seven (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 May 2022
SCHEDULE OF PARTIES
SYG 3053 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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