GKX18 v Minister for Immigration and Multicultural Affairs (No 3)
[2025] FedCFamC2G 1022
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GKX18 v Minister for Immigration and Multicultural Affairs (No 3) [2025] FedCFamC2G 1022
File number: SYG 2298 of 2024 Judgment of: JUDGE RILEY Date of judgment: 3 July 2025 Catchwords: MIGRATION – Bridging Visa E – costs of challenging condition 8510 attached to visa – Minister conceding it was invalidly imposed – whether indemnity costs appropriate – quantum of costs reasonably incurred. Cases cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 28 IPR 561; (1993) ALR 248; [1993] FCA 801;
Top Plus Pty Ltd v Yi Star Pty Ltd (No 2) [2023] FedCFamC2G 348
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission: 12 March 2025 Date of hearing: 26 February 2025 Place: Melbourne Counsel for the Applicant: Quintin Rares Solicitor for the Applicant: Heretic Law Counsel for the Respondents: Jonathan Barrington Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2298 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GKX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The respondents pay the applicant’s costs of the condition 8510 issue reasonably incurred, on an indemnity basis, fixed in the sum of $16,778.75.
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 RILEY:
INTRODUCTION
This is an application by the applicant for costs in relation to the question of whether condition 8510 was invalidly imposed by the Minister on the applicant’s Bridging Visa E. The respondents conceded, following the receipt of the applicant’s written submissions on the question of the validity of the imposition of condition 8510, that it had been invalidly imposed.
When the costs issue was first addressed during the hearing on 26 February 2025, the applicant sought costs on the ordinary basis fixed in the sum of $30,688. When it was pointed out to counsel for the applicant that that figure bore no relationship with the scale of this court for migration proceedings, the applicant sought costs on an indemnity basis.
Also at the hearing on 26 February 2025, the respondents submitted that the applicant should get costs fixed in the sum of $4,189.39, which is the scale amount for a migration proceeding concluded after the first court date for a hearing but at or before an interlocutory hearing. However, in subsequent written submissions, the respondents conceded that the applicant should get costs fixed in the sum of $13,750.
BACKGROUND
An extensive background to this matter is set out in GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718. However, for present purposes, the key points are that:
(a)the Administrative Appeals Tribunal found that Australia owed the applicant non-refoulement obligations;
(b)following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; (2023) 415 ALR 254; [2023] HCA 37, the applicant filed an application for habeas corpus;
(c)shortly before court commenced on the second day of the habeas corpus hearing, on 16 October 2024, the respondents advised the court and the applicant that he had been given a Bridging Visa E;
(d)a Bridging Visa E allows a person to stay temporarily in Australia while their immigration status is resolved;
(e)it then emerged that the Bridging Visa E was valid for four months, and was subject to condition 8510;
(f)condition 8510 required the applicant to apply for a passport;
(g)the only passport the applicant could apply for was an Iraqi passport;
(h)at the hearing on 16 October 2024, counsel for the applicant expressed considerable consternation about condition 8510, telling the court that:
it’s just not satisfactory … one of the key issues in this matter is that the applicant, by virtue that he is owed non-refoulement obligations, … he cannot engage with the Embassy of Iraq, and to do so would almost be saying, “Well, I’m no longer at risk. I’m happy to go back.”
(i)counsel for the applicant also told the court on 16 October 2024 that she was very concerned that, if the applicant did not apply for an Iraqi passport, he would breach his visa conditions, which would have ramifications for his future immigration position;
(j)counsel for the applicant advised the court on 16 October 2024 that condition 8510 would need to be removed, though she was unsure of the mechanism for achieving that;
(k)subsequently, the applicant filed written submissions saying that the applicant applying for a passport could be interpreted as him accepting the protection of Iraq which would then cause him to lose the benefit of the non-refoulement obligations; and
(l)after receipt of those written submissions, the respondents conceded that condition 8510 was invalidly imposed and conceded that the court should make a declaration to that effect.
MATERIAL RELIED UPON
The applicant relied upon:
(a)the affidavit affirmed by Alison Mary Battisson on 25 February 2025; and
(b)the affidavit affirmed by Alison Mary Battisson on 5 March 2025.
The respondents relied upon:
(a)the transcript of the proceedings on 16 October 2024;
(b)the transcript of the proceedings on 20 January 2025;
(c)the Minister’s submissions filed on 18 February 2025 regarding indemnity costs;
(d)the affidavit affirmed by Alison Mary Battisson on 25 February 2025;
(e)the affidavit affirmed by Alison Mary Battisson on 5 March 2025; and
(f)the Minister’s submissions filed on 12 March 2025 regarding the costs of the condition 8510 issue.
DETAIL OF THE CLAIM
The work for which the applicant’s present costs claim relates was one set of written submissions. They were filed on 3 February 2025 and ran to 17 pages. Some minor amendments were made to them on 5 February 2025. They were signed by two junior counsel.
The applicant’s written submissions canvassed a novel point, namely, the validity of a visa condition and the mechanism by which it could be challenged. The argument put by the applicant, and evidently accepted by the respondents, was that the decision to impose condition 8510 was a migration decision that could be challenged in the usual way on the usual grounds.
The critical points in the submissions were as follows:
13. As will be explained further in Part D of these submissions, the Minister has set up an invidious choice for the applicant.
9.1 Either the applicant applies for an Iraqi passport and by doing so faces the real risk that the respondents will then argue, as was done in Rezaei v MIMA [2001] FCA 1294, that such an engagement is a re-availing with the persecuting country, and thereby risk losing the benefit of the non-refoulment findings, and potentially then risk being sent back to the country the subject of the nonrefoulement findings, something presently the applicant is protected from because of the non-refoulement findings and NZYQ.
9.2 Or, the applicant chooses to not obey the visa condition and risks being breached, with possible detention of some kind for the breach and/or its possible use in the future to deny any application by the applicant for permanent residency or citizenship.
…
20.Based on the above submissions and evidence of Ms Nette, for the applicant to secure a travel document, the applicant needs to complete and sign an application form, provide a handwritten letter requesting assistance to obtain a travel document and return to Iraq, and participate in an interview with the Iraqi embassy.
21. Obtaining a travel document will therefore require the applicant to engage with the Iraqi Government. The applicant cannot engage with the Iraqi Government because this is the government from whom he seeks refuge. Importantly, and relevantly, any engagement with the Iraqi Government for the purposes of obtaining a travel document may constitute voluntary re-availment of protection, see: Rezaei v MIMA [2001] FCA 1294.
22. Further, the UNHCR at paragraph 125 of the Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued in 2019, states:
Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause.
(footnotes omitted)
There was no hearing on the question of the validity of condition 8510. The hearing on 16 October 2024 foreshadowed an application challenging the validity of condition 8510 but dealt with other matters. The hearing on 20 January 2025 covered a number of matters, including some directions in relation to condition 8510. In any event, all of the costs up to and including 20 January 2025 were dealt with in a separate judgment.
At the hearing on 26 February 2025, the parties agreed to a declaration that condition 8510 was invalidly imposed, and dealt with other matters. There was no argument about the validity of condition 8510.
The specific amounts claimed are:
(a)for Mr Rares, a total of $9,937.50 at $795 per hour for:
(i)half of a one hour phone call with his junior and instructing solicitor: $397.50;
(ii)15 minutes perusing an email from his junior and replying: 15 minutes for a phone call: $198.75; and
(iii)11.75 hours drafting submissions: $9,341.25;
(b)for Ms Bridgett, a total of $11,550 at $440 per hour for:
(i)six hours of initial preparation, including legal research: $2,640;
(ii)16.5 hours drafting submissions: $7,260;
(iii)3.75 hours on emails, phone calls, the notice to produce and proposed consent orders: $1,650; and
(c)for Heretic Law, a total of $6,776 at $770 per hour for:
(i)four hours for reviewing and finalising submissions: $3,080;
(ii)2.3 hours for conducting legal research: $1,771;
(iii)one hour conferring with counsel: $770; and
(iv)1.5 hours discussing consent orders: $1,155.
The figures in the previous paragraph were taken from the affidavits affirmed by Ms Battisson. Those figures do not add up to $30,688. They add up to $28,263.50. I take that to be the amount of the claim.
Mr Rares expressly made no claim for legal research, as is entirely appropriate. The amounts claimed by Heretic Law and Ms Bridgett for legal research should also be taken off. Ms Bridgett did not specify exactly how much of her “initial preparation including legal research” was simply legal research. I am inclined to the view that all of the “initial preparation including legal research” was simply legal research. Therefore, $1,771 and $2,640 should be deducted from the sum of $28,263.50. That leaves $23,852.50.
The question then is whether the respondents should pay that sum on an indemnity basis.
AUTHORITIES ON INDEMNITY COSTS
In Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 28 IPR 561; (1993) ALR 248; [1993] FCA 801 at pages 232 to 234 Sheppard J said that:
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1. The problem arises in adversary litigation, ie litigation as between parties at arm’s length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of O 62, rr 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin U in Berry v British Transport Commission (supra) and Handley JA in Cachia v Hanes (supra) on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (supra) at 141 said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (supra) at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at p 6) similar views in Ragata (supra).
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in I-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
The applicant also relied on Top Plus Pty Ltd v Yi Star Pty Ltd (No 2) [2023] FedCFamC2G 348 at [28] where Judge Baird said that:
An order for indemnity costs requires that there be some special or unusual feature. Indemnity costs are not punitive, but are designed to compensate a party fully for costs incurred, as a normal costs order (that is, a party and party order) could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs...
UNREASONABLENESS OF IMPOSING CONDITION 8510
The applicant argued that indemnity costs were warranted in the present case because it was unreasonable of the Minister to impose condition 8510 on the applicant’s Bridging Visa E, and the respondents, by conceding that it was appropriate for the court to declare the condition was not validly imposed, admitted as much. The applicant argued that it followed that indemnity costs were appropriate in this case.
The respondents argued that their conduct was not unreasonable, and they promptly conceded the issue once it had been formally articulated in the applicant’s written submissions.
However, it was unreasonable for the Minister to have imposed condition 8510 in the first place. The decision to impose a condition requiring the applicant to apply for an Iraqi passport seems to have been a tactical ploy to make it impossible for the applicant to resist being returned to Iraq. The fact that the Minister’s conduct in this regard was misguided was, in essence, conceded by the respondents.
If the Minister had not unreasonably and misguidedly imposed condition 8510 on the applicant’s Bridging Visa E, there would have been no need for the applicant to write the submissions for which he now seeks costs.
In all the circumstances of this case, I consider that it is appropriate for the respondents to pay the applicant’s costs, reasonably incurred, of the submissions on the invalidity of condition 8510 on the applicant’s Bridging Visa E.
COSTS REASONABLY INCURRED
That leaves the question of how much of the $23,852.50 was reasonably incurred.
It seems to me to be excessive for the solicitor to claim four hours for reading and finalising a 17 page submission. I consider that two hours for those tasks was ample. Consequently, $1,540 must be taken off, leaving $22,312.50.
It also seems to me to be excessive for the two junior counsel to spend a combined total of 28.25 hours drafting a 17 page submission, even allowing for the fact that it dealt with a novel point. I consider that a more reasonable amount for each counsel is two-thirds of the claim for them. That means that, in respect of Mr Rares, $3,113.75 should be taken off, and in respect of Ms Bridgett, $2,420 should be taken off. That leaves $16,778.75. It seems to me that that sum is a reasonable figure overall for a 17 page written submission on a novel point on an indemnity basis. There will be orders accordingly.
OFFSET
The respondents asked that any costs ordered against them in the present matter be offset against other costs ordered against the applicant in other matters. For the reasons discussed in GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718, I do not consider that is an appropriate course.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 3 July 2025
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