Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1025
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1025
File number(s): SYG 112 of 2023 Judgment of: JUDGE LAING Date of judgment: 9 November 2023 Catchwords: MIGRATION – costs – cost sought in an amount above scale – relevant principles – fixed costs order made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Part 2, Division 1 Cases cited: AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1010
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 9 November 2023 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Vietaust Lawyers Solicitor for the Respondent: Ms Q Ren of HWL Ebsworth Lawyers ORDERS
SYG 112 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THANH DAM NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs fixed in the amount of $8,371.30.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING:
Before the Court is an application for costs fixed in an amount above scale. This follows delivery of judgment today in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1010, in which I dismissed an application before the Court on the basis that this Court lacked jurisdiction to determine the matter.
Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) contains what is commonly referred to as the Court’s “scale” in relation to migration proceedings. It states the following in relation to such proceedings that have been determined other than by discontinuance:
Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,675.75 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing$4,189.38 3 A proceeding concluded at a final hearing $8,371.30
The application before the Court involved an application for an extension of time. Dismissal of such an application is provided for under item 2, which attracts an amount of $4,189.38. This was the amount that the applicant submitted would be appropriate.
I note that the matter did not proceed to determination of the extension of time application. This is because I accepted the Minister’s contention that the Court lacked jurisdiction to determine the matter. The application was dismissed on that basis.
In any event, whilst due regard is to be had to the Court’s scale, the Court is not bound to impose it. In an application such as the present, the Court will consider what represents “a fair indemnity for the costs the successful party has incurred”: CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [23]-[28] per Judge Manousaridis. To that end, it may be useful to consider the usual steps involved in proceedings of this nature. In this regard, the usual steps that the Minister may be expected to undertake in proceedings such as the present were identified by Judge Given in AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 at [7]:
7.While processes have varied somewhat over the years and, occasionally, between different registries, it can be accepted that a standard migration proceeding ordinarily involves a number of usual steps (DZW17 (No 2)). For the Minister, those steps will usually include:
(a) the originating application and Affidavit in support;
(b) preparing a Response and Submitting Appearance;
(c)sometimes, attendance at a first court date if the matter was initially filed in the Sydney registry (albeit that practice has now changed post-COVID-19);
(d) preparation of the Court Book;
(e)a grant of leave to the applicant to amend and consequential requirement for the first respondent to consider same;
(f) consideration of the applicant’s submissions;
(g)preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and
(h)attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere around two hours or two and a half hours) …
The procedural steps undertaken in this matter were not particularly unusual. The matter was concluded following a hearing of regular duration, after submissions and evidence had been filed. Some correspondence appears to have been undertaken throughout the matter between the parties.
The Minister seeks for costs to be awarded in the fixed amount of $9,000. This represents 75% of the Minister’s incurred and estimated solicitor/client costs in the matter, as well as 100% of Counsel’s fees.
The Minister relied upon an affidavit affirmed by Mengqi Ren on 8 November 2023 in support of the application. That affidavit refers to the following tasks having been conducted in the matter:
a.Preparing, settling, filing and serving the Court Book filed 23 May 2023 in circumstances where the relevant files were extensive and the Court Book amounted to 325 pages;
b.Considering complex legal issues relating to the Court's jurisdiction to determine the application;
c.Preparing and settling a response filed on 28 March 2023 and an amended response filed on 16 May 2023 setting out the Minister's position that the application has failed to invoke the jurisdiction of this court and seeking an expedited hearing;
d.Correspondence with the applicant's solicitor on 29 March 2023, 3 April 2023 and 19 April 2023 inviting the applicant to consider discontinuing the application for the reason identified in our response;
e.Various further correspondence with the applicant's solicitor between 19 July 2023 and 31 July 2023 regarding the matters to be addressed at hearing;
f.Responding to requests from the applicant's solicitor on 31 July 2023 for additional information regarding operation of the Department's online enquiry form, as well as the applicant's solicitor's enquiry on 1 August 2023 regarding whether the Department had sent any request for information email to the applicant and/or his representatives at any different email addresses;
g.Retaining and instructing Counsel to consider novel and complex issues that arose in the present matter; and
h.Additional professional fees which were incurred in the day to day carriage of the matter with skill, care and responsibility.
I accept that this matter involved a level of complexity and that it was appropriate to brief Counsel. I recognise that I have been capably assisted by Counsel on both sides of this matter. I accept that the interlocutory amount provided for under item 2 of the scale would not represent a fair indemnification in this matter.
However, the issue that this matter turned upon was a reasonably narrow one. I have accepted the Minister’s submission that this Court lacks jurisdiction to determine the matter, by reference to the case of Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396. It has therefore not been necessary to go on to determine whether an extension of time ought to be granted in the matter and, if so, whether the application ought to succeed on the basis that was relied upon by the applicant.
Having regard to the narrowness of the issue on which this matter turned, and the circumstances of this case as a whole, I consider that a fair indemnity is commensurate with the scale amount related to a matter determined at final hearing, being $8,371.30. I have therefore ordered that costs be awarded in this amount.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 November 2023
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