Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17

• Jurisdiction: Australia Federal only
• Judge: BESANKO J
• Judgment Date: 16 July 2020
• Neutral Citation: [2020] FCA 1008
• Court: Federal Court
• Date: 16 July 2020

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCA 1008

Appeal from:	BTW17 v Minister for Immigration & Anor [2019] FCCA 3614
File number:	WAD 20 of 2020
Judge:	BESANKO J
Date of judgment:	16 July 2020
Catchwords:	PRACTICE AND PROCEDURE — application for a stay of a costs order pending the hearing and determination of an appeal to the Full Court of the Federal Court of Australia — whether the grounds of appeal are reasonably arguable — whether there is no reasonable probability of recovering the costs paid to the first respondent in the event that a stay is not granted and the appeal is successful — whether the appellant has engaged in any disentitling conduct
Legislation:	Migration Act 1958 (Cth) s 473DD
Cases cited:	Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Andrews v John Fairfax and Sons Limited [1979] 2 NSWLR 185 Bridges v Australian Consolidated Press Limited (unreported, New South Wales Court of Appeal, Sugerman P, 16 June 1970) BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; (2018) 258 FCR 511 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 Illawong Village Pty Limited v State Bank of New South Wales [2005] NSWSC 524 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615
Date of hearing:	7 July 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	45
Counsel for the Appellant:	Mr P Macliver
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr M G S Crowley
Solicitor for the First Respondent:	AUM Legal
Counsel for the Second Respondent:	The Second Respondent entered a submitting notice, save as to costs

ORDERS

		WAD 20 of 2020
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Appellant
AND:	BTW17 First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	16 JULY 2020

THE COURT ORDERS THAT:

1. The costs order, that is, paragraph 5, made by the Federal Circuit Court of Australia on 19 December 2019 be stayed pending the hearing and determination of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1. This is an interlocutory application dated 1 July 2020 in an appeal before the Court in which the appellant seeks the stay of an order made by the Federal Circuit Court of Australia on 19 December 2019 pending the hearing and determination of the appeal. The order which the appellant seeks to have stayed is that he pay the first respondent’s costs fixed in the amount of $7,328.00 (the costs order). The appellant is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the first respondent is known, for the purposes of this proceeding, as BTW17. The second respondent is the Immigration Assessment Authority (the Authority).

2. For the reasons which follow, I will make an order that the costs order be stayed pending the hearing and determination of the appeal.

Background

3. The first respondent is a Sinhalese Sri Lankan citizen and, as at 15 November 2019, he was in detention.

4. On 13 September 2016, the first respondent made an application for a Safe Haven Enterprise (subclass 790) visa (SHEV). On 6 February 2017, a delegate of the Minister (the delegate) refused to grant a SHEV to the first respondent. This decision was affirmed by the Authority on 23 March 2017.

5. Following a challenge by the first respondent which succeeded before the Full Court of this Court (see BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; (2018) 258 FCR 511), the Authority again affirmed the decision of the delegate to refuse to grant the first respondent a SHEV on 28 March 2018.

6. On 2 April 2018, the first respondent brought an application for judicial review of the Authority’s decision in the Federal Circuit Court. That application was heard on 19 November 2019 and, on 19 December 2019, the primary judge made orders, relevantly, that the decision of the Authority be quashed and the Minister pay the first respondent’s costs fixed in the amount of $7,328.00 (see BTW17 v Minister for Immigration & Anor [2019] FCCA 3614).

7. By a Notice of Appeal filed on 7 February 2020, the Minister appealed from the above orders. It should be noted that the Minister in his Notice of Appeal also sought an interlocutory order that the costs order be stayed.

The Evidence

8. The Minister relied upon an affidavit of Jonathon Papalia affirmed on 1 July 2020. Mr Papalia is a lawyer employed by the Australian Government Solicitor. He has the carriage of this matter on behalf of the Minister.

9. The first respondent relied upon an affidavit of Ganasan Arujunan affirmed on 6 July 2020. Mr Arujunan was the instructing solicitor for the first respondent in the application for judicial review in the Federal Circuit Court.

10. Both Mr Papalia and Mr Arujunan annexed to their affidavits copies of the correspondence that the parties’ solicitors exchanged regarding the payment of the costs which are the subject of the costs order. Subject to one matter, which is not material for the purposes of the present application, there is no dispute between the parties as to the content of that correspondence and, as such, it may be summarised as follows.

11. Mr Arujunan first contacted the appellant’s solicitor (Ms Allyson Ladhams) by email on 31 March 2020. Mr Arujunan attached to that email “the court order for payment of $7328 and the client’s authority to pay”. He said in the email that he would appreciate payment being made “as soon as possible”.

12. On 2 April 2020, Mr Arujunan telephoned Ms Ladhams “enquiring about the status of her instruction from the [Minister] on the costs payable”.

13. On 15 May 2020, Mr Arujunan again telephoned Ms Ladhams, but was unable to speak to her.

14. On 22 May 2020, Ms Ladhams sent an email to Mr Arujunan in which she said, relevantly:

As discussed a few weeks ago, the Department seeks your agreement to defer payment of FCC costs until after the outcome of the appeal is known. This is in circumstances where:

• the Minister has appealed the orders made by the FCC, including the costs order, and

• in the notice of appeal, the Minister has sought a stay of the orders made by the FCC.

15. Mr Arujunan states in his affidavit that it was his understanding from this correspondence that the solicitors for the Minister were genuinely seeking to settle “the costs ordered” and therefore he did not take steps to enforce the judgment. I take this to mean that it was Mr Arujunan’s belief between 22 May 2020 and 25 May 2020 that the Minister may well have conceded that he would comply with the costs order.

16. On 25 May 2020, Mr Arujunan responded to Ms Ladhams’ email indicating that, because the deferment of the costs request could not be agreed, he would appreciate the costs being paid within a week. To this end, he provided bank account details...