Ntokos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)

[2021] FCCA 1009

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ntokos v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (No 3) [2021] FCCA 1009

File number(s):	MLG 241 of 2020
Judgment of:	JUDGE MERCURI
Date of judgment:	14 May 2021
Catchwords:	MIGRATION – Electronic Travel Authority (subclass 601) visa – costs application – costs on scale – costs order made.
Legislation:	Migration Act 1958 (Cth) ss 116(1)(d)
Number of paragraphs:	12
Date of last submission/s:	3 May 2021
Date of hearing:	On the papers
Place:	Melbourne
Solicitors for the Applicant:	No appearance
Solicitors for the Respondents:	No appearance

ORDERS

MLG 241 of 2020

BETWEEN:

ALEXANDROS NTOKOS

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE MERCURI
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.The applicant pay the respondent’s costs fixed in the sum of $7,467.

REASONS FOR JUDGMENT

JUDGE MERCURI

INTRODUCTION

1. These reasons for judgment are to be read in conjunction with my reasons for judgment in Nkotos v Minister for Immigration [2020] FCCA 178 handed down 24 January 2020 and Nkotos v Minister for Immigration (No.2) [2020] FCCA 321 handed down on 18 February 2020.

   BACKGROUND

2. The factual background to these proceedings is set out at paragraphs 9 to 15 of Nkotos v Minister for Immigration [2020] FCCA 178 and paragraphs 2 to 25 of Nkotos v Minister for Immigration (No.2) [2020] FCCA 321. I do not repeat those matters here.

   Procedural background

3. This matter first became before the court on 24 January 2020 for an application for judicial review of a decision of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) to cancel the applicant’s Electronic Travel Authority (“ETA”) (subclass 601) visa under section 116(1)(d) of the Migration Act 1958 (“the Act”).

4. In the applicant’s application filed 22 January 2020, he sought an order quashing the cancellation of the applicant’s visa and in addition, sought interlocutory relief for an injunction against the respondent from removing him from the Commonwealth of Australia pending the final determination of his substantive application.

5. On 24 January 2020, the matter came before me for an urgent interlocutory hearing. In my reasons for judgment in Nkotos v Minister for Immigration [2020] FCCA 178 handed down 24 January 2020, I made orders restraining the respondent from taking any action in removing the applicant from the Commonwealth of Australia pending the final determination of the substantive application of the proceedings. I also made orders for procedural filing directions and adjourning the substantive application for an urgent hearing on 11 February 2020 reserving costs.

6. The substantive application came before me on 11 February 2020 where I reserved my judgment.

7. On 18 February 2020 and for the reasons set out in Nkotos v Minister for Immigration (No.2) [2020] FCCA 321, I ordered that the applicant’s application filed 22 January 2020 and amended on 4 February 2020 be dismissed, order 1 of the orders made 24 January 2020 be discharged, and the applicant pay the respondent’s costs in a sum to be fixed. I further ordered that the parties file brief submissions on the question of costs within seven days.

   Respondent’s submissions

8. On 26 April 2021, the respondent corresponded with my chambers seeking leave to file submissions on the questions of costs by 7 May 2021. The respondent had indicated that an agreement could not be reached regarding costs between the parties as the applicant’s solicitors could not obtain instructions from the application who had been returned to Greece. On 30 April 2021, I granted leave for both parties to submissions on the question of costs within seven days.

9. On 3 May 2021, the respondent’s solicitors filed submissions on costs. On the same date, the applicant’s solicitors wrote to my chambers indicating that they would not file submissions as they could not obtain instructions from the applicant.

10. The applicant’s solicitors filed a notice of intention to withdraw as lawyer on 3 May 2021 and subsequently filed a notice of withdrawal of lawyer on 10 May 2021. No submissions have been filed by the applicant.

11. In the respondent’s submissions filed 3 May 2021, the respondent submitted that it incurred costs totalling $9,519 in the conduct of the proceeding. These costs including the preparation of a transcript of the delegate interviews that took place on 20 and 21 January 2020. The respondent therefore seeks an order requiring the applicant to pay the respondent’s costs, fixed in the Scale amount applicable as at 22 January 2020 of $7,467.

    CONCLUSION

12. In the circumstances of this matter and in the absence of any submissions from the applicant to the contrary, I am satisfied that it is appropriate to make orders for the applicant to pay the respondent’s costs on scale in the sum of $7,467. I so order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri.

Associate:

Dated:       25 May 2021