Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2)
[2024] FedCFamC2G 1315
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2) [2024] FedCFamC2G 1315
File number(s): MLG 293 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 2 December 2024 Catchwords: MIGRATION - costs – where costs of the proceeding significantly exceed the event based “scale” amount at Schedule 2 of Division 1, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where the applicant was wholly unsuccessful in the proceeding – consideration of factors relevant to the exercise of the discretion to order costs – costs as agreed or taxed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss.214
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 22.02, 22.03, 29.13
Cases cited: AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
CIQ17 v MICMSMA (No 2) [2020] FCCA 3467
DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129
Grant v Secretary of Home Affairs [2022] FCA 261
Jordan (a pseudonym) v Secretary of Department of Home Affairs [2023] FedCFamC2G 515
Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 1212
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 25 November 2024 Date of hearing: 14 March 2023 Place: Melbourne Counsel for the Applicant: Mr Albert (15 November 2022) and Mr Crosthwaite (14 March 2023 and 15 November 2022) Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr McGlade Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 293 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RYAN JORDAN (A PSEUDONYM)
Applicant
AND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant pay the Respondent’s costs of the proceeding as agreed or taxed.
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 Mansini
IN SUMMARY
This is an application for the unsuccessful party to the proceeding in Jordan (a pseudonym) v Secretary of Department of Home Affairs [2023] FedCFamC2G 515 to pay the Commonwealth of Australia’s costs of the proceeding.
This was not an orthodox application in the migration jurisdiction. The Respondent’s costs of the proceeding significantly exceed the event based scale provided by the rules of the Court.
These reasons explain the order of the Court as to payment of costs.
CONTEXT
The Applicant is a citizen of Pakistan who came to Australia by boat on 23 March 2013 as an unauthorised maritime arrival and sought protection of Australia by reason of claims to fear harm on his return.
Since his arrival, the Applicant has pursued a range of legal options in an attempt to secure the protection of Australia or, subject of these proceedings, to be removed to a country other than his country of origin.
The precise relief sought in the present proceedings evolved during the course of the proceedings, the fact and course of which is summarised at paragraphs [11] to [26] of the judgement in Jordan (a pseudonym) v Secretary of Department of Home Affairs [2023] FedCFamC2G 515 as follows:
[11] On 9 February 2022, the proceedings were commenced. The originating application sought:
(a) interlocutory orders for the allocation of a human pseudonym, a restraint on the Respondent from taking the Applicant to a regional processing country, a residential detention order for the Applicant to live with a friend pending the final resolution of the proceedings, and a subsequent transfer of this proceeding to the Federal Court; and
(b) final orders for the Respondent to as soon as reasonably practicable take the Applicant to a regional processing country pursuant to s.198AD(2), a residential detention order pending the performance of the s.198AD duty at the nominated friend’s address, and that the Respondent pay the Applicant’s costs.
[12] Various procedural orders were subsequently made including the allocation of a human pseudonym pursuant to s.91X of the Act and a program for final hearing was entered. The matter was later re-allocated for hearing before the Court as presently constituted.
[13] On 4 May 2022, the Applicant filed an amended application which essentially sought orders for the Respondent to: perform the duty under s.198 of the Act to remove the Applicant from Australia as soon as reasonably practicable; to cause immigration detention to occur at a residential address; be restrained from removing the Applicant to Pakistan; in addition to a declaration that the Respondent must afford procedural fairness to the Applicant in performing the duty under s.198 and an order as to costs.
[14] On 9 June 2022, the hearing of the substantive application commenced. The Applicant attended in person from immigration detention and was represented by Counsel appearing in person. The Respondent was also represented by Counsel appearing in person. The hearing was adjourned on that day, on application of the Applicant during cross-examination of a Mr Michael Carney, Inspector (Executive Level (EL) 1) within the Field and Removals Operations Team (Removal Operations) of the Maritime and Enforcement Operations South Branch of the Australian Border Force and on the basis that the injunction sought was no longer sought on an urgent or interlocutory basis.
[15] On 21 June 2022, the Applicant made a request under s.198 of the Act for the Minister to remove him to any of: Germany, Italy, the United States of America, New Zealand, Canada, Antigua or Barbuda.
[16] On 19 July 2022, the Applicant filed a further amended application which contained 4 grounds of review and identified the relief sought in the terms set out [at paragraph [22]] below.
[17] Over the period 19 July to 14 November 2022, further affidavit evidence, consolidated written submissions and an updated supplementary court book was filed.
[18] On 15 November 2022, the hearing before this Court resumed. The Applicant attended by video link from immigration detention and was represented by Counsel appearing in person. The Respondent was also represented by Counsel appearing in person. Judgment was reserved.
[19] On 22 December 2022, the Minister made a residence determination order pursuant to s.197AB of the Act enabling the Applicant to live in the Australian community. The Applicant was subsequently released from immigration detention.
[20] On 2 February 2023, the matter was listed for mention in relation to a further question of the Court regarding the third ground of the further amended application. At the mention, the Applicant’s Counsel notified the Court that the prior evening an application in a proceeding had been lodged with the Registry. In summary, the Applicant sought a stay of the substantive matter on the basis that the continuation of it would be to his detriment and prejudice. Programming orders were made in relation to that interlocutory application and materials were subsequently filed by the parties.
[21] On 14 March 2023, the matter proceeded to hearing of the interlocutory application by video link. The Applicant was represented by Counsel and the Respondent was represented by Counsel.
The applications before the Court
Primary application for final relief
[22] By the further amended application of 19 July 2022, the Applicant sought the following substantive relief against the Secretary of the Department of Home Affairs as the single respondent:
1. The decision by or on behalf of the Respondent dated 7 June 2022 to remove, or that it was lawful to remove, the applicant to Pakistan be quashed.
2. The respondent must perform, or cause to be performed, the duty under s 198 of the Act to, as soon as reasonably practicable, remove the applicant from Australia other than to Pakistan.
3. An order that from no later than 1.00pm on 14 days after judgment:
(c) The respondent is to cause any detention of the applicant in immigration detention pending performance of his duty under s 198 of the Migration Act 1958 (Cth) to occur at the address set out in the affidavit of [Applicant’s friend] dated 22 December 2021; and
(d) The applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under Migration Act 1958 (Cth), or by another person or persons directed by the respondent to accompany and restrain the applicant.
4. The respondent be enjoined from removing the applicant to Pakistan.
5. [deleted]
6. An order that the respondent pays the applicant’s costs of the proceedings.
(sic.) (the tracked changes which indicated amendments to the superseded version of the application as marked on the further amended application have been omitted for ease of reference)
[23] In support, the Applicant articulated 4 grounds:
(a) In respect of the first order sought, that the decision to remove, or that it was lawful to remove, the Applicant to Pakistan dated 7 June 2022 was unlawful and/or infected by jurisdictional error (hereinafter referred to as Ground 1) because:
. The respondent failed to afford the applicant procedural fairness, which obligation conditions to the lawful exercise of the duty to remove under s 198 of the Act.
. The respondent failed to consider or engage with material filed by or on behalf of the applicant in respect of whether it was reasonably practicable to remove him to Pakistan, including affidavits in sworn form.
. The respondent took into account irrelevant considerations, namely whether Australia owed the applicant non-refoulement obligations.
. Having regard to all matters, the decision to remove the applicant to Pakistan was legally unreasonable.
(b) In respect of the second order sought, that it was reasonably practicable to remove the Applicant to a place outside Australia other than Pakistan (Ground 2).
(c) In respect of the third order sought, the Applicant conceded that the relief is not available but maintained the ground to preserve the Applicant’s position subject to the outcome of proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 (AZC20) on appeal before the High Court of Australia (Ground 3).
(d) In respect of the fourth order sought, it is not reasonably practicable to remove the Applicant to Pakistan now or in the reasonably foreseeable future for reasons other than Australia’s non-refoulement obligations (Ground 4).
[24] In summary, the Respondent denied that relief was available in those forms including because no decision to remove the Applicant was made on 7 June 2022 or at any time and, therefore, there was no “migration decision” to quash and there is no basis to compel the Respondent to do anything at all. If the injunctive relief sought (by Ground 4) were refused, then the Respondent maintained that the Applicant could be removed to Pakistan quickly within 3 to 4 weeks. The Respondent also said that new evidence about the circumstances in Pakistan is not able to be considered by this Court and is a matter for the removal officers. Further, as Ground 3 is not pressed, then the proper approach is that it be withdrawn or dismissed.
Interlocutory application for a stay
[25] By the interlocutory application filed 2 February 2023, the Applicant sought orders in the following terms:
1. Pursuant to rule 29.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, proceeding MLG 293/2022 is stayed until 2 July 2023, or some other time that the Court deems appropriate.
2. Each party have liberty to apply to vary or discharge the stay.
3. Costs reserved.
[26] The Respondent said this was not a circumstance warranting the extraordinary exercise of the discretion to order a stay and to do so would be to improperly secure the Court’s intervention in the preservation of a status quo.
For the reasons given in Jordan (a pseudonym) v Secretary of Department of Home Affairs [2023] FedCFamC2G 515, the Applicant was wholly unsuccessful in that the Court dismissed both the Applicant’s interlocutory application for a stay of proceedings filed on 2 February 2023 and the Applicant’s further amended application filed 19 July 2022.
THE APPLICATION FOR COSTS
The respective contentions
The Respondent sought an order that its costs of the proceeding be as agreed or taxed. According to an affidavit filed in support, the Respondent estimated its costs incurred as at delivery of judgement in the matter as follows:
(a)AGS fees: $60,556.00
(b)Disbursements: $45,930.89 which are broken down, as follows:
(i)Ben McGlade invoices: $41,990.90
(ii)Patrick Knowles SC invoice: $1,338.35
(iii)Counsel travel: $1,664.16
(iv)Transcript: $456.00
(v)Printing: $481.48
Both parties contended that the application of what is “just and fair” in the circumstances, as contemplated by a Full Court of the Federal Court of Australia in Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 (Mortimer CJ, Colvin and Dowling JJ) (Gehlert) , would result in a decision in their favour.
For their part, the Respondent contended that the nature and complexity of the case render it inappropriate to limit costs to the scale amount.
The Applicant asked the Court to make no order as to costs. The Applicant sought to impress on the Court that the proceedings were principally in pursuit of his liberty and it is only fair and just that costs barriers not be placed on litigation pursued for that objective: citing Grant v Secretary of Home Affairs [2022] FCA 261 (Murphy J) and DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 (Mortimer J). Further, that his case was more than arguable and not speculative or without proper basis as evidenced by the length of submissions and judgement in the matter. The proceeding was not brought prematurely, concerning a person who had been held in executive detention for many months, was suffering in unusual ways and was stuck in an administrative process of extraordinary length. For his part, the Applicant said that he may not have brought the proceeding at all had the Minister decided to exercise their power to release him to be detained in the residential community at an earlier stage rather than after judgement was reserved in the matter – that is, the Minister’s belated election in this respect necessarily confined the steps that might otherwise have been taken to limit the costs of either party to the proceeding. The Applicant also sought that his costs (unnecessarily, on account of the Respondent’s evidence given on that day) incurred in preparation for and appearance at the hearing on 9 June 2022 be offset against the Respondent’s costs thereafter.
Or, if costs were to be awarded, the Applicant sought that they be limited to the scale amount. The Applicant also argued that it is a duty of all parties to keep their costs to a minimum and avoid expending extreme costs which he said the Respondent had done here.
The Respondent further contended that the proceeding is not properly characterised as being about the Applicant’s liberty. Rather, the proceeding was about the location of the Applicant’s removal to another country and it was his own conduct in bringing a proceeding to restrain his removal to Pakistan that resulted in the extension of his time in immigration detention. Further, a significant part of the proceeding was about an attempt to have an alleged removal decision quashed which was not directed at securing liberty. And, in any event, a proceeding directed at securing personal liberty may be a relevant factor to weigh in the discretion but is not necessarily or of itself conclusive.
LEGAL FRAMEWORK
The Court has a wide discretion to make costs orders: s.214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
Division 22.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules), which applies to migration proceedings, provides a number of options to the Court in the exercise of its discretion under s.214(3). Relevantly, at r.22.02, that an application for costs may be made within a time allowed by the Court and, 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 the payment of the costs, which may be before the proceeding is concluded.
The Court may specify the maximum costs that may be recovered on a party and party basis, whether on its own initiative or on application of a party subject only to a specified amount not including an amount that a party is ordered to pay because the party has failed to comply with Court orders, has sought leave to amend a document or has otherwise caused a party to incur costs that were not necessary for the economic and efficient progress of the proceeding or the hearing of the proceeding: rr.22.03(1) and (2).
Division 22.3 then outlines a process for quantification of costs where not specified in the order.
Whilst expressly not precluding an application under Part 22, in migration proceedings the Court may order an unsuccessful party to the proceeding to pay the costs of the successful party in accordance with the event based scale at Division 1 of Part 2 of Schedule 2: rr.29.13(1) and (3). For final proceedings, that amount is presently $8,371.30.
Whilst the GFL Rules deal with the way in which the Court’s discretion may be exercised they do not require the exercise of the discretion in a particular manner: Gehlert at [65]. The Full Court’s guidance as to the exercise of the discretion in Gehlert relevantly including the following:
[66]However, the presence of r 29.13, and the presence of Pt 2 of Sch 2 in the scheme for the award of costs by the FCFCOA in migration proceedings evinces an intention that any application for costs be measured or assessed in a context where the Court (or Judge) is conscious that a majority of the Judges of the Court have agreed to fix a scale of costs considered to be generally applicable to migration proceedings, and considered to provide an express benchmark for what may be seen as fair and just in a given case.
[67]The same is true of Pt 1 of Sch 2 in relation to GFL proceedings other than migration proceedings. However, the critical point is that both parts of Sch 2 are to operate as benchmarks or guidance, informed as they are by the external review processes to which the parties referred in argument, and consideration of what is likely to be incurred in conducting proceedings in the GFL jurisdiction. It remains up to an individual Judge, in the particular circumstances of the case before them, and being faithful to the broad discretion in s 214(3) of the FCFCOA Act, informed by r 22.02 of the GFL Rules, to decide if the scale costs are in fact fair and just in the circumstances of the particular costs application before the Court.
The overarching principle in regards to whether it is appropriate to fix costs in the amount prescribed by the GFL Rules is that costs should be set to provide the successful party a fair indemnity for the costs they have incurred in having had to litigate: CIQ17 v MICMSMA (No 2) [2020] FCCA 3467 (Manousaridis J) at [26].
The guidance from the established case authorities as to the (non-exhaustive) factors that may be relevant includes: number and complexity of the grounds; number of interlocutory proceedings and hearing duration; the usual steps involved in a migration matter (see AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 (Given J)); retention of Counsel by one or both parties; length and quality of written submissions and the Court book.
The Court was not asked to do so here but, for completeness, the inability to meet a costs order without more is not sufficient reason to deny a successful party his or her costs: Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 1212.
The event based scale at Division 1 of Part 2 of Schedule 2 of the GFL Rules is a guide and a relevant benchmark to take into account.
CONSIDERATION – WHAT IF ANY AWARD OF COSTS IN THE PRESENT CASE?
The Court has a broad, discretionary power to order costs. It falls to consider what is in fact fair and just in the circumstances of this particular costs application before the Court.
In the present case, the evidence as to the Respondent’s costs incurred in defending the wholly unsuccessful application(s) were significantly in excess of the event based scale for a final hearing provided in Division 1 of Part 2 of Schedule 2 of the GFL Rules.
The proceeding did not involve a direct attempt to recover the Applicant’s personal liberty but did seek to test the limits of constraints that were imposed on his liberty in terms of the circumstances of his ongoing immigration detention in Australia and his removal to a country of his choice. It may be accepted that this is a factor weighing against the grant of costs as sought.
The proceeding involved a degree of complexity, including on account of the evolution of the pleadings and the Respondent’s decision to allow the Applicant to continue his immigration detention at a residential address at a relatively late stage. It was initially programmed with urgency but ultimately, strongly guided by the Applicant’s requests, extended over many months. There were relative volumes of materials filed. It perhaps follows but nonetheless is relevant that the proceedings also involved an unusual course of events – the context summarised above discloses the following:
(a)There were a total of 3 substantive hearings and 2 procedural hearings.
(b)The Applicant was twice granted leave to substantively amend his pleadings.
(c)The first day of hearing on 9 June 2022 was adjourned at the Applicant’s request, having regard to the Respondent’s evidence on that day, and costs were expressly reserved.
(d)The second day of hearing proceeded on the basis of the second amendment to the application, made after the first day of hearing was adjourned.
(e)After the second day of hearing on 15 November 2022, when judgement was reserved, the Applicant was granted the relief connected with his amended third ground in that he was released to be detained in the residential community (which relief, he had accepted, was not available on the state of the law at the time of the second day of hearing but nonetheless had been formally pressed). That act precipitated an interlocutory application for a stay, made by the Applicant, and a further hearing on 14 March 2023.
The conduct of the respective parties and their representatives was not improper or unreasonable in these respects. At each relevant step taken, costs were expressly reserved. And, at all relevant times, the Applicant was represented by Counsel and therefore in a position to make forensic decisions about the course of the litigation that he elected to pursue and to know that his costs exposure increased at each election to proceed as he did. As will be apparent from the above summary, those elections included the Applicant’s request for an adjournment of the first day of hearing in order to consider his position and amend his application following the evidence of the Respondent’s witness given that day.
For completeness, I acknowledge that the Minister might have ceded to grant the relief sought by the third ground sooner but do not accept the Applicant’s submission that the proceedings might not have occurred or continued at all were his removal to residential immigration detention in the community to have occurred sooner. It is to be remembered that the third ground was not available at law at the time, but was formally pressed on account of the Applicant’s desire to preserve the contention on appeal. In any event, such finding would not accord with the Applicant’s consistent pursuit of an order requiring his removal to a country other than Pakistan and would otherwise be to engage in mere speculation. To the extent that the case was altered by that development, again that was of the Applicant’s choosing in seeking to apply for a stay after judgement was reserved.
Weighing the various factors about which the Court was addressed and taking into account guidance from the case authorities, in my opinion, the unique and particular circumstances of this case do not warrant departure from the principle that costs follow the event and do not warrant the application of the event based scale at Schedule 2 of Division 1, Part 2 of the GFL Rules.
RESOLUTION
For the above reasons, I will order that the Applicant pay the Respondent’s costs as agreed or taxed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 2 December 2024
2
8
2