GKX18 v Minister for Immigration and Multicultural Affairs (No 2)

In GKX18 v Minister for Immigration and Multicultural Affairs (No 2), the applicant, an Iraqi citizen, sought a review of the refusal of his protection visa application. The case centred on the costs incurred during the proceedings, specifically whether the costs should be awarded on an indemnity basis and whether the costs in this proceeding should be set-off against costs in earlier proceedings. The applicant had previously been granted a Bridging Visa C, which was later cancelled. Despite making multiple applications for a protection visa, the applicant was unsuccessful. The case progressed through various stages, including review by the Administrative Appeals Tribunal and judicial review by the Federal Court.

The court had to decide if the respondents should pay the applicant’s costs on an indemnity basis, considering the circumstances of the case. The applicant argued that the respondents, who were the Minister for Immigration and Multicultural Affairs and the Minister for Home Affairs, failed to comply with their obligations as model litigants. The respondents contended that the model litigant obligations did not affect the award of indemnity costs. The court had to balance the principles outlined in Colgate-Palmolive Company Pty Ltd v Tempo Scan (Australia) Pty Ltd regarding indemnity costs against the specific circumstances of the case.

The court found that the respondents should pay the applicant’s costs up to 20 January 2025 on an indemnity basis because it was grossly unreasonable for them to oppose the habeas corpus application based solely on an inadequate assessment. The court determined that the respondents had acted in "wilful disregard of known facts or clearly established law" and made "allegations which ought never to have been made". The court also ruled that the costs of the costs submissions should be on the ordinary basis, as the respondents did not behave egregiously in relation to those submissions. Finally, the court declined to allow the respondents to set-off costs from earlier proceedings, noting that it was not equitable to do so in this case.

The court ordered that the indemnity costs up to 20 January 2025 be assessed if not agreed, and that the costs of the costs submissions also be assessed if not agreed. The court further ordered that the respondents pay the applicant’s costs of the costs submissions on an ordinary basis.