Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs

The case of Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs involves a judicial review application by Mr. Gehlert against the Minister for Immigration, Citizenship and Multicultural Affairs, concerning the costs associated with a migration proceeding. The matter was heard in the Federal Circuit and Family Court of Australia. Mr. Gehlert sought costs exceeding the prescribed Migration Costs Scale, arguing that the substantial increase in the filing fee for migration proceedings warranted higher costs. The central legal issues revolved around whether the substantial increase in the filing fee justified costs beyond those prescribed in the Migration Costs Scale and whether the increase in the filing fee was relevant to the determination of costs.

The Court considered the applicable rules and the statutory framework governing costs in migration proceedings. It noted that the Migration Costs Scale, which was prescribed by Division 1 of Part 2 of Schedule 2 to the General Federal Law Rules 2021, provided for costs in concluded migration proceedings. The Court also examined the historical context of the filing fee increase, which occurred after the Migration Costs Scale was set and had not been subject to consultation as required by the Federal Circuit and Family Court of Australia Act 2021. The Court held that there were no exceptional circumstances justifying costs above the Migration Costs Scale, as the increase in the filing fee did not alter the prescribed costs regime.

In conclusion, the Court found that Mr. Gehlert had not demonstrated that costs above those prescribed in the Migration Costs Scale were warranted. Consequently, the Court ordered that the Minister pay Mr. Gehlert’s costs in the sum of $3,930, as prescribed by the Migration Costs Scale. The Court also directed that each party bear their own costs of and incidental to the costs dispute and amended the name of the Minister to reflect the current title.