FEDERAL COURT OF AUSTRALIA
WKJD v Minister for Immigration and Citizenship [2025] FCA 845
File number: QUD 378 of 2024 Judgment of: SARAH C DERRINGTON J Date of judgment: 23 July 2025 Catchwords: COSTS – where proceeding substantively resolved by consent – where Minister conceded decision under review was affected by jurisdictional error – where basis of error admitted was different from that alleged by the applicant – whether parties are to bear their own costs Legislation: Migration Act 1958 (Cth) ss 189, 196, 198, 198AD, 501A Cases cited: CRS20 v Secretary, Department of Home Affairs [2024] FCA 619
CZA19 v Commonwealth of Australia; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8; 422 ALR 133
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Secretary, Department of Home Affairs v CRS20 [2025] FCAFC 3; 307 FCR 190
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 21 July 2025 Counsel for the Applicant: Mr M Crowley Solicitor for the Applicant: Zarifi Lawyers Counsel for the Respondent: Mr N Swan Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 378 of 2024
BETWEEN: WKJD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration and Citizenship”.
2.The Minister pay the applicant’s costs of the proceeding, including the costs relating to the interlocutory applications, from and including 21 May 2025, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SARAH C DERRINGTON J:
BACKGROUND
By his originating application dated 6 July 2024, the applicant applied for review of a decision made personally by the Minister for Immigration, Citizenship and Multicultural Affairs on 6 June 2024 (Decision). By the Decision, the Minister set aside an earlier decision of the then Administrative Appeals Tribunal and refused to grant the applicant a Safe Haven Enterprise (Class XE) visa under s 501A(2)(a) of the Migration Act 1958 (Cth).
On 25 June 2025, the Court made orders, by consent, quashing the Decision on the basis that s 198AD of the Migration Act applied to the applicant. The Minister concedes that he had erroneously considered that s 198, not s 198AD, applied to the applicant and that the “constitutional limit” of permissible detention under the doctrine of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 had been reached, such that the consequence of the Decision was that the applicant could no longer be detained, and instead had to be released from immigration detention despite pending consideration of his bridging visa. That understanding…
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- AGLC
- WKJD v Minister for Immigration and Citizenship [2025] FCA 845
- Case
- [2025] FCA 845
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CaseChat Overview and Summary
The primary legal issue before the court was the allocation of costs between the parties. The applicant argued that he should be awarded costs as he had successfully obtained the relief he sought. The Minister contended that the parties should bear their own costs, given that the error on which the decision was set aside was different from that argued by the applicant.
The court considered the arguments from both parties and noted that the Minister had conceded a jurisdictional error, leading to the decision being set aside. However, the basis of the error conceded by the Minister differed from that alleged by the applicant. Despite this, the court found that the applicant had effectively secured the substantive relief sought. Therefore, the court ruled that the applicant should be awarded costs, including those related to interlocutory applications.
The court ordered that the Minister pay the applicant's costs of the proceeding, including the costs relating to interlocutory applications, from and including 21 May 2025, to be taxed if not agreed. The court also amended the name of the respondent to "Minister for Immigration and Citizenship".
Orders
Orders of the court
1. The name of the respondent be amended to “Minister for Immigration and Citizenship”.
2. The Minister pay the applicant’s costs of the proceeding, including the costs relating to the interlocutory applications, from and including 21 May 2025, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The remaining issue is costs. The Minister contends that each party should bear his own costs. The applicant argues that the Minister should pay his costs.CONSIDERATION The applicant submits that, in substance, he has been wholly successful in this litigation, having secured the substantive relief of certiorari which was sought over the Decision. That position was reached after more than a year of litigation, several interlocutory applications, and more than one thousand pages of affidavit evidence filed on behalf of the Minister. He contends that there is no reason to deny him his costs of the proceeding, including the costs of the interlocutory applications for interrogatories and discovery which were resolved by consent on 5 June 2025, such that the general rule that costs follow the event ought to apply. The applicant contends that it does not follow from the basis of the Minister’s concession that he would not have succeeded on the grounds pursued in the further amended originating application. To the contrary, the applicant says that the concession is substantially similar to ground 3A of the further amended originating application, because both involved misconceptions of the legal consequences of the Decision. The Minister was served with a draft of the further amended originating application on 20 May 2025. Leave was granted on 5 June 2025 for it to be filed. Ground 3A alleged that the “Decision was vitiated by a constructive failure to exercise jurisdiction, or by a failure to consider the correct legal consequences, or by taking into account an irrelevant consideration, in that the Minister misconceived the legal consequences of the exercise of the power” (emphasis added). As I have already mentioned, the concession was made on the basis of the Minister’s acceptance that it was erroneous to assume that, because of s 198, the applicant had to be immediately released from immigration detention despite pending consideration of his bridging visa. The applicant’s contention was that there was error in the assumption of immediate release at all in circumstances where the Minister had referred consideration of his bridging visa to a delegate, because CZA19 and DBD24 established that the NZYQ constitutional limit is not engaged while any kind of visa application is under consideration. The Minister advances two reasons in support of his contention that the parties should bear their own costs. The first, which is directly responsive to the applicant’s argument above, is that the error conceded by the Minister was never part of the applicant’s case. Instead, the Minister says that it was he, and not the applicant, who first raised the error as to the application of s 198AD of the Migration Act “against his interests”, and who suggested that the matter be resolved by consent on the basis that the Decision should be set aside as being affected by jurisdictional error as a result. The affidavit of Jonathon Charles Hutton, lawyer at the Australian Government Solicitor, dated 16 July 2025 records at Annexure JCH-2 a copy of Mr Hutton’s email to Mr Zarifi, the applicant’s lawyer, on 10 June 2025 which in an attached proposed consent minute first identified the error.