Qiao v Minister for Immigration and Multicultural Affairs (No 3)
[2025] FedCFamC2G 132
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Qiao v Minister for Immigration and Multicultural Affairs (No 3) [2025] FedCFamC2G 132
File number: SYG 844 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 February 2025 Catchwords: MIGRATION – Costs judgment. Legislation: Federal Circuit and Family Court of Australia (Division Two) (General Federal Law Rules) 2021 (Cth) Cases cited: AHE18 v Minister for Immigration Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257
FSJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433
Qiao v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 84
Qiao v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 951
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 28 November 2024 Place: Parramatta Counsel for the Applicants: Mr Leong (28 November 2024) Solicitor for the Applicants: Ms Wang (Juris Cor Legal; 28 November 2024) Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Cacaj (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 844 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XI QIAO
First Applicant
JIA LU
Second Applicant
RUOXIN QIAO
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Amended Application for judicial review filed 2 September 2024 is dismissed.
2.The First and Second Applicant are to pay the First Respondent’s costs fixed in the sum of $4,189.92.
THE COURT NOTES THAT:
A.The amount fixed in Order 2 above includes the cost of both the substantive and interlocutory hearing.
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 D HUMPHREYS
INTRODUCTION
This judgment is in response to a request by the Minister’s legal representatives for written reasons in respect of the costs orders made in the matter of Qiao v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 84 (“Qiao”).
In that judgment, an application for judicial review by Mr Qiao of a decision of the then Administrative Appeals Tribunal (“Tribunal”) to refuse the applicant a Regional Employer Nomination (Permanent) (Class RN) visa was dismissed. Order 2 of that judgement was that the applicant pay the Minister’s legal costs fixed in the sum of $4,189.92. This judgement should be read in conjunction with the previous judgement.
BACKGROUND
It is appropriate to set out the procedural history of the matter. The applicant filed an application for judicial review in this Court on 25 April 2024. At the same time, he applied for an extension of time. The first respondent, through correspondence to the Court, consented to an application for an extension of time. This was granted on 18 July 2024 by Registrar Cummings.
On 15 August 2024, the first respondent applied to the Court for the application for judicial review to be summarily dismissed. The matter was heard before Registrar Cummings on 3, 20 and 27 September 2024.
On 4 October 2024, Registrar Cummings delivered judgement in the matter; Qiao v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 951. The Minister’s application for summary dismissal was dismissed. Costs in relation to the summary dismissal application was reserved as an issue to be dealt with at the final hearing by the trial judge. On 15 October 2024, the substantive application was listed for final hearing before me on 28 November 2024.
Mr Qiao subsequently filed an Application for Review seeking that the orders of Registrar Cummings with respect to costs being reserve should be set aside. Further orders were sought that the substantive hearing date of 28 November 2024 be vacated and that further timetabling orders should be made for the matter to be heard at a later date.
Counsel who appeared for the applicant on 28 November 2024 indicated that they were only briefed in relation to the costs application and if the application was not granted, they would withdraw from the proceedings. The Court noted that no notice of withdrawal had been filed in the Court and that the matter was listed for final hearing. Accordingly, the Court was of the view that Counsel who appeared in the matter appeared for all purposes and not simply those matters they consider themselves briefed to appear.
The application for the costs order of Registrar Cummings to be set aside was refused and the Court proceeded to deal with the substantive judicial review application, noting that the issue of costs would be dealt with following the delivery of any judgment in the substantive application.
On 29 January 2025, the Court delivered judgment in the substantive application. Submissions on the issue of costs were then taken noting that the applicant had been successful in the interlocutory application for summary dismissal but had ultimately been unsuccessful in the substantive judicial review application.
The legal representative for the Minister, Mr Cacaj, Solicitor from Clayton Utz, made an application that costs in the matter for both parties be either as assessed or agreed. No affidavit or other evidence was provided to the Court in support of that application, rather, Mr Cacaj asserted to the Court that it had been necessary to undertake additional work over and above what might be normally expected in such a manner. He submitted that costs in respect of both substantive proceedings and the interlocutory dismissal application should be as assessed or agreed noting, the applicant had been successful at the interlocutory stage of the proceedings.
The applicant was unrepresented for the remainder of the substantive judicial review application. In the Court’s view, he was not in a position to and was as a result unable to make any useful submissions in respect of costs, given his complete unfamiliarity with the issues that were being discussed.
The Law in Relation to Costs in the Migration Division of the FCFCOA
The issue as to what is the appropriate order for costs has been the subject of some judicial comment. In AHE18 v Minister for Immigration Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257, Judge Given noted at [6] that the award of costs is a discretionary matter for the Court. Considerations to be taken account of in the exercise by the Court of that discretion include the scale of costs set out at Schedule 2 of Part 2 Division 1 of the Federal Circuit and Family Court of Australia (Division Two) (General Federal Law Rules) 2021 (Cth) (“Rules”).
This provides a scale for migration proceedings which conclude on a final basis and not by discontinuance. It also includes a scale of costs for an interlocutory proceeding.
As noted by Burley J in FSJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433 at [45] there is no basis that costs should be at scale unless there is good reason, exceptional circumstances or a case of unusual complexity before one of the other options is selected. It is simply one of the options available to the Court.
The Order for Costs Made
Taking into account all of the circumstances in this matter, including that the Minister was unsuccessful in the interlocutory application, the fact that, in the Court’s view, for the reasons set out in the substantive judgment, the application for judicial review was doomed to failure, as the Court was bound by the decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123, a fact that was conceded in submissions filed by the applicant, the proceedings were not overly complicated.
The Court has also taken into account the fact that the applicant is now unrepresented and would be ill-equipped to participate in an assessment process in relation to costs.
In the Court’s view, the appropriate order was that the applicant pay the Minister’s costs of $8,371.30, being the scale amount under Schedule 2 of Part 2 Division 1 of the Rules, less an amount of $4,189.38, being the scale costs for an interlocutory proceeding. This leaves the amount of costs payable by the applicant for the unsuccessful outcome of the substantive judicial review application as $4,189.92 as ordered by the Court.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 February 2025
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