GIO18 v Minister for Immigration and Multicultural Affairs (No 2)

[2025] FedCFamC2G 136

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GIO18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 136

File number(s):

SYG 3402 of 2018

Judgment of:

JUDGE SKAROS

Date of judgment:

7 February 2025

Catchwords:

MIGRATION – costs – application for costs fixed in an amount above scale – fixed costs order made

Legislation:

Federal Circuit and Family Court of Australia Act 2021 ss 214(2), 214(3)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 2.02(2), 22.09, 29.13(1), Sch 2

Cases cited:

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

DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905

Gehlert v Minister for Immigration & Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172

GIO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 93

Division:

Division 2 General Federal Law

Number of paragraphs:

17

Date of hearing:

31 January 2025

Place:

Parramatta

Solicitor for the Applicants:

ABU Legal

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Solicitor for the Second Respondent:

Submitting appearance save as to costs.

ORDERS

SYG 3402 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GIO18

First Applicant

GIP18

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Applicant pay the First Respondent’s costs fixed in the sum of $12,000.

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 SKAROS:

1. Before the Court is an application by the Minister for costs fixed in the amount of $12,000. This follows delivery of judgment on 31 January 2025 in GIO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 93, in which the Court dismissed an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal).

2. The applicants oppose the amount sought by the Minister and that costs ought to be fixed at the ‘scale’ amount.

3. The Court has jurisdiction to award costs in migration proceedings. The award of costs, except as provided for by the Rules of the Court or any other Act, is at the discretion of the Court: ss 214(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021.  

4. Rule 22.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules), provide that in making an order for costs in a proceeding, the Court may:

   (a) set the amount of the costs; or

   (b) set the method by which the costs are to be calculated; or

   (c) refer the costs for taxation under Part 40 of the Federal Court Rules; or

   (d) set a time for payment of the costs, which may be before the proceeding is concluded.

5. Rule 22.09 of the Rules relevantly states:

   22.09   Costs and disbursements

   Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

   (a) costs in accordance with Schedule 2; and

   (b) disbursements properly incurred…

   Note 2: For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.

6. Relevantly, r 29.13(1) of the Rules provides that in relation to a proceeding that is concluded, the Court may order an unsuccessful party to the proceeding pay the costs of the successful party in accordance with Division 1 of Part 2 of Schedule 2.

7. Division 1 Part 2 of Schedule 2 to the Rules provides that the scale amount (including GST) in relation to migration proceedings that have concluded is $8,371.30.

8. The Court has had regard to the scale amount, which has been said to represent, to the extent possible, a standard award of costs for judicial review applications in this Court: DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905 (DZW17). In AYT22 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2023] FedCFamC2G 256 at [7], Judge Given cites DZW17 and sets out the steps normally undertaken by the Minister in a standard migration proceeding, which include:

   (a) the originating application and Affidavit in support;

   (b) preparing a Response and Submitting Appearance;

   (c) sometimes, attendance at a first court date if the matter was initially filed in the Sydney registry (albeit that practice has now changed post-COVID-19);

   (d) preparation of the Court Book;

   (e) a grant of leave to the applicant to amend and consequential requirement for the first respondent to consider same;

   (f) consideration of the applicant’s submissions;

   (g) preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and

   (h) attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere around two hours or two and a half hours).

9. The Court has also considered, in the circumstances of this matter, what is “a fair and just amount to fix for the costs” of the Minister who has been successful in the proceedings: Gehlert v Minister for Immigration & Multicultural Affairs (2024) 305 FCR 172 at [94].

10. In support of their application for costs, the Minister relied upon the affidavit of Matthew Burnham affirmed on 30 January 2025 (the Burnham Affidavit). It details the solicitor-client costs incurred by the Minister in the proceedings, which were estimated as exceeding $12,000 (excluding GST). It states that this amount excludes preparation for and attendance at the judgment delivery on 31 January 2024. These costs are in addition to Counsel fees in the amount of $4,260.64 (excluding GST). Accordingly, the total costs incurred by the Minister were estimated to exceed $16,200.

11. The work undertaken in the matter, as set out in the Burnham Affidavit, for which costs were incurred by the Minister on a party/party basis included the following:

    a)   Perusing the application and accompanying affidavit filed on 6 December 2018;

    b)   Preparing, filing and serving the notice of address for service filed on 12 December 2018;

    c)   Preparing, filing and serving the response filed on 14 December 2018;

    d)   Preparing draft short minutes of order and attending the first court date before Registrar Morgan on 17 January 2019;

    e)   Preparing, filing and serving the Court Book filed on 14 February 2019;

    f)   Preparing draft short minutes of order and attending mention before Registrar Morgan on 13 June 2019;

    g)   Preparing, filing and serving affidavit of Katherine Louise Evans filed on 25 November 2019;

    h)   Preparing for and attendance at callover on 14 November 2023;

    i)    Perusing and responding to emails from Court on 16 October 2024;

    j)    Correspondence with first respondent's Counsel in respect of proceedings;

    k)   Preparing, filing and serving affidavit of James Henry Shaw filed on 20 November 2024;

    l)    Preparing, filing and serving affidavit of Matthew Burnham filed on 20 November 2024;

    m)    Correspondence with applicants' representative regarding proposed adjournment of hearing;

    n)   Perusing applicant's outline of submissions received 27 November 2024 and associated correspondence with first respondent's Counsel;

    o)   Perusing applicants’ amended application filed 29 November 2024 and associated correspondence with first respondent's Counsel;

    p)   Preparing for and instructing first respondent's Counsel at hearing listed on 4 December 2024.

12. On the evidence before it, the Court accepts that the Minister has incurred solicitor/client costs of at least $12,000. It accepts that this is in addition to Counsel’s fees in the amount of $4,260.64.

13. The Court accepts that the work undertaken by the Minister in this matter went beyond those ordinarily performed in a standard migration proceeding before this Court.  This included the Minister having to consider an amended application and submissions, (including liaising with Counsel in that regard), after comprehensive submissions and supporting written evidence had already been filed in response to the grounds advanced in the originating application.

14. The amount sought by the Minister is a total of $12,000. Taking into account Counsel’s fees of $4,260, the remaining amount of $7,740 represents approximately 64.5% of the solicitor/client costs incurred by the Minister.

15. Having regard to the work performed in this matter, the Court does not consider that the scale amount of $8,730.30 would reflect a fair and just level of compensation for the costs incurred by the Minister.

16. Considering the above, the Court accepts that the amount of $12,000 represents a fair and just amount to fix for the Minister's costs in the proceedings.

    CONCLUSION

17. For these reasons, the Court will order costs in this matter to be fixed in the amount of $12,000.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       7 February 2025