Federal Court of Australia

WKJD v Minister for Immigration and Citizenship [2025] FCA 845

ORDERS

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

1    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).

2    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 was later rejected by the High Court in CZA19 v Commonwealth of Australia; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8; 422 ALR 133, and by the Full Federal Court in Secretary, Department of Home Affairs v CRS20 [2025] FCAFC 3; 307 FCR 190. This clarification of the law occurred after the Minister made the Decision and the applicant filed his application for judicial review, but before the applicant’s filing of a further amended originating application.

3    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

4    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.

5    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).

6    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.

7    The Minister advances two reasons in support of his contention that the parties should bear their own costs.

8    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.

9    Against that background, the Minister highlights that the applicant did not raise the application of s 198AD, nor that the Minister’s application of s 198 constituted a jurisdictional error, at any point in this proceeding. Instead, the amended originating application raised a single ground of review, which alleged that the Minister did not give “proper, genuine and realistic consideration” to the applicant’s visa application. In the further amended originating application, that allegation was maintained (with expanded particulars), with new grounds added to allege a failure to consider an expert psychological report, the aforementioned failure to consider the correct legal consequences of the Decision, and that the Minister took into account an irrelevant consideration.

10    The Minister also contends that, in a related proceeding which is also currently in my docket (proceeding WAD 133 of 2024), the applicant is litigating against the Commonwealth alleging false imprisonment by pleading at paragraphs [8(c)] and [9] of the further amended statement of claim that s 198 of the Migration Act does apply to the applicant. Section 198(11) makes plain that ss 198 and 198AD are mutually exclusive. The result, the Minister argues, is that the applicant’s agreement in this proceeding that s 198AD applied to him, and therefore led to jurisdictional error on the part of the Minister, is inconsistent with the case being run in the related proceeding and thus represents a fundamental change in position by him.

11    The second reason advanced by the Minister is that, until he raised the issue as to s 198AD of the Migration Act on 10 June 2025, almost the entirety of the work performed on this matter concerned the applicant’s allegation that the Minister had not given proper consideration to his case. Between the filing of the amended originating application on 16 August 2024 and service on the Minister of the draft further amended originating application on 20 May 2025, that was the sole issue raised by the applicant. None of the steps taken by the Minister in response to the claim during this period, including the filing of extensive affidavit material and responding to both applications for interrogatories and discovery and a notice to produce, were directed towards any potential error concerning the Minister’s application of ss 198 and 198AD. Indeed, they were directed squarely towards the proper consideration ground.

12    Finally, the Minister relies on the fact that the proceeding was settled by consent between the parties promptly after his identification of the error, which he said only “clearly arose” after the Full Court’s decision in CRS20, which was delivered on 30 January 2025. The Minister relied on the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622, in which McHugh J explained that:

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.

13    In Lai Qin, his Honour proceeded to make no order as to costs, even though Ms Qin had succeeded in obtaining the outcome which she sought, namely that the Minister decided to grant her a protection visa following her challenge to the original decision to refuse her one. The Minister argues that the same position applies here, both because of the two aforementioned points, but also because he acted reasonably in defending the allegation as to the proper consideration ground. As such, the Minister contends that an order that each party pay its own costs would properly reflect the issues that were actually litigated between the parties, and the way in which the proceeding came to be settled.

14    I am unable to accept the Minister’s submissions in their entirety. The decision in Lai Qin is not on all fours with the present case. Contrary to the Minister’s submission, he did not take steps to promptly settle the matter as soon as the error became known. The error had in fact been identified by Wheelahan J in the first instance decision of CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 on 12 June 2024. I accept that the position could accurately be described as being more “clearly known” by the time the Full Court delivered its judgment on the appeal on 30 January 2025. Nevertheless, the Minister continued to litigate for a further five months on the basis of the grounds raised by the applicant, rather than conceding the error. The Minister’s position is not improved by his submission that the error was drawn to the applicant’s attention “against the Minister’s interests”. The Minister has no interests in the outcome of this litigation beyond ensuring that the law of the Parliament is applied correctly to the personal circumstances of a litigant who has been deprived of his liberty by the State. Considerations that might be relevant in a commercial context are wholly irrelevant.

15    Further, the alleged inconsistency in the parallel proceeding alleging false imprisonment does not exist. The applicant has in that matter pleaded that he was detained in purported exercise of the power in s 189(1) and/or s 196(1) of the Migration Act, an allegation that has been admitted by the Minister.

16    The Minister conceded that, were I against him on his primary position that there should be no order as to costs, an appropriate date from which costs should be ordered in the applicant’s favour would be 21 May 2025, being the day after the date on which the Minister was served with the draft further amended originating application. By that date, the Minister had known of the settled state of the law, by the decision of the Full Court in CRS20, for at least three and a half months. The error could have been conceded at that point.

DISPOSITION

17    The appropriate order is therefore that 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.

Associate:

Dated:    23 July 2025