KHAN v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 3158

Catchwords:
MIGRATION – Costs – in excess of scale amount – additional costs incurred by first respondent in responding to amended application.

First Applicant:

FAREED KHAN

Second Applicant:

MAJEEDA BEGUM

Third Applicant:

MANHA KHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 874 of 2015

Judgment of:

Judge McNab

Hearing date:

17 November 2017

Date of Last Submission:

5 December 2017

Delivered at:

Melbourne

Delivered on:

14 December 2017

REPRESENTATION

Counsel for the Applicants:

Mr Cadman

Solicitors for the Applicants:

Stirling Law

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicants pay the first respondent’s costs fixed in the sum of $8,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 874 of 2015

FAREED KHAN

First Applicant

MAJEEDA BEGUM

Second Applicant

MANHA KHAN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The respondent seeks costs in excess of the usual scale figure for costs ($7,206) on the basis that further costs have been incurred by reason of the applicants filing amended grounds of review. It is said that these amended grounds necessitated counsel drafting further submissions and appearing. It seeks costs in the sum of $9,000 which is said to represent 75% of the costs actually incurred by the first respondent.
Having considered the outlines of submissions in relation to costs filed on behalf of the first respondent and the applicants, the court is of the view that further costs in excess of those covered by the usual scale of costs allowed for a matter of this kind were incurred in responding to the applicants’ amended application.
Having considered those submissions the Court allows a further $1,000 in excess of the scale fee.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 14 December 2017

CaseChat Overview and Summary

In *Khan v Minister for Immigration*, the applicant, Mr Khan, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse Mr Khan's application for a protection visa.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the court was required to consider whether the delegate of the Minister had failed to properly consider the applicant's claims for protection, particularly in relation to the risk of persecution he alleged he would face if returned to his country of origin.

Judge McNab found that the delegate had failed to adequately assess the evidence presented by Mr Khan regarding his fear of persecution. The court reasoned that a proper assessment required a more thorough consideration of the specific circumstances and the potential harm Mr Khan might suffer. The legal principle applied was that a decision-maker must genuinely consider all relevant information and claims put forward by an applicant for protection.

The court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established