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

[2024] FedCFamC2G 1106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Naqvi v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1106

File number(s):

MLG 1042 of 2020

Judgment of:

JUDGE CUTHBERTSON

Date of judgment:

30 October 2024

Catchwords:

MIGRATION – costs – where application for judicial review was dismissed – where the Minister sought costs – where the applicants contested Minister’s proposed costs on the basis of their impecuniosity and that they were unaware they would be liable for costs in the event that the application was dismissed

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(1), 22.09, 29.13

Cases cited:

BAX16 v Minister for Immigration and Border Protection [2018] FCA 181

ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658

FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA

Naqvi v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 991

Paciocco v Australia and New Zealand Banking Group Ltd (No 2) (2017) FCR 403; [2017] FCAFC 146

Question of Law Reserved No.1 of 2022 (No 2) [2023] SASCA 135

Richards v Han (costs) [2023] FCA 211

Toh & Anor v Wu & Anor [2018] VSC 36

Division:

Division 2 General Federal Law

Number of paragraphs:

17

Date of last submission/s:

8 October 2024

Date of hearing:

8 October 2024

Place:

Melbourne

First Applicant:

Via videoconference and on behalf of the second applicant

Counsel for the First Respondent:

Mr J. McDonald via videoconference

Solicitor for the First Respondent:

Clayton Utz

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1042 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SYED MOHAMMAD AWAIS NAQVI

First Applicant

SUMMIYA IMAM

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CUTHBERTSON
DATE OF ORDER:	30 OCTOBER 2024

THE COURT ORDERS THAT:

1.The applicants pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $7,467.00.

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 CUTHBERTSON

INTRODUCTION

1. On 27 March 2020, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the second respondent (the Tribunal) (Application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal also found it had no jurisdiction with respect to the second applicant.

2. On 8 October 2024, I made an order dismissing the application and delivered my reasons for judgment: Naqvi v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 991. Leave was also granted to the parties to file further submissions with respect to the Minister’s application for costs, as the first applicant opposed that application. Accordingly, the Minister filed written submissions on 23 October 2024 addressing their cost application (Minister’s costs submissions). The applicants have not filed submissions in accordance with the orders of 8 October 2024.

3. For the reasons that follow, I order that the applicants pay the Minister’s costs of and incidental to the proceedings fixed in the sum of $7,467.00.

   BACKGROUND

4. On 24 April 2020, the Minister filed a Response to the application which sought orders that the application be dismissed and the applicants pay the Minister’s costs. On 30 May 2024, the Minister filed an Outline of Submissions (Minister’s outline) which again sought orders that the application be dismissed and the applicants be required to pay the Minister’s costs fixed in the sum of $8,371.30.

5. On 12 June 2024, the Minister filed an affidavit of service which established the Minister’s outline was served on the applicants on 30 May 2024 via the email address provided by the applicants as an address for service.

6. Upon delivering judgment on 8 October 2024, the Minister again sought costs on the same basis set out in the Minister’s outline. I heard submissions regarding that application from both parties.

   THE APPLICANTS’ SUBMISSIONS

7. The applicant opposed the costs order sought by the Minister.  He submitted he was not aware he would be liable costs, as he had “never been told about…costs” and that it was the “first time [he was] hearing about it”. I also understood the applicant to oppose the application as he was unclear on how the costs order may be enforced, given that the applicants reside offshore, as well as on the basis of their impecuniosity. The applicant advised he would like to take some further legal advice.

8. I made an order giving the applicants 7 days to file and serve submissions in respect of the Minister’s costs application. The Minister was also given a further 7 days following receipt of the applicants’ submissions to file and serve a response. The application for costs was otherwise adjourned for decision unless the parties sought a further hearing in respect of the costs application.

9. The applicants did not file any submissions in accordance with the orders. They have not sought a further hearing in respect of the costs application.

   THE MINISTER’S COSTS SUBMISSIONS

10. In response to the applicant’s submission they were unaware that they would be liable for costs, the Minister referred to the response and the Minister’s outline, both of which notified an order for costs would be sought in the event the applicants’ application for judicial review was dismissed. The applicant confirmed at the judgment delivery hearing he had received the Minister’s outline.

11. The Minister referred to the legislative basis for the award of costs in such proceedings which is to be found in s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and rr 1.06(1), 22.09 and 29.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The Minister submitted the Court has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29], per Griffiths J. It was submitted that the general rule is that costs will be awarded to the successful party in the absence of special circumstances justifying some other order: Richards v Han (Costs) [2023] FCA 211 at [9] per Halley J. It was noted that fixed costs orders are frequently made by this Court, particularly in migration matters: ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658 at [40] per Judge Laing. Such orders are particularly appropriate given the relatively modest amount of costs in issue in such matters: Question of Law Reserved No.1 of 2022 (No 2) [2023] SASCA 135 at [41]. Such orders also save the parties “the time, trouble, expense and aggravation of a taxation”: Paciocco v Australia and New Zealand Banking Group Ltd (No 2) (2017) FCR 403 at 407 per Allsop, CJ, Besanko and Middleton JJ; [2017] FCAFC 146 at [20].

12. As to the quantum of a fixed costs order, the Minister submitted there is no “bias or weighting to be accorded in favour of scale costs”: FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433 at [46] per Burley J. In determining the appropriate quantum, the Court aims to give the party in whose favour the order is made “a fair indemnity for the costs …. incurred in having had to litigate”: FJS18 at [44].

13. The Minister submits in this case that there “is no reason to depart from the ordinary course that costs follow the event”. First, the applicants were on notice of that the Minister would seek costs in the event the application was dismissed. The Minister successfully resisted the application. In doing so, it expended funds, including by filing the Court Book. Second, the costs incurred are less than the scale amount provided pursuant to the current Rules which is $8,371.38. As a consequence the Minister is seeking the sum of $7,467.00 which is the scale amount under the former rules at the date the applicants’ judicial review application was filed in circumstances where the actual sum incurred is $7,975.00. The Minister submits this lower sum represents a fair indemnity for the Minister’s costs.

14. In response to the applicant’s submissions that they did not consider costs appropriate in circumstances where they reside offshore, or insofar as they submitted that they were unable to meet the cost order sought, the Minister submits that this is an irrelevant consideration because “while a party’s financial position might be relevant to the question of enforceability of a costs order, it is not a relevant consideration with respect to liability for costs” (emphasis in original): Toh & Anor v Wu & Anor [2018] VSC 36 at [14] per Daly AsJ.

    CONSIDERATION

15. The applicants have chosen not to provide further submissions. The submissions concerning their capacity to pay and the enforceability of any costs orders while they reside overseas are not relevant considerations. In my view, no cogent reasons have been put forward to displace the usual rule that costs should follow the event. In this case, the applicants have wholly failed on their application for judicial review. It was their decision to bring the application to this Court. To the extent that it is relevant, it is not correct to claim the applicants had no notice of the costs consequences of that decision: they were provided notice by the Minister in the response filed to their application and in the Minister’s outline.

16. I am also satisfied an order should be made in a fixed sum. Given the relatively modest amount involved, this is an appropriate course to take. I am satisfied the amount sought represents a fair indemnity for the Minister’s costs. The Minister prepared the Court Book, prepared written submissions in respect of the judicial review application and appeared at hearing. The Minister has advised costs have been incurred in the sum of $7,975.00. I have no difficulty accepting that amount reflects the costs of properly representing the Minister’s interests in this matter. The sum actually sought is less than that amount and represents, in my view, a fair indemnity in all of the circumstances.

    CONCLUSION

17. In light of the above, I order the applicants pay the first respondent’s costs of and incidental to the proceedings in the fixed amount of $7,467.00.

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

Associate:

Dated:       30 October 2024