Gehlert v Minister for Immigration and Multicultural Affairs

Gehlert sought judicial review of a decision by the Administrative Appeals Tribunal which upheld the Minister for Immigration and Multicultural Affairs' refusal to grant a Visitor (Class FA) visa. The Federal Circuit and Family Court of Australia (FCFCOA) set aside the AAT decision and ordered that the Minister pay Gehlert's costs. The FCFCOA ordered that the costs were to be assessed and fixed at $3,930. Gehlert applied to have the costs fixed at $6,377, which included the $3,330 filing fee. The Minister argued that the filing fee should not be included in the costs, and that each party should bear their own costs of the costs dispute. The parties agreed that the Court of Appeal should re-exercise the costs discretion if it found error. The Court of Appeal found that the FCFCOA erred in its approach to determining the amount of costs to be awarded. The Court found that the singular amounts set out in Pt 2 of Sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) were intended to be "all in" amounts of costs, potentially including disbursements such as the filing fee. The Court found that the filing fee should be included in the costs and fixed the costs at $6,377. The Minister agreed that if the appeal succeeded, they should pay Gehlert's costs of and incidental to the appeal. The Court of Appeal allowed the appeal, set aside the orders of the FCFCOA, and ordered that the Minister pay Gehlert's costs in the sum of $6,377 together with interest from 29 June 2023, and Gehlert's costs of the appeal as agreed or taxed.